BNSF Takes Unions to Court Over Vaccine Mandate

Add BNSF to the list of Class I railroads that are jostling with rail unions in court over implementing the COVID-19 vaccine mandate.

BNSF (NYSE: BRK-B) filed a lawsuit Sunday with the U.S. District Court for the Eastern District of Illinois asking the court to agree with the railroad's interpretation of the Railway Labor Act when it comes to complying with federal mandates. It also asked the court to issue a decision that would prevent the unions from striking because of the vaccine mandate.

The suit names four unions as defendants: the Brotherhood of Railroad Signalmen, the International Association of Sheet Metal, Air, Rail and Transportation Workers – Transportation Division (SMART-TD), the Brotherhood of Locomotive Engineers, and Trainmen and the Brotherhood of Maintenance of Way Employes Division.

BNSF joins Union Pacific UNP and Norfolk Southern NSC, both of which are also sparring with the unions in federal court over implementing President Joe Biden's vaccine mandate. The mandate, given via a Sept. 9 executive order, calls for federal employees and federal contractors to be vaccinated against the COVID-19 virus.

As its Class I peers, BNSF argues that requiring the vaccine for its employees is a right under existing labor contracts and as a result, the case should be considered a "minor dispute" under the Railway Labor Act.

"BNSF has a long-standing and well-settled past practice of unilaterally changing its rules and policies governing position requirements, medical standards, and safety in response to lawful federal government directives," attorneys representing BNSF said in Sunday's filing. "More specifically, as applicable federal laws and regulations change – either as a result of new laws being enacted or of existing laws being amended – BNSF routinely modifies its own rules to comply, even when doing so requires changes in its employees' terms and conditions of employment. Accordingly, BNSF has an implied right under its labor agreements to implement new federally mandated rules, including but not limited to with respect to vaccinations."

BNSF pointed to a number of federal mandates that did not raise the same level of objections from the unions, such as the Federal Railroad Administration's requirement to wear face coverings for certain railroad workers during the pandemic, as well as fitness-for-duty standards for conductors in the form of vision and hearing tests.

Another example is BNSF's compliance with changes in federal requirements regarding drug and alcohol testing.

"The rail industry is a ‘reserved rights' industry. As such, a railroad may do unilaterally whatever is not proscribed by the CBA [collective bargaining agreement]. Extensive authority from railroad arbitrations supports that position. Moreover, there are numerous awards holding that a carrier enjoys broad latitude to set the requirements for holding a position (both generally and specifically when a government directive is at issue)," BNSF said. "None of the defendants can identify or have identified any specific CBA rule that a new vaccine policy would violate. Hence, BNSF has a reserved right under its labor agreements to impose a vaccine policy."

The unions have said in their lawsuits against UP and NS that while the unions support their members getting the vaccine, they contend that federal law bars the railroads from changing rates of pay, rules, and working conditions while negotiations are ongoing. The unions have been in contract negotiations with the freight railroads since November 2019.

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