November 1, 2014

OSHA putting teeth in rail whistle-blower law

For too many years, many railroads have tied managerial bonuses to low reportable injury rates among employees, creating a culture of fear through harassment and intimidation – a culture that discourages the reporting by workers of on-duty injuries and allows railroads to claim an industry safety award accompanied by glowing press releases as to its low employee-injury rate.

After collecting file drawers full of verified complaints from members of carrier harassment and intimidation following an on-duty injury, the UTU’s National Legislative Office was successful in shepherding through Congress the Federal Rail Safety Act of 2007.

It purpose is to protect rail workers from retaliation and threats of retaliation when they report injuries, report that a carrier violated safety laws or regulations, or if the employee refuses to work under certain unsafe conditions or refuses to authorize the use of any safety related equipment.

An employer also is prohibited from disciplining an employee for requesting medical or first-aid treatment, or for following a physician’s orders, a physician’s treatment plan, or medical advice.

Retaliation, including threats of retaliation, is defined as firing or laying off, blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failing to rehire, intimidation, reassignment affecting promotion prospects, or reducing pay or hours.

What was missing was tough enforcement of the law – but no more.

For the seventh time in recent months, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has taken strong action against a railroad for violating the law – and fully protecting the whistle-blowing employees who suffered harassment and intimidation by the offending carrier.

In the latest OSHA action, Union Pacific was ordered in August to pay more than $600,000 in back wages, punitive damages, compensatory damages and legal fees to three employees for improper termination and suspension – all in retaliation for reporting workplace injuries, said OSHA.

Said OSHA: “Union Pacific Railroad has created a climate of fear instead of a climate of safety. The company must take immediate steps to change this unacceptable pattern of retaliation.”

One UP conductor working out of Kansas City, Mo., was terminated after making repeated complaints to the railroad’s hotline about fall and trip hazards, missing roadway signs, other safety issues and reporting that a supervisor had violated safety procedures during a field test, said OSHA. The conductor was also cited for having a tattoo the railroad deemed as creating a hostile work environment – a tattoo OSHA said commemorated his prior military service.

A second conductor, working out of Kansas City, was suspended without pay after making several complains about “rough spots on the track,” said OSHA.

And a UP engineer, working out of Tucson, Ariz., was improperly terminated after reporting a workplace injury, said OSHA in imposing the awards and fines.

Separately in August, OSHA ordered BNSF to pay a conductor $300,000 to cover back wages, attorney’s fees and damages for improperly suspending her after she reported an injury. According to OSHA, the conductor twisted a knee in a BNSF yard in Seattle.

Although BNSF officials followed her to the emergency room, according to OSHA, the railroad later accused her of failing to report the injury in a timely manner and suspended her for 30 days without pay. BNSF also assessed her points, alleging she needed additional knowledge, training or behavior focus, said OSHA, which called that action “disciplining an employee who reports a work-related personal injury.”

In other recent OSHA actions:

* Norfolk Southern was ordered to pay a former employee more than $122,000 in compensatory and punitive damages, plus attorney fees, for improper termination after the employee reported an on-duty injury. OSHA also issued a startling statement validating what many UTU members have long suspected – that Norfolk Southern’s culture of employee harassment and intimidation permitted the railroad to “maintain the appearance of an exemplary safety record and continue its 22-consecutive-year record as recipient of the E.H.Harriman Gold Medal Rail Safety Award.”

According to OSHA, the injury occurred in a NS yard in Jamestown, N.C., while the worker was removing spikes. Fearing loss of employment, the worker did not report the injury until a re-injury occurred. The employee was subsequently terminated.

* Metro North Commuter Railroad was ordered to promote a worker and pay him more than $130,000 in compensatory and punitive damages, plus legal fees, for improperly discriminating against him by classifying the injury as not work-related and denying him a promotion.

* A Wisconsin Central conductor was awarded more than $125,000 in compensatory and punitive damages, plus legal fees, following unlawful harassment and intimidation as the result of reporting an injury.

* Union Pacific was ordered to rehire a machinist it had fired following the reporting of a work-related injury.

* BNSF was ordered to rehire a conductor after being found guilty of improper retaliation after the conductor filed an injury report.

In all cases, OSHA ordered the railroads to provide training on whistle-blower rights to its managers, supervisors and employees, and to notify employees of their rights to be able to file complains without fear of retaliation under the Federal Rail Safety Act.

A rail employee may file a whistle-blower complaint directly with OSHA, or may contact a UTU designated legal counsel, general chairperson or state legislative director for assistance.

A listing of UTU designated legal counsel is available at http://www.utu.org/, or may be obtained from local or general committee officers or state legislative directors.

To view a more detailed OSHA fact sheet, click on the following link:

http://www.osha.gov/Publications/OSHA-factsheet-whistleblower-railroad.pdf