July 29, 2014

OSHA raps UP again for whistleblower violation

Once again, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has ordered a railroad to reinstate an employee and pay him back wages for violating an employee’s rights as a whistleblower.

In the latest OSHA order, Union Pacific was ordered immediately to reinstate an employee in Idaho and pay him back wages, compensatory and punitive damages and attorney’s fees totally more than $300,000.

The unidentified UP employee had filed a whistleblower complaint with OSHA, alleging suspension without pay and then termination 23 days after notifying the company of an on-the-job injury. OSHA’s investigation found reasonable cause to believe that the disciplinary charges and termination were not based on the complainant breaking a work rule, but on the complainant reporting an injury to the railroad, in violation of the Federal Railroad Safety Act’s whistleblower protection provisions.

“The safety of all workers is endangered when employers intimidate injured workers so that they do not report injuries,” OSHA said in assessing the penalties.

This was the fifth OSHA whistleblower violation against Union Pacific since 2009. BNSF, Metro North Railroad, Norfolk Southern and Wisconsin Central also have been penalized by OSHA for violating workers’ whistleblower rights.

As UTU rail members are painfully aware, railroads have routinely 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.

The law’s 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 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.

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://utu.org/designated-legal-counsel/ 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:

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