August 20, 2014

What part of ‘no’ can’t railroads understand?

OSHA logo; OSHASadly, there is a part of “no” that railroads just can’t understand. So, once again, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has hit a railroad in the wallet for violating an employee’s rights as protected under the Federal Railroad Safety Act of 1970, which was supplemented by the Rail Safety Improvement Act of 2008.

The latest wallet-lightening fine was imposed by OSHA against Union Pacific for retaliating against a Pocatello, Idaho, based locomotive engineer who was forced to work and prevented from seeking medical treatment for a migraine headache, blurred vision, dizziness, vomiting and a bloody nose.

OSHA found that the engineer’s supervisor – who also was ordered to pay a portion of the fine – used “threats and intimidation to dissuade the engineer from seeking or gaining access to medical care during his shift.”

Yes, the UP supervisor chose to order an ill locomotive engineer, whose situational awareness was clearly compromised, to operate the train.

Said OSHA in imposing more than $25,000 in punitive and compensatory damages, plus attorney fees: “It is critically important that Union Pacific Railroad employees know that OSHA intends to defend the rights of workers to report safety concerns. We will bring the full force of the law to make sure workers who are retaliated against for reporting health and safety concerns are made whole.”

Incredibly, this was the sixth time since 2009 that OSHA has found Union Pacific in violation of an employee’s rights enumerated by the Federal Railroad Safety Act of 1970 and the Rail Safety Improvement Act of 2008. BNSF, Metro North Railroad, Norfolk Southern and Wisconsin Central also have been penalized by OSHA for similar violations.

In late 2011, Union Pacific was ordered immediately to reinstate an employee and pay him back wages, compensatory and punitive damages and attorney fees totaling more than $300,000 after the employee was suspended, without pay, and then terminated after notifying UP of an on-the-job injury.

The Federal Railroad Safety Act of 1970 extended whistleblower protection to employees who are retaliated against for reporting an injury or illness requiring medical attention. The Rail Safety Improvement Act of 2008 added additional requirements ensuring injured workers receive prompt medical attention, and established prohibitions on carrier intimidation and harassment of injured workers aimed at ending a culture that placed the winning of carrier safety awards and year-end managerial bonuses as a higher priority than treatment and prevention of injuries.

The purpose of these laws — passed by Congress after the UTU documented a railroad culture of harassment and intimidation against injured and ill workers — is to protect rail workers from retaliation and threats of retaliation when they report injuries or illness, 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 is outright 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.

Earlier this year, OSHA elevated in agency priority its whistleblower protection efforts, placing enforcement directly under OSHA’s assistant secretary of labor. OSHA said the elevation was an effort “to strengthen employees’ voices in the workplace.”

UTU designated legal counsel have pledged to investigate and assist UTU members in bringing complaints under these laws.

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