Conductor wins $125,000 in whistle-blower complaint

A Wisconsin Central conductor has won a whistle-blower complaint against the carrier – collecting more than $125,000 in compensatory and punitive damages – for unlawful harassment and intimidation as the result of reporting an injury.

This was the third successful whistle-blower complaint filed against a railroad in recent months for violation of a worker’s rights under the Federal Rail Safety Act of 2007.

In the most recent case, the Occupational Safety and Health Administration ordered Wisconsin Central to cease and desist in its practice of automatically issuing notices of investigation for employees who report work injuries.

OSHA also ordered the carrier to pay the conductor lost wages, plus interest; $100,000 in punitive damages for its reckless disregard for the law; and $25,000 in compensatory damages for mental pain and emotional distress due to the humiliation and loss of income from the wrongful suspension. OSHA also ordered Wisconsin Central to provide all employees with a fact sheet advising them of their rights for reporting work-related injuries and illnesses.

According to the conductor’s attorney, the conductor reported an on-the-job injury, as required by railroad rules. The railroad subsequently issued a notice ordering the conductor to attend a formal investigation to ascertain his responsibility for sustaining a personal injury and to determine if the conductor violated any railroad rules.

Although it was determined that the railroad had abandoned previous efforts to treat an ice covered service road that the conductor was required to use in the performance of duties – resulting in the injury – Wisconsin Central found the conductor guilty of violating several rules and issued a 10-day suspension. The railroad alleged that by sustaining an injury, the conductor had violated the railroad’s rules.

Earlier this year, OSHA required Union Pacific to rehire a machinist it had fired following the reporting of a work-related injury, finding UP had improperly retaliated against him.

And in December 2010, OSHA ordered a conductor employed by BNSF to be reinstated after finding BNSF guilty of improper retaliation after the conductor filed an injury report.

The Federal Rail Safety Act of 2007 protects 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.

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.

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.

This protection is known as “whistle-blower protection,” and the federal law is enforced by OSHA, as it was against Wisconsin Central, UP and BNSF.

Relief may include reinstatement with the same seniority and benefits, back pay with interest, compensatory damages (including witness and legal fees), and punitive damages as high as $250,000.

A rail employee may file the 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