Archive for the ‘FELA Updates’ Category

Essential book informs members about railroad safety laws

Larry Mann, rail safety coordinator to SMART TD’s Designated Legal Counsel.

“What Every Railroader Should Know,” written by Lawrence Mann, rail safety coordinator to SMART Transportation Division’s Designated Legal Counsel (DLC), is an extensive and comprehensive survey of federal railroad safety law as it pertains to rail workers and is essential reading for TD members concerned about how the law protects them.

Mann, who has served as rail safety coordinator for the DLC since the position was created in 2008, has been recognized by peers as the “nation’s foremost authority on railroad safety legislation and regulation.”

He has given SMART Transportation Division permission to distribute his 700-plus page book via PDF on the TD website.

Mo. Supreme Court rules FELA awards not taxable

scales_gavelIn cases brought by the law firm of Schlichter, Bogard & Denton, LLP of St. Louis on behalf of injured railroad workers, two courts have ruled favorably to workers that FELA judgments are not subject to tax withholding under the Railroad Retirement Tax Act (RRTA).

The Missouri Supreme Court in Mickey v. BNSF Railway Co., No. SC93591 (July 8, 2014), available here, stopped a trend of state supreme court rulings that had held FELA judgments for injured railroad workers received less than the full amount the jury awarded them.

In a detailed opinion, the Missouri Supreme Court explained that the contrary decisions of the Nebraska and Iowa courts were based on an incomplete analysis of the law, and that under a proper analysis of the law FELA judgments are not subject to tax withholding, but must be paid in full.

This decision comes one day after the United States District Court for the Eastern District of Missouri also ruled that FELA judgments are not subject to RRTA taxes (Cowden v. BNSF Railway Co., No. 08-1534, Doc. 289 (E.D.Mo. July 7, 2014)).

The decisions in Mickey, which involved a BNSF railroad employee from St. Louis, Mo., and Cowden, which involved a BNSF railroad employee from Springfield, Mo., (both of which were handled by Schlichter Bogard & Denton) should end the railroads’ recent attempts to short-change employees of the personal injury damages juries have awarded them with this now twice-repudiated, tax argument.

Justice Department weighs in on BNSF appeal

The U.S. Justice Department is weighing in on an appeal by BNSF railroad over a $145,000 judgment to a former employee hurt on the job, saying a judge’s order to pay the full amount without deducting federal railroad retirement taxes could be “harmful to the United States because … it may interfere with federal tax collection.”

The case stems from a lawsuit filed in 2004 by Eddie Heckman, who was injured on the job a year earlier.

Read the complete Associated Press article at The Omaha World Herald.

OSHA, BNSF reach accord over whistleblowers

OSHA logo; OSHAWASHINGTON — The U.S. Department of Labor’s Occupational Safety and Health Administration has signed an accord with BNSF Railway Co. announcing BNSF’s voluntary revision of several personnel policies that OSHA alleged violated the whistleblower provisions of the Federal Railroad Safety Act and dissuaded workers from reporting on-the-job injuries.

FRSA’s Section 20109 protects railroad workers from retaliation for, among other acts, reporting suspected violations of federal laws and regulations related to railroad safety and security, hazardous safety or security conditions, and on-the-job injuries.

“This is a tremendous victory for UTU members and all railroad workers employed by BNSF,” said UTU International President Mike Futhey. “The Obama administration’s efforts to stop the harassment and intimidation of employees concerned about safety in the workplace is a win for all workers. It is just one of the reasons why this union supported President Obama’s reelection.”

The major terms of the accord include:

•Changing BNSF’s disciplinary policy so that injuries no longer play a role in determining the length of an employee’s probation following a record suspension for a serious rule violation. As of Aug. 31, 2012, BNSF has reduced the probations of 36 employees who were serving longer probations because they had been injured on-the-job.

•Eliminating a policy that assigned points to employees who sustained on-the-job injuries.

•Revising a program that required increased safety counseling and prescribed operations testing so that work-related injuries will no longer be the basis for enrolling employees in the program. As part of the negotiations leading up to the accord, BNSF removed from the program approximately 400 workers.

•Instituting a higher level review by BNSF’s upper management and legal department for cases in which an employee who reports an on-duty personal injury is also assessed discipline related to the incident giving rise to the injury.

•Implementing a training program for BNSF’s managers and labor relations and human resources professionals to educate them about their responsibilities under the FRSA. The training will be incorporated into BNSF’s annual supervisor certification program.

•Making settlement offers in 36 cases to employees who filed whistleblower complaints with OSHA alleging they were harmed by one or more of the company’s previous policies.

“Protecting America’s railroad workers who report on-the-job injuries from retaliation is an essential element in OSHA’s mission. This accord makes significant progress toward ensuring that BNSF employees who report injuries do not suffer any adverse consequences for doing so,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels.

“It also sets the tone for other railroad employers throughout the U.S. to take steps to ensure that their workers are not harassed, intimidated or terminated, in whole or part, for reporting workplace injuries.”

“Ensuring that employees can report injuries or illnesses without fear of retaliation is crucial to protecting worker safety and health,” said Michaels. “If employees do not feel free to report injuries or illnesses, the employer’s entire workforce is put at risk because employers do not learn of and correct dangerous conditions that have resulted in injuries.”

To review the accord between OSHA and BNSF, click here.

SEPTA fails in backdoor attempt to escape FELA

It is no secret that railroads have tried with all their king’s horsemen and all their king’s men (and women) to send to the dust bin of history the Federal Employers’ Liability Act (FELA), considered the best friend of rail workers in forcing carriers to improve workplace safety.

That 1908 law allows railroaders to recover civil compensatory and punitive damages when railroads fail to maintain a safe workplace, resulting in injury, dismemberment or death.

The latest assault on FELA was a backdoor escape attempt by the Southeastern Pennsylvania Transportation Authority (SEPTA), which sought to declare itself an instrumentality of the State of Pennsylvania, and thus immune, under the U.S. Constitution’s 11th Amendment’s sovereign immunity clause, from such lawsuits.

The Pennsylvania Supreme Court termed the argument bogus, slamming that back door on SEPTA before it could wiggle out. Citing a history of U.S. Supreme Court decisions, Pennsylvania’s highest court ruled that SEPTA, as every other railroad operating in interstate commerce, is and remains subject to FELA.

SEPTA had sought to force its injured workers to file for workers’ compensation under the state’s federal/state workers’ compensation law, rather than bring a lawsuit under provisions of FELA.

Ruled the Pennsylvania Supreme Court:

‘We discern no threat to the dignity of the Commonwealth of Pennsylvania whenever a private individual commences a FELA suit in the courts of this Commonwealth, nor do we find the treasury of the Commonwealth to be threatened by a FELA suit in our courts. Accordingly, we conclude SEPTA is not an arm of the Commonwealth of Pennsylvania, and thus not entitled to claim immunity under the Eleventh Amendment.”

In June 2011, the U.S. Supreme Court declined a railroad attempt to weaken FELA by tightening the standards of proof injured rail workers must demonstrate to win an award under FELA. Attempts by railroads to have Congress scuttle FELA have not progressed beyond a committee hearing stage.

The UTU, Sheet Metal Workers’ International Association and other rail labor organizations joined in bringing the SEPTA case to the Pennsylvania Supreme Court for final determination.

SEPTA commuter rail service was transferred from Conrail to SEPTA, which also provides commuter bus and transit services, in 1983.

To read the court’s decision, click here.

Supreme Court declines to weaken FELA

WASHINGTON — In a 5-4 decision, the Supreme Court June 23 declined to tighten the standard of proof injured rail workers must demonstrate to win an award under the Federal Employers’ Liability Act (FELA).

The ruling is a significant victory for injured rail workers.

The FELA — a railroader’s most cherished workplace safety assurance — was passed by Congress more than a century ago to make railroads liable if an employee injury or death results “in whole or in part” from the negligence of any of its officers, agents or employees, or from any defect or insufficiency in equipment or roadbed.

At the time of the FELA’s passage in 1908, more than 4,000 railroaders were killed annually, and some 63,000 more suffered serious injuries each year.

The Supreme Court previously held that the FELA was “designed to put on the railroad industry some of the costs of the legs, arms, eyes, and lives which it consumed in its operation.”

The June 23 Supreme Court decision turned on a crossover vote by conservative Justice Clarence Thomas, who joined liberals Ruth Bader Ginsburg, Sandra Sotomayor, Elena Kagan and Stephen Bryer to rule against CSX and in favor of an injured CSX locomotive engineer.

The engineer had won a monetary award from a federal district court after being injured on the job in 2004 while operating a locomotive that the engineer contended was not suited for switching operations.

CSX twice unsuccessfully appealed the trial court’s decision – the first before the 7th Circuit Court of Appeals and the second appeal before the Supreme Court. CSX contended in both unsuccessful appeals that injured rail workers should meet a more demanding standard of proof as is required in all non-FELA personal injury cases, not, as the trial court instructed the jury, that CSX was responsible for negligence if its negligence “played a part – no matter how small – in bringing about the injury.”

CSX sought a ruling that the employer’s action must be the “primary cause” of the injury. In fact, the “in whole or in part” language comes from the FELA itself, and that legislative language clearly impressed the Supreme Court’s majority in this case.

Writing for the majority, Justice Ginsburg said: “Juries in such cases are properly instructed that a defendant railroad ‘caused or contributed to’ a railroad worker’s injury ‘if [the railroad’s] negligence played a part – no matter how small – in bringing about the injury.’ That, indeed, is the test Congress prescribed for proximate causation in FELA cases.”

Earlier Supreme Court cases upheld the right of unions to advise injured workers to obtain expert legal advice, and the right of unions to designate legal counsel possessing specialized knowledge in railroad operations and the FELA.

A listing of UTU Designated Legal Counsel is provided at www.utu.org by moving the cursor to “About UTU” in the red horizontal bar at the top of the home page and then clicking on “Designated Legal Counsel.” A listing of Designated Legal Counsel also may be obtained from local union officers or your general chairpersons.

If you are injured on the job, the FELA and your UTU Designated Legal Counsel are the best friends you and your family have. These successful trial lawyers are specialists in handling FELA claims, and are fully experienced in dealing with railroad claim agents and railroad lawyers.

And remember: Contributory negligence is not a bar to recovering under the FELA; and the FELA prohibits railroads from retaliating against employees who provide Designated Legal Counsel with factual information on injuries to fellow employees, or who testify in support of injured workers.

Each FELA lawsuit sends to the carriers a message about improving workplace safety that they cannot ignore

To read the June 23 Supreme Court decision, CSX Transportation, Inc. v. Robert McBride, click on the following link:

www.supremecourt.gov/opinions/10pdf/10-235.pdf

AAR confirms FELA saves lives

Rail operating employees know the Federal Employers’ Liability Act (FELA) saves lives by forcing railroads to address safety problems carriers might ignore if the penalty were no more than the equivalent of a parking ticket.

Confirmation now comes from the Association of American Railroads (AAR), which speaks for the carriers. A July 29 presentation by AAR researcher Peter French highlights declining employee deaths and injuries during a time period that coincides with aggressive filing of FELA law suits.

Sadly, and too often, only after UTU designated legal counsel win multi-million dollar lawsuits against railroads, because profits are put ahead of safety, do carriers respond by taking workplace safety more seriously.

The FELA is an effective prod that keeps railroads focused on improving workplace safety.

The Supreme Court said the FELA is intended to “impel the carrier to avoid and prevent negligent acts and omissions.” Justice William O. Douglas said, “The FELA was designed to put on the railroad industry some of the costs of the legs, arms, eyes, and lives which it consumed in its operation.”

Notwithstanding their own data showing the success of FELA in reducing employee fatalities and injuries, the railroads — and by every means possible — continue their attempt to repeal the 100-year-old FELA for the sole purpose of avoiding liability.

Perhaps this is not surprising for an industry best known for officials who proclaimed, “The public be damned,” and, “I can hire one-half of the working class to kill the other half.”

The painful facts are that before Congress passed the FELA in 1908, more than 4,300 railroaders were killed annually, and almost 63,000 more railroad employees were injured each year.

The FELA has helped to slash those numbers by making railroads liable if an employee injury or death results in whole or in part from the negligence of any of its officers, agents or employees, or from any defect or insufficiency in equipment or roadbed.

The AAR presentation highlights that “railroads have dramatically improved safety over the last two and one-half decades.” It doesn’t require an economist to conclude that were the profit-seeking railroads not liable for their own negligence, as provided by the FELA, there likely would have been no such improvement.

Still, the 62 employee workplace deaths during calendar years 2005-2007 — and an annual injury rate of more than 5,000 rail workers — are too many. That is why the UTU and other rail labor unions continue to defend the importance of the FELA, and designate experienced legal counsel to assist brothers and sisters who fall victim to unsafe working conditions.

Unlike other industries, when rail workers are injured on the job they do not suffer simply cuts, bruises and sprains. They suffer amputations, other career ending injuries, and death.

If you are injured on the job, the FELA and your UTU Designated Legal Counsel are the best friends you and your family have.  These successful trial lawyers are specialists in handling FELA claims, and are fully experienced in dealing with railroad claim agents and railroad lawyers.

And remember: Contributory negligence is not a bar to recovering under the FELA; and the FELA prohibits railroads from retaliating against employees who provide Designated Legal Counsel with factual information on injuries to fellow employees, or who testify in support of injured workers. Each FELA lawsuit sends to the carriers a message they cannot ignore.

A listing of UTU Designated Legal Counsel — attorneys who answer to the UTU — is provided at www.utu.org (by clicking on “Designated Legal Counsel” under “About UTU”), or a listing may be obtained from local union officers or your general chairpersons.

As the AAR has confirmed, the FELA saves employee lives.

To view the AAR presentation, click here. The presentation is a Microsoft Powerpoint slide show and that software is required to view the presentation.

Happy 100th birthday, FELA

By Mike Futhey
International President

A railroader’s most cherished workplace safety assurance is the Federal Employers’ Liability Act (FELA), which turns 100 years old this month.

Railroading is among the most dangerous occupations in America. In an industry that too often puts profits ahead of safety, the FELA is a powerful prod to improved workplace safety.

“There should be legislation to secure pecuniary compensation to workmen suffering from accidents,” said President Teddy Roosevelt in 1907, in urging Congress to pass the FELA.

Indeed, in the year leading up to the FELA’s passage, 4,353 railroaders were killed, and 62,689 more railroad employees were injured, according to data reported in 1908 by the Interstate Commerce Commission.

Years earlier, when viewing similar appalling data, President Benjamin Harrison declared, “It is a reproach to our civilization that any class of American workmen should, in the pursuit of a necessary and useful vocation, be subjected to a peril of life and limb as great as that of a soldier in war.”

President Harrison was correct to be appalled by the carnage. History records that while train and engine-service employees then constituted just 20 percent of the railroad workforce, they accounted for some 60 percent of all fatalities and injuries. In 1889, for every 117 trainmen employed, one was killed; and for every 12 employed, one was injured.

Although some states had passed legislation allowing injured workers to seek compensation for workplace injuries, it was recognized that railroad employees were engaged in interstate commerce on trains that frequently moved across state lines, creating significant legal hurdles.

With encouragement from UTU predecessor unions, Congress passed, and President Roosevelt signed, the FELA on April 22, 1908.

The FELA made railroads liable if an employee injury or death results in whole or in part from the negligence of any of its officers, agents or employees, or from any defect or insufficiency in equipment or roadbed. Contributory negligence on the part of the injured worker does not bar a recovery under the FELA.

The Supreme Court observed that the FELA is intended to “impel the carrier to avoid and prevent negligent acts and omissions.”

The Supreme Court also upheld the right of unions to advise injured workers to obtain expert legal advice, and the right of unions to designate legal counsel possessing specialized knowledge in railroad operations and the FELA.

In fact, the FELA prohibits railroads from retaliating against employees who provide Designated Legal Counsel with factual information on injuries to fellow employees, or who testify in support of injured workers.

When the carriers and their anti-labor friends in Congress made one of their many unsuccessful attempts to repeal the FELA in 1995, the U.S. General Accounting Office — known as Congress’s “watchdog,” issued a report concluding that the FELA is an effective law, working as intended.

“The FELA was designed to put on the railroad industry some of the costs of the legs, arms, eyes, and lives which it consumed in its operation,” wrote Supreme Court Justice William O. Douglas in 1948.

If you are injured on the job, the FELA and your UTU Designated Legal Counsel are the best friends you and your family have. These successful trial lawyers are specialists in handling FELA claims, and are fully experienced in dealing with railroad claim agents and railroad lawyers.

A listing of UTU Designated Legal Counsel — attorneys who answer to the UTU — is provided at www.utu.org (by clicking on “Designated Legal Counsel” in the blue tile box on the left of the home page), or a listing may be obtained from local union officers or your general chairpersons.

The UTU News also is featuring photos and information — two each month — on our Designated Legal Counsel. Look for that feature in each issue when it arrives in the mail.

Carriers continue to lobby Congress to repeal the FELA — each attempt so far blunted by the UTU, and with credit for the successful defense of the FELA rooted in member contributions to the UTU PAC.

Join me in wishing the FELA a happy 100th birthday.

Even better, consider making a special contribution to the UTU PAC to help us continue our vigilance in defending the FELA.

Must I see doctors chosen by the railroad?

FELA Update
By Mark Allen
Coordinator of UTU Designated Legal Counsel

I frequently hear about injured railroad workers who are confused by statements made to them by railroad claims department persons or supervisors that if they don’t see doctors chosen by the railroad, their medical bills won’t be paid.

Let’s be clear. You have the right to see a doctor of your own choice.

You have your own insurance plan and can submit payment for the medical bills to your own insurance carrier.

If some railroad official or claims-department person says, “We won’t pay the bills” unless you see a doctor of THEIR choice, it means simply that the claims department will not pay for it.

It does not prevent you from using your own insurance to see a doctor of YOUR choice.

In my experience, hurt workers often are sent to doctors or clinics that the railroad uses on a frequent basis. Many times, such doctors or clinics seem to be more interested in returning the injured worker back to the job than in doing a thorough diagnostic evaluation to determine what injuries the worker might have.

While a speedy return to work is a goal upon which we all can agree, it also is of great importance that a worker have confidence that his or her doctor will pay attention to the worker’s problems, and will make a sincere effort to find out what is causing the pain or symptoms before sending the worker back on the job.

No one wants to risk additional injury or aggravation because a doctor who cares more about getting referrals from the railroad rushes an injured worker back to the job too soon.

Don’t be misled by “we won’t pay for it” statements. If you are not satisfied with the railroad’s choice of doctors or if you don’t have confidence in them, take out your insurance card and go to the doctor of your own choice.

Proving negligence under FELA

FELA Update
By Mark Allen
Coordinator of UTU Designated Legal Counsel

The Federal Employers’ Liability Act (FELA) was enacted by Congress in 1908 to give railroad employees the right, under federal law, to recover damages from their employers for injuries occurring at work.

However, generally, there must be proof of negligence on the part of the railroad that caused or contributed to the employee’s injury. Simply put, this means that the railroad must exercise reasonable care for the safety of its employees. The railroad must provide its employees with a reasonably safe place to work. Its failure to do so is negligence.

The duty to provide a safe place to work includes the furnishing of safe tools and equipment, the selection of proper methods to do the work, the furnishing of sufficient help, and the adoption and enforcement of proper procedures. The railroad may also be negligent if it fails to adopt and enforce safety rules and practices, or by allowing unsafe practices to exist. The fact that unsafe practices and customs are standard in the industry is no defense.

An exception to the requirement for proof of negligence under FELA exists when an injury occurs because the railroad has violated either the Safety Appliance Act or the Locomotive Inspection Act.

The Safety Appliance Act relates to railroad cars and their safety devices and requires devices such as couplers, power brakes, grab irons, etc., to be free from defects. The Locomotive Inspection Act requires that the railroad keep its locomotives and tenders in proper and safe condition.

If the violation of either one of these laws causes injury to an employee, proof of negligence is not required and the railroad is strictly held at fault.

When you have a question about whether an action of the railroad was negligent that caused you injury or whether proof of negligence is required, contact a UTU Designated Legal Counsel. Go to www.utu.org and click on “Designated Legal Counsel” on the left side of the page; or ask your local union officers for the list.

UTU Designated Legal Counsel Rules of Conduct

All Designated Legal Counsel (DLC) shall agree as a condition of becoming or remaining a DLC that he or she will be subject to and fully comply with the Rules of Conduct. Each DLC shall, as a condition of becoming or remaining a DLC, shall specifically in writing waive any and all recourse to any court of law or any tribunal to challenge any action of the officers and agents of the UTU which in any way relates to the DLC program.

All DLC shall agree as a condition of becoming or remaining UTU Designated Legal Counsel that he or she will comply with and be subject to the ABA Model Rules of Professional Conduct as well as the state-law professional responsibility rules and canons for the jurisdictions in which they practice.

The agents of the Union, its officers, staff, and representatives have a duty to exercise their authority solely on behalf of and for the benefit of the UTU and its members. The agents of the union must set aside their personal interests and act in the best interests of the Union and its members. No prospective or current DLC shall aid or abet anyone in the violation of their fiduciary duty.

Because an agent of the UTU must make each decision based solely on the best interests of the union, it is necessary that the agent be free of improper outside influences that would interfere with an ordinary person’s objectivity in making the decision. No prospective or current DLC shall offer or attempt to improperly influence any decision of an agent of the UTU.

Any DLC solicited for a payment or contribution by any UTU or UTUIA officer, staff member, employee, or member must report the details, including the date, time and amount of such solicitation to the International President and UTU Coordinator of Designated Legal Counsel immediately in writing. This is in addition to and not a substitute for any other legal or ethical requirement that may attach.

All DLC’s will be permitted to become members of UTU, paying all dues except General Committee of Adjustment dues, and should be available and willing to attend their local’s meetings and answer questions concerning the FELA and related laws.

No DLC, under any circumstances, at any time, shall become involved in union politics. DLC’s may, but are not required to, sponsor generic union social and fraternal events and Regional Meetings to promote unity and education among the union’s officers and members.

Any request by a UTU member for a political contribution for a union election from a DLC and any provision by a DLC of a political contribution for a union election of any kind including, without limitation, anything of value such as money, goods, services or entertainment to or on behalf of a candidate for union office is absolutely prohibited. Any such solicitation must be immediately reported to the UTU Coordinator of Designated Legal Counsel. The employment of or provision of office space to full-time UTU elected officers, staff or employees is prohibited.

Under no circumstances is a referral fee to be paid to any UTU member or union officer who recommends the DLC to an injured employee. If such a fee is requested, the International President and UTU Coordinator of Designated Legal Counsel shall be immediately notified.

As provided in ABA Model Rule 5.4: “A lawyer or law firm shall not share legal fees with a non-lawyer.” Each DLC and members of their firm must be willing to give advice concerning the rights and liabilities of union members for on-the-job injury under FELA and related laws. A DLC may charge a contingency fee of not more than 25 percent of the recovery, exclusive of costs, for cases involving a SMART TD member concerning an on-the-job injury under FELA and related laws. In the event that it is necessary to file suit regarding that matter, the DLC may charge a contingency fee of not more than 33 percent, exclusive of costs.

Each DLC and members of their firm must be willing to give advice concerning the rights and liabilities of union members for on-the-job injury under FELA and related laws.

Each DLC and members of their firm must be willing to handle all actionable injury cases, not only those of high potential recovery. They must also be willing to handle related matters on an injured member’s behalf at the Railroad Retirement Board and actionable claims under the Rail Safety Improvement Act.

DLC’s and members of their firm must be willing to give advice concerning the rights and liabilities of union members for on-the-job injuries, either by telephone or by interview, at no cost to the union member, and should return all members’ calls related to such issues.

Any civil, criminal, administrative or bar complaint, investigation or proceeding commenced against a DLC by any union member or governmental entity shall be immediately reported to the International President and the UTU Coordinator of Designated Legal Counsel.

If a state bar association or other body recommends a finding that a DLC or a member of their firm violated ethical obligations, or such violations are found by any court or other adjudicatory body, the DLC shall immediately notify the International President and the General Counsel.

DLC’s should immediately advise the UTU International President prior to any significant change in the membership of their firms (e.g., merger, consolidation, departures, etc.).

The appointment and continued DLC designation is at the sole discretion of the UTU International President.

The failure to comply with any of these Rules shall be cause for sanctions up to and including immediate revocation of the DLC designation by the UTU International President, and in the case of UTU members, referral to the International President for corrective action consistent with the UTU Constitution.

The United Transportation Union shall adopt a complaint procedure to review inquiries or complaints concerning alleged violation of the Rules of Conduct. Any complaint shall be forwarded in writing to the UTU Coordinator of Designated Legal Counsel.