Posts Tagged ‘whistleblower’

BNSF ordered to pay $12K to disciplined worker

OSHA logo; OSHAKANSAS CITY, Mo. – BNSF Railway Co. has been found in violation of the Federal Railroad Safety Act* by the U.S. Department of Labor’s Occupational Safety and Health Administration. OSHA’s investigation upheld allegations that the company disciplined an employee assigned to its station in Ottumwa, Iowa, for following a physician’s treatment plan. The company has been ordered to pay the conductor $12,000 in damages, remove disciplinary information from the employee’s personnel record and provide whistleblower rights information to all its employees.

“Workers should never be forced to choose between staying healthy or facing disciplinary action,” said Marcia P. Drumm, OSHA’s acting regional administrator in Kansas City. “Whistleblower protections play an important role in keeping workplaces safe. It is not only illegal to discipline an employee for following doctor’s orders, it puts everyone at risk.”

OSHA’s investigation upheld the allegation that the railroad company disciplined the conductor in retaliation for taking leave in line with a treatment plan ordered by a doctor. The employee was ill and saw a doctor on Dec. 16, 2013. Following the appointment, the conductor immediately notified a supervisor that the doctor had ordered him to stay out of work for the remainder of the day. The note also covered illness suffered during the weekend, which was part of the employee’s scheduled time off. The employee was subsequently disciplined for violating the company’s attendance policy.

BNSF Railway has been ordered to pay $2,000 in compensatory and $10,000 in punitive damages, as well as reasonable attorney’s fees. Any of the parties in this case can file an appeal with the department’s Office of Administrative Law Judges.

OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime and securities laws.

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

BNSF ordered to pay $225k to terminated worker

OSHA logo; OSHAKANSAS CITY, Kan. – Burlington Northern Santa Fe LLC wrongfully terminated an employee in Kansas City after he reported an injury to his left shoulder, according to the U.S. Department of Labor’s Occupational Safety and Health Administration. The company has been found in violation of the Federal Railroad Safety Act*, and OSHA ordered the company to pay the apprentice electrician $225,385 in back wages and damages, remove disciplinary information from the employee’s personnel record and provide whistleblower rights information to all its employees.

“The resolution of this case will restore the employee’s dignity and ability to support his family,” said Marcia P. Drumm, OSHA’s acting regional administrator in Kansas City, Missouri. “It is illegal to discipline an employee for reporting workplace injuries and illnesses. Whistleblower protections play an important role in keeping workplaces safe because they protect people from choosing between their health and disciplinary action.”

OSHA’s investigation upheld the allegation that the railroad company terminated the employee following an injury that required the employee to be transported to an emergency room and medically restricted from returning to work. The company’s investigation into the injury, reported on Aug. 27, 2013, concluded that the employee had been dishonest on his employment record about former, minor workplace injuries unrelated to the left shoulder. These conclusions led the company to terminate the employee on Nov. 18, 2013.

OSHA found this termination to be retaliation for reporting the injury and in direct violation of the FRSA. BNSF has been ordered to pay $50,000 in compensatory damages, $150,000 in punitive damages, more than $22,305 in back wages and interest and reasonable attorney’s fees.

Any of the parties in this case can file an appeal with the department’s Office of Administrative Law Judges.

OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, railroad, maritime and securities laws.

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

OSHA orders BNSF to pay $526,000 to fired workers

OSHA logo; OSHADENVER – Burlington Northern Santa Fe Railway has been ordered to pay more than $526,000 in back wages and other damages to two workers following an investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration. OSHA found that the company, based in Fort Worth, Texas, was in violation of the whistleblower provisions of the Federal Railroad Safety Act for terminating the employees in 2010 and 2011 for reporting a workplace injury that occurred at the company’s Havre, Mont., terminal.

“An employer cannot retaliate against employees who report an injury,” said Gregory Baxter, OSHA’s regional administrator in Denver. “OSHA recognizes that employers can legitimately have, and apply, policies to require prompt injury reporting; however, that is not what happened here. When employers mask their retaliatory intent through application of a policy or rule, they violate the law.”

The former employees submitted complaints to OSHA alleging violations of the anti-retaliation provisions of the FRSA. Because of these complaints, OSHA conducted an investigation and determined that the reporting of the work-related injury was a factor in each former employee’s termination, which is a direct violation of the FRSA. Burlington Northern has been ordered to pay back wages with interest, compensatory damages and attorney’s fees, while reinstating and expunging the two employees’ work records.

The reporting of an injury, regardless of an employer’s policy or deadline, is a protected activity under well-established law. The railway carrier failed to demonstrate that it would have taken the same unfavorable personnel action in the absence of the behavior protected by the FRSA.

Burlington Northern or the complainant may file objections or request a hearing before the department’s Office of Administrative Law Judges within 30 days of receipt of OSHA’s order. OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes, protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, maritime and securities laws.

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Train conductor wins whistleblower case

OSHA logo; OSHAA Canadian National Railway conductor who says he was wrongfully fired in 2013 could be getting his job back.

“This was a whistleblower lawsuit because I was singled out and wrongfully terminated,” Wayne Laidler said. “I felt it was important to pursue the case to bring to light the way corporate America treats their employees. The company, they shoot first and ask questions later. I wanted to make sure this doesn’t happen to any other employees in the future.”

Read the complete story at The Times Herald.

Grand Trunk, UP ordered to pay whistleblowers

OSHA logo; OSHACHICAGO – The U.S. Department of Labor’s Occupational Safety and Health Administration has found Grand Trunk Western Railway Co. and Union Pacific Railroad Co. in violation of the Federal Railroad Safety Act for suspending and/or disciplining five workers following the reporting of workplace injuries or illnesses.

“When employees are disciplined for reporting workplace injuries, safety concerns or illnesses, worker safety and health are clearly not the company’s priority,” said Nick Walters, OSHA’s regional administrator in Chicago. “More than 60 percent of the FRSA complaints filed with OSHA against railroad companies involve an allegation that a railroad worker has been retaliated against for reporting an on-the-job injury. This is unacceptable and a culture that must be changed.”

The department has ordered the companies to pay back wages, along with interest, punitive and compensatory damages, and attorney’s fees. The companies will also be required to remove disciplinary information from the employees’ personnel records and must provide whistleblower rights information to workers.

OSHA has ordered Grand Trunk Western Railway Co., a subsidiary of the Canadian National Railway, to pay four workers a total of $85,580.

A building and bridge carpenter will receive $29,671 in lost wages, less employment taxes, $2,119 in lost vacation pay and $10,000 in punitive and compensatory damages. OSHA’s investigation upheld his allegations that he was suspended for 20 days after reporting a workplace injury that occurred in South Bend, Ind., in December 2011.

A conductor will receive $29,671 in lost wages, less employment taxes, $2,119 in lost vacation pay and $10,000 in punitive and compensatory damages. He received a 60-day suspension from work after reporting a workplace injury that occurred in Lansing, Mich., in November 2011.

Another conductor working in Pontiac, Mich., can expect $1,500 in punitive and compensatory damages and no loss of wages after the employee was issued a 45-day suspension, which has not been served, for taking unauthorized leave in June and July 2012 for ongoing medical treatment. OSHA’s finding upheld that the medical treatment should have been an excused absence. Additionally, a conductor working in Battle Creek, Mich., will receive $500 in punitive damages and one day’s lost wages after he was issued a one-day suspension for reporting a workplace injury in February 2013.

Union Pacific Railroad Co. has been ordered to pay a brakeman $1,289.68 in lost wages, less employment taxes, and $10,000 in punitive and compensatory damages, along with interest and attorney’s fees. OSHA’s investigation upheld the brakeman’s allegation that the railway issued him a one-day suspension and required him to attend remedial simulator training after he was injured by battery acid fumes when investigating a possible fire in the engine room of a train in the Dupo Illinois Yard.

Either party in these cases can file an appeal with the department’s Office of Administrative Law Judges.

OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, maritime and securities laws.

Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

 

OSHA finds Illinois Central violated whistleblower law

OSHA logo; OSHAJACKSON, Miss. – A whistleblower investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration determined that Illinois Central Railroad Co., by conducting a disciplinary hearing, retaliated against a worker for reporting a work-related injury, which is in violation of the whistleblower protection provisions of the Federal Railroad Safety Act.

“Railroad workers have the legal right to report work-related injuries without fear of retaliation,” said Teresa A. Harrison, OSHA’s acting regional administrator in Atlanta. “Railroads that take such retaliatory actions against their workers for exercising basic rights will be held fully accountable and prosecuted.”

In this case, the conductor sustained injuries to the head, neck and back when falling into the bulkhead after the emergency brake was applied unexpectedly on a moving locomotive. The incident and injuries were reported immediately to the trainmaster. The complainant was taken by ambulance to the hospital, admitted and diagnosed with a closed-head injury.

As a result of its findings, OSHA has ordered Illinois Central Railroad Co. to pay $1,000 in punitive damages and to take corrective action, including expunging disciplinary actions and its references to them from various records. OSHA also ordered the railroad to compensate the worker for reasonable attorney’s fees. The railroad must also post and provide FRSA whistleblower rights to its workers.

Illinois Central and the complainant have 30 days from receipt of the findings to file an appeal with the department’s Office of Administrative Law Judges. Under FRSA, employees of a railroad carrier and its contractors and subcontractors are protected against retaliation for reporting on-the-job injuries, certain safety and security violations and for cooperating with investigations by OSHA and other regulatory agencies.

OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various securities, financial services, trucking, airline, nuclear power, pipeline, environmental, rail, maritime, health care, food safety, motor vehicle safety, workplace safety and health regulations and consumer product safety laws.

Under the various whistleblower provisions enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or who provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA’s Whistleblower Protection Programs. More information is available at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Pan Am Railways violated whistleblower rights

BOSTON – The U.S. Department of Labor has ordered Pan Am Railways Inc. to pay $50,000 in compensatory and punitive damages, as well as take corrective action, on behalf of an injured worker. The North Billerica-based commercial railroad adversely charged the worker with lying when he filed a Federal Railroad Safety Act complaint with the department’s Occupational Safety and Health Administration.

The employee, who works in a rail yard in Waterville, Maine, filed an OSHA complaint on Dec. 6, 2011, claiming that the railroad had subjected him to disciplinary action earlier, including a letter of reprimand, for reporting an injury and unsafe working conditions. Shortly after the filing, Pan Am Railways held a second disciplinary hearing on Jan. 4, 2012. It alleged that the worker made false statements to OSHA and the railroad.

OSHA found that the employee engaged in protected activity when filing the complaint, and the railroad took retaliatory action by charging him with lying and by holding the second disciplinary hearing. Such adverse action can intimidate employees from exercising their FRSA rights, even if the charge is later dropped, as it was in this case.

“Employers must understand that their employees have a legal right to file a whistle-blower complaint with OSHA without fear of retaliation,” said Marthe Kent, OSHA’s New England regional administrator. “Responding to an employee’s complaint with threats of disciplinary action is not acceptable and prohibited by law.”

In addition to the compensatory and punitive damages, OSHA has ordered Pan Am Railways Inc. to expunge all files and computerized data systems of disciplinary actions and references to the hearing notice and the January trial. The company must also post a notice to employees about its FRSA whistle-blower rights at all its Maine locations and on its internal website and provide all employees with copies of training materials related to FRSA. Finally, the company must pay reasonable attorney’s fees and compensate the employee for wages and benefits that were lost due to his attending the January disciplinary hearing.

OSHA enforces the whistle-blower provisions of the FRSA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, maritime and securities laws.

Under these laws enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA’s Whistle-blower Protection Program. Detailed employee rights information is available online at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

Judge blasts UP, awards worker $310K

Chastised for its “reprehensible conduct” Union Pacific railroad has been ordered to pay nearly $310,000 to a North Platte man who was fired after a co-worker ran over his foot.

A federal judge has ruled that UP, which is headquartered in Omaha, displayed “blatant disregard” for a federal whistleblower law which allows railroad workers to report injuries.

Read the complete story at NebraskaWatchdog.org.

OSHA slams Norfolk Southern again

OSHA logo; OSHAWASHINGTON – Norfolk Southern Railway Co. has been ordered to pay $1,121,099 to three workers following an investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration, which found that the company violated the whistleblower provisions of the Federal Railroad Safety Act.

Two investigations, conducted by OSHA staff in Chicago and Pittsburgh, found that three employees were wrongfully fired for reporting workplace injuries. In addition to monetary remedies, the company has been ordered to expunge the disciplinary records of the three whistleblowers, post a notice regarding employees’ whistleblower protection rights under the FRSA and train workers on these rights.

Railroad carriers are subject to the FRSA, which protects employees who report violations of any federal law, rule or regulation relating to railroad safety or security, or who engage in other protected activities.

“The Labor Department continues to find serious whistleblower violations at Norfolk Southern, and we will be steadfast in our defense of a worker’s right to a safe job – including his or her right to report injuries,” said acting Secretary of Labor Seth D. Harris. “When workers can’t report safety concerns on the job without fear of retaliation, worker safety and health suffer, which costs working families and businesses alike.” 

One investigation involved a crane operator based in Fort Wayne, Ind., who was removed from service after reporting an eye injury requiring the extraction of a sliver of metal and rust ring from his eye. The injury occurred while he was operating a crane in support of a bridge-building operation in Albany, Ind. The employee was taken out of service and formally terminated on Aug. 24, 2010, after an internal investigation determined he had made false statements concerning the injury.

OSHA’s investigation concluded that the worker would not have been terminated if he had not reported the injury. The agency has ordered the railroad to pay him a total of $437,591.70 in damages, which includes $100,000 in compensatory damages for pain and suffering, $175,000 in punitive damages, and $156,518.94 in back wages and benefits. It also includes compensation of $6,072.76 to the crane operator for penalties incurred when he had to cash in savings bonds prior to their maturity date after being terminated. In addition to damages, the company has been ordered to pay reasonable attorney fees. Further, OSHA has ordered the railroad to reinstate the worker to the proper seniority level, with vacation and sick days that he would otherwise have earned.

OSHA’s second investigation involved a thermite welder and a welder’s helper based in western Pennsylvania. Both employees had worked at the railroad for more than 36 years without incident when they reported injuries sustained as a result of an accident caused by another vehicle that ran a red light and hit a second vehicle, which in turn collided with the company truck in which they were riding.

The employees initially reported minor shoulder area pain plus some stiffness and soreness. Later, when questioned by management, they initially declined medical treatment, but as the pain increased, sought and received treatment at a local hospital. They were then taken out of service pending an investigative hearing and formally terminated. Management concluded that the employees’ reports about their condition were false and conflicting and constituted misconduct.

OSHA’s investigation found that the employees were terminated for reporting injuries to management. The agency has ordered the railroad to pay them $683,508 in damages, including $300,000 in punitive damages; $233,508 in lost wages, benefits and out-of-pocket costs; and $150,000 in compensatory damages for pain and suffering. Interest on back pay due will accrue daily until the employees are paid. In addition to damages, the company has been ordered to pay reasonable attorney fees.

These actions follow several other orders issued by OSHA against Norfolk Southern Railway Co. in the past two years. OSHA’s investigations have found that the company continues to retaliate against employees for reporting work-related injuries, and these actions have effectively created a chilling effect in the railroad industry.

“The Labor Department’s responsibility is to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights,” said Dr. David Michaels, assistant secretary of labor for occupational safety and health. Railroad workers must be able to report work-related injuries without fear of retaliation.”

Norfolk Southern Railway Co. is a major transporter/hauler of coal and other commodities, serving every major container port in the eastern United States with connections to western carriers. Its headquarters are in Norfolk, Va., and it employs more than 30,000 union workers worldwide.

Any party to these cases can file an appeal with the Labor Department’s Office of Administrative Law Judges within 30 days of receipt of the findings.

On July 16, 2012, OSHA and the U.S. Department of Transportation’s Federal Railroad Administration signed a memorandum of agreement to facilitate coordination and cooperation for enforcing the FRSA’s whistleblower provisions. Between August 2007, when OSHA was assigned responsibility for whistleblower complaints under the FRSA, and September 2012, OSHA received more than 1,200 FRSA whistleblower complaints. The number of whistleblower complaints that OSHA currently receives under the FRSA surpasses the number it receives under any of the other 21 whistleblower protection statutes it enforces except for Section 11(c) of the Occupational Safety and Health Act of 1970. More than 60 percent of the FRSA complaints filed with OSHA involve an allegation that a railroad worker has been retaliated against for reporting an on-the-job injury.

OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, worker safety, public transportation agency, maritime and securities laws. Employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government.

Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor to request an investigation by OSHA’s Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available at http://www.whistleblowers.gov.

Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA’s role is to ensure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov.

No defense for violating worker rights

OSHA logo; OSHAEven when railroads return workers to their jobs with full back pay after wrongly terminating them for suffering a workplace injury, significant monetary sanctions may still be imposed by the Department of Labor’s Occupational Safety and Health Administration (OSHA).

Case in point is Norfolk Southern, which was ordered to pay damages in excess of $580,000 in August after violating the Federal Railroad Safety Act’s worker protections against employer harassment, intimidation, discipline and termination in retaliation for reporting workplace injuries or safety concerns.

Railroads have been hit with millions of dollars in sanctions by OSHA over the past year for such behavior, but this case is significant in that the railroad unsuccessfully claimed it should not be sanctioned because after terminating the worker it reinstated him with full back pay.

The unidentified conductor, who suffered a shoulder injury, had been riding the lead car to protect a shove at NS’s Decatur, Ill., yard when several cars behind him derailed due to poorly maintained rail ties.

NS initially claimed the injury was fabricated, and fired the conductor for allegedly making a false injury report. A public law board subsequently ordered the railroad to rehire the conductor with full back pay – 10 months after the workplace injury — and he continues to work for NS. During those 10 months of unemployment, the conductor endured significant financial distressed.

A UTU designated legal counsel, who brought a complaint before OSHA under the whistleblower provisions of the Federal Railroad Safety Act, said NS contended there were no damages to be assessed because the conductor had been put back to work with full pay.

OSHA said the NS arguments were baseless and that the railroad should be punished for violating the conductor’s rights under the Federal Railroad Safety Act.

OSHA then ordered NS to pay the conductor – in addition to the back pay already received – more than $580,000 to cover pain and suffering, punitive damages, loss of employer-paid benefits during the period of unemployment, attorney’s fees and additional lost wages plus interest because OSHA said NS had under-calculated the amount of back pay.

NS also was ordered by OSHA to restore the conductor’s seniority level and vacation and sick days credit, and further credit him with 10 months of service toward his Railroad Retirement pension.

OSHA also ordered NS to provide all workers in its Decatur yard with a copy of an OSHA fact sheet on whistleblower protection, to post in the yard a notice explaining worker rights under the Federal Railroad Safety Act, and to expunge from the conductor’s personnel file all records of his termination and OSHA claim.

“This decision sends a powerful message that terminating an employee for an injury creates financial exposure for the railroad far beyond just having to put him back on the job with back pay,” said UTU International President Mike Futhey. “No longer can a railroad simply calculate the worse-case scenario as having only to provide back pay.”

A rail employee who believes he was improperly harassed, intimidated, disciplined or terminated for reporting a workplace injury or safety concern 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:

https://smart-union.org/td/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

BNSF intimidation alleged to extend to witnesses

The UTU and the Sheet Metal Workers International Association (SMWIA), along with two other rail labor organizations, have filed a complaint with the Department of Labor’s Occupational Safety and Health Administration (OSHA), alleging BNSF has expanded its harassment and intimidation of injured workers to include the targeting of witnesses.

In recent months, OSHA has imposed millions of dollars in sanctions against railroads – including BNSF – for violating federal laws that provide protections for injured rail workers and those reporting safety violations.

The UTU and the SMWIA – now combined as the Sheet Metal, Air, Rail and Transportation Workers (SMART) — along with the International Brotherhood of Electrical Workers and the Brotherhood of Locomotive Engineers and Trainmen — filed a complaint with OSHA July 31 alleging that BNSF officials in Montana are attempting “to interfere with an OSHA investigation into possible violations of the Federal Rail Safety Act” as reported by BNSF employees.

BNSF has written to possible witnesses, asking if they would “object” to having a BNSF representative present during their interview by OSHA investigators.

“Plainly,” states the rail organizations’ complaint, “any employee receiving a communication like this, however innocently couched from the company, will be intimidated by the knowledge that the company is looking over his/her shoulder insofar as providing information to OSHA is concerned.”

The Federal Railroad Safety Act of 2007 extended whistleblower protection to employees retaliated against for reporting injuries, illnesses or safety concerns. 

The complaint filed with OSHA says, “We do not know how BNSF was able to identify these employees as witnesses,” as OSHA previously rejected a BNSF demand that OSHA disclose to BNSF the names of employee witnesses. OSHA told BNSF that “such requests are wholly inappropriate and that OSHA will not comply with them.”

OSHA previously has made clear that “the safety of railroad employees depends on workers’ ability to report injuries, incidents and hazards without fear of retaliation.”

The rail labor organizations urged OSHA to “immediately contact BNSF and sternly rebuke the carrier for this inappropriate conduct. The confidentiality protections in the Federal Railroad Safety Act’s governing regulations and OSHA’s Whistleblower Investigations Manual require nothing less.”

Additionally, the rail organizations cited a June 1 OSHA letter to BNSF stating that “OSHA assumes that BNSF [legal] counsel would be well aware of the conflict of interest that would inevitably arise if BNSF’s attorney were to represent both the corporation and non-managerial employees in a whistleblower case.” The complaint says, “Apparently, BNSF did not see fit to explain that conflict of interest when approaching these employees and offering to be their ‘liaison’ with OSHA.

“No railroad employee [should be] intimidated from filing a complaint initiating an OSHA investigation or from participating in such an investigation, or in any way retaliated against by his/her employer for doing so,” said the rail organizations in their complaint.

Between 2007 and 2012, OSHA received more than 900 whistleblower complaints under the Federal Rail Safety Act.

BNSF has a history of attempting to violate federal laws protecting workers. In March, following a complaint by the UTU and the SMWIA to the Equal Employment Opportunity Commission (EEOC), BNSF rescinded a proposed new rule that would have required its employees to provide highly personal medical information.

The UTU and the SMWIA told the EEOC that the BNSF would be in violation of the Americans with Disabilities Act, the Civil Rights Act and other federal statutes by requiring employees provide the railroad with doctor’s notes, diagnostic test results and hospital discharge summaries that could disclose non-workplace injuries and illnesses. BNSF rescinded the proposed new rule prior to EEOC action.

OSHA reiterates zero tolerance for worker retaliation

OSHA logo; OSHAHere we go again – or should we say, again and again and again and again.

This time it is Canadian National’s Illinois Central Railroad and short line Chicago, Ft. Wayne & Eastern Railroad that have been hit with more than $650,000 in sanctions by the Department of Labor’s Occupational Safety and Health Administration for retaliating against three employees who reported workplace injuries and/or safety concerns.

Sadly, there is basis in fact for the refrain that no industry spends as much to hire and train new employees as do railroads and then works so hard to intimidate, harass and fire them.

The Department of Labor’s Occupational Safety and Health Administration (OSHA) said the more than $650,000 in sanctions is to go toward back wages and damages for two Illinois Central employees at the railroad’s Markham, Ill., yard, and a Chicago, Ft. Wayne and Eastern employee — all of whom were the targets of management retaliation in three separate incidents.

“It is critically important that railroad employees in the Midwest and across the nation know that OSHA intends to defend the rights of workers who report injuries and safety concerns,” said Assistant Secretary of Labor Dr. David Michaels. “We will use the full force of the law to make sure that workers who are retaliated against for reporting health and safety concerns are made whole.”

Michaels has said that before, in the wake of its investigations and sanctions against other railroads – and OSHA continues to deliver on its promise.

The Federal Rail Safety Act of 1970 extended whistleblower protection to employees 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. 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, or for reporting workplace safety concerns.

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.

OSHA, which does not identify whistleblowers, said the first employee, a conductor, was injured in August 2008 when he was knocked unconscious and sustained injuries to his shoulder, back and head while switching railcars in Illinois Central’s Markham, Ill., yard. A knuckle that connects the cars allegedly broke, said OSHA, causing the cars to suddenly jolt and the employee to fall. The railroad held an investigative hearing and consequently terminated the conductor, alleging he had violated safety rules. 

OSHA, however, found that the worker was terminated in reprisal for reporting a work-related injury.

The second employee, a carman, reported an arm/shoulder injury in February 2008. While walking along a platform to inspect railcars in the poorly lit yard, said OSHA, the carman slipped on ice and tried to catch himself, which jolted his left arm and shoulder. The railroad held an investigative hearing and consequently terminated the carman for allegedly violating the company’s injury reporting procedures.

OSHA, however, concluded that the carman had properly reported the injury.

 In the third incident, OSHA said Chicago Fort Wayne & Eastern Railroad – a RailAmerica property — wrongly terminated a conductor in retaliation for his raising concerns about workplace safety while serving as a union officer, and for reporting a trainmaster had instructed him to operate a train in violation of certain Federal Railroad Administration rules in June 2009 near Fort Wayne, Ind.

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:

https://smart-union.org/td/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