While sleep scientists have established that going to work fatigued is like going to work drunk, there remains a disconnect among those who manage transportation firms. And people are needlessly dying and being seriously injured as a result.

Transportation Secretary Ray LaHood June 1 criticized his own Federal Motor Carrier Safety Administration for not sooner putting a North Carolina bus operator — allegedly with a history of safety problems, including forcing drivers to work without sufficient rest — out of business sooner.

When the FMCSA finally got around to taking that shutdown action against the bus company May 31, four more lives were lost and 54 more passengers were injured.

The cause of that rollover bus accident near Richmond, Va., May 27 was driver fatigue, according to Virginia State Police, who jailed the bus operator for reckless driving. Seven times since October 2009, the bus company — Sky Express of Charlotte, N.C. — had been cited by the FMCSA for violating federal hours-of-service regulations requiring adequate rest for drivers, according to USA Today.

“I’m extremely disappointed that this carrier was allowed to continue operating unsafely when it should have been placed out of service,” LaHood told USA Today.

Sky Express received an “unsatisfactory” safety rating in April from the FMCSA, according to USA Today, but the FMCSA extended its investigation to, according to an FMCSA spokesperson, “make sure we had an airtight case to shut the company down.”

LaHood told USA Today, “There is no excuse for delay when a bus operator should be put out of service for safety’s sake. On my watch, there will never be another extension granted to a carrier we believe is unsafe.”

The FMCSA said Sky Express had numerous violations for keeping fatigued drivers behind the wheel and failing to ensure its drivers were properly licensed, had proper medical certificates, and could read road signs in English.

The National Transportation Safety Board blamed driver fatigue for a 2008 bus crash in Utah that killed nine, and a 2004 crash in Arkansas that killed 14. A fatal bus crash near New York City March 12, which killed 15, is under investigation. The company operating the bus was cited five times in fewer than two years for allowing fatigued drivers behind the wheel.

UTU members should note that federal law protects aviation, bus and rail workers from retaliation and threats of retaliation when they report that a carrier violated federal hours-of-service regulations.

Whistle-blower complaints may be filed directly with the Occupational Safety and Health Administration (OSHA), or you may contact a UTU designated legal counsel, your general chairperson or your state legislative director for assistance.

To view a more detailed OSHA fact sheet on whistle-blower protection, click on the following link:

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

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.