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WASHINGTON — The Supreme Court will hear an argument by CSX in 2011 challenging standards for rail workers bringing lawsuits under the Federal Employers’ Liability Act (FELA), reports Bloomberg.

The decision could affect future FELA cases.

The specific case to be heard, reports Bloomberg, involves a CSX engineer who won a $184,250 FELA award for a hand injury suffered while on duty.

Said Bloomberg, “The case centers on the test for determining whether a railroad’s negligence was the cause of an employee’s injury.”

The federal judge hearing that case, reports Bloomberg, told the jury “that the railroad was responsible for negligence if its negligence ‘played a part — no matter how small — in bringing about the injury.'”

CSX, according to Bloomberg, contends that injured rail workers should meet a more demanding standard, as is required in other types of personal-injury lawsuits not covered by the FELA, which applies only to railroads and their workers.

The more demanding standard would require the employer’s action to be the “primary cause” of the injury, known as “proximate cause” in legal jargon.

By Mike Futhey
UTU International President

Brothers and Sisters:

The tentative national agreement with BNSF, CSX, Kansas City Southern, Norfolk Southern, and Union Pacific, which you will vote on soon, was hammered out in an intense two-day bargaining session Jan. 22-23 because the carriers recognized the unity the UTU brought to the negotiating table.

Equally important to the process was our return to interest-based bargaining, whereby both sides choose mutual problem solving to confrontation.

A year had gone by without a single meeting between the two sides, and the situation looked bleak. There were credible signals from the carriers that they intended to cash-in their Bush administration IOUs and move for a presidential emergency board (PEB) by spring. After all, the carriers had established a pattern, holding ratified agreements from most of the other labor organizations.

The carriers reasoned they could count on a carrier-friendly PEB to recommend that the pattern be forced on us. In an election year, with Congress not wanting a rail strike dumped in its lap, the odds were similarly high that lawmakers would quickly pass legislation ordering us back to work under the precise recommendations of the Bush-appointed PEB.

With that unhappy chain of events looming, I met with CSX CEO Michael Ward and made clear that the UTU’s intent was to craft a win-win agreement. We both agreed that a mutually negotiated settlement is preferable to one imposed by a third party – even if the carriers thought the White House is on their side. I asked Mr. Ward to relay our message to the other CEOs and the industry’s labor negotiators.

Our bargaining team reaffirmed our intent to reach a negotiated settlement when we sat down Jan. 22 with the carriers’ chief labor negotiators in Jacksonville, Fla. We were told that they and their CEOs had been reading our leadership messages on the UTU Web site, and sensed a more positive approach from the UTU — and they were prepared to respond in kind.

Before the sun set on the second day, we had that win-win agreement. The carriers acknowledged that prolonged warfare in Congress and before the federal courts was counterproductive.

The carriers agreed to go beyond the pattern. They offered the UTU — and only the UTU — a continuation of a cost-of-living adjustment (COLA) during the period new agreements are being negotiated. The UTU also was the only union to achieve, in national negotiations, an increase in the meal allowance.

Also, the carriers agreed to provide full health-care insurance to new hires and their families after only one month, rather than four; and agreed to arbitrate the dispute over entry rates tied to training; and, for the first time, to make contributions to the yardmasters’ supplemental retiree medical insurance program.

We busted the pattern. But if we fail to ratify this agreement, we could lose it all — and more, because a PEB and Congress could embrace the carriers’ desire for one-person crews and elimination of the Federal Employers’ Liability Act (FELA).

In the days ahead, we will be providing much more information on the tentative agreement, including answers to questions posed by general chairpersons. Please, stay informed. This agreement deserves ratification. The alternative is unthinkable.

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.

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.

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 SMART Transportation Division which in any way relates to the DLC program.

All DLC shall agree as a condition of becoming or remaining SMART TD 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 SMART TD 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 SMART TD 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 SMART Transportation Division.

Any DLC solicited for a payment or contribution by any SMART TD 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 SMART TD 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 SMART TD, 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 SMART TD 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 SMART TD Coordinator of Designated Legal Counsel. The employment of or provision of office space to full-time SMART TD elected officers, staff or employees is prohibited.

Under no circumstances is a referral fee to be paid to any SMART TD member or union officer who recommends the DLC to an injured employee. If such a fee is requested, the International President and SMART TD 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 SMART TD 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 SMART Transportation 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 SMART Transportation Division 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 TD President, and in the case of SMART TD members, referral to the International President for corrective action consistent with the SMART Constitution.

SMART Transportation Division 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 SMART TD Coordinator of Designated Legal Counsel.