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A UTU member will be collecting more than $95,000 in penalties assessed against BNSF by the Occupational Safety & Health Administration (OSHA) for the railroad’s violation of the Federal Rail Safety Act.

OSHA found BNSF guilty of intimidating and harassing an injured UTU member who reported his workplace injury to the Federal Railroad Administration. The monetary award covers back wages, compensatory damages, attorney’s fees and punitive damages.

This is the first major award by OSHA after UTU International President Mike Futhey requested UTU designated legal counsel ramp up efforts to assist members whose whistle-blower rights under the Federal Rail Safety Act have been violated.

BNSF employee Ronald Helm (Local 1532, Kansas City), targeted for discipline after being injured on the job, didn’t feel so helpless against his powerful employer after his local chairperson, Joe Lopez, attended a seminar on whistle-blower rights given by a designated legal counsel. Helm is a 33-year veteran of the former Santa Fe and BNSF.

With assistance from General Chairperson Jim Huston (BNSF, GO 009), and committee Secretary Rex Pence, a case was developed and presented to OSHA, which administers the law as it applies to whistleblower protection.

Helm had been assessed a 30-day record suspension with no time lost, given one-year probation, and assessed 40 points against his personal performance index after reporting his personal injury to the FRA. Had the injury not been FRA reportable, he would have been assessed only five points.

BNSF said the penalty against Helm was for using a pin lifter, instead of a hickory stick, to adjust mismatched couplers in BNSF’s Argentine, Kan., yard. Evidence showed BNSF had not made the hickory stick available until after Helm’s injury.

Moreover, according to OSHA, BNSF’s discipline was arbitrary because BNSF typically does not discipline workers for using different tools if work is performed in a timely manner.

“An employer does not have the right to retaliate against employees who report work-related injuries,” said OSHA. And BNSF’s points system serves to discourage the proper reporting of workplace injuries, said OSHA.

In addition to the monetary penalty, BNSF was ordered to inform each of its employees in its Kansas Division — and in writing — of their whistle-blower rights under the Federal Rail Safety Act of 2007.

“This case and the work of our designated legal counsel shows that the federal law protecting whistle-blowers has teeth and that it can and will be used to stop the intimidation and harassment faced by our members,” Futhey said.

“UTU members who think they have been retaliated against for reporting workplace injuries should discuss the matter with a UTU designated legal counsel, their general chairperson or state legislative director,” said Futhey.

Complaints must be filed with OSHA within 180 days of the alleged employer retaliation.

Click on the following link for a listing of UTU designated legal counsel:

https://www.smart-union.org/td/designated-legal-counsel//

Click on the following link for a detailed OSHA fact sheet:

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

WASHINGTON – An official of the Occupational Safety and Health Administration (OSHA) this week affirmed the agency’s support for whistle-blower protection.

OSHA enforces provisions of 19 laws protecting employees who report violations of various securities, trucking, airline, nuclear, pipeline, environmental, railroad, public transportation, workplace safety and health, consumer product safety, health care reform, and financial reform laws.

“OSHA’s Whistle-blower Protection Program exists because of a decades-old belief held by Congress, stakeholders, employers and society that whistle-blowers play an essential role in protecting workers and the public, said Dr. David Michaels, OSHA’s assistant secretary of labor.

“Whistle-blowers can make the difference between lawful workplaces and places where workers fear for their livelihoods and even their lives if they raise concerns,” Michaels said.

“With our available resources,” he said, “OSHA is working hard to ensure that whistle-blowers are protected from retaliation. We are in the process of a top-to-bottom review of OSHA’s whistle-blower protection program.”

The comments came following a General Accountability Office audit of the OSHA Whistle-blower Protection Program. “OSHA has already begun taking action on items recommended in the GAO report, such as requiring all investigators and their supervisors to complete mandatory investigator training over the next 18 months, setting strategic goals and performance measures for the whistleblower program, and providing new equipment to field staff,” Michaels said.

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 assure these conditions for America’s working men and women by setting and enforcing standards, and providing training, education and assistance.

Detailed information on employee whistle-blower rights, including fact sheets, is available at www.whistleblowers.gov

By Assistant President Arty Martin

Viewers of the cable television sitcom, Fawlty Towers, may recall an episode in which Basil Fawlty (played by John Cleese) beat his broken-down car with a branch, blaming the car rather than his own failure to maintain it.

Being too negatively focused on a problem rather than identifying and pursuing a workable solution can be a costly error in the workplace.

Remote control operations come to mind. For sure, remote control cost jobs, but beating up on new technology has never preserved jobs in the long run, and diverts our productive energies from crafting a positive strategy to ensure new technology is safe and that those using the new technology are properly trained and compensated for their improved skills.

An example of positive problem solving through the identification of workable solutions is a recent joint petition filed with the FRA by the UTU and the BLET seeking a safety rule requiring a qualified conductor be aboard every freight train.

Indeed, a priority of the UTU International is finding positive solutions to problems affecting our membership.

Consider other recent initiatives:

In the face of an unacceptable increase in rail-employee fatalities and career-ending injuries, a rail safety task force was appointed by UTU International President Mike Futhey to gather information and make recommendations regarding employee safety. The task force has an interactive Web page accessible from the UTU home page at www.utu.org.

Within the next couple of weeks, the task force will post a member survey on its Web page, seeking information on workplace distractions, carrier-enforced work practices, instances of worker fatigue, and other workplace safety problems.

The Web page also encourages direct communication with task force members, intended to help the task force gather detailed facts required to back-up recommendations the task force will be making to the carriers for remedial action; and, if necessary, by the UTU International to the FRA and Congress.

Moreover, the International leadership is meeting with other rail labor organizations to build a coalition aimed at convincing the carriers that intimidation, harassment and excessive discipline are jeopardizing the ability of workers to do their jobs efficiently and safely.

President Futhey’s column in the September issue of the UTU News, which will reach your mailboxes within the next 10 days, speaks more to that problem; and the column will be posted at www.utu.org next week.

President Futhey encourages members to contact local chairpersons and general chairpersons to alert them to workplace situations where members unnecessarily are forced to look over their shoulder rather than focus on doing their jobs efficiently and safely. State legislative directors should always be made aware of safety problems on the job.

A listing of contact information for International vice presidents and other senior International officers also will accompany that column. This is an open-door administration and we want to hear from you.

While the Rail Safety Improvement Act of 2008 does not contain all we wanted — and contains some provisions we didn’t want — we are working with other rail labor organizations toward a fine-tuning of that law. The law did give us conductor certification, and President Futhey has appointed a UTU team to an FRA Rail Safety Advisory Committee (RSAC) to work toward a carrier/labor/FRA consensus on certifying conductors.

Also, in a joint submission aimed at improving safety and the security of member paychecks, the UTU and the BLET have asked the FRA to clarify and simplify its interim policies and interpretations relating to hours of service provisions of the Rail Safety Improvement Act.

Additionally, in conjunction with the BLET, we are working closely with the FRA to ensure that the FRA’s rules on Positive Train Control — whose implementation is mandated no later than 2015 by the Rail Safety Improvement Act — include provisions to ensure the technology is properly tested and monitored, that operating crews are properly trained, and that employee and public safety be the number one priority over all other considerations.

With regard to our airline members, the UTU is working with others in transportation labor to gain legislation eliminating flight-crew fatigue and to bring flight attendants under protections of OSHA.

As for our bus members, the UTU is working through the AFL-CIO for changes in commercial driver’s license regulations that subject bus operators to loss of their jobs if they receive citations while operating personal automobiles. We also are working to gain legislation requiring improved crash-resistant buses, uniform driver-training standards, and required training in dealing with abusive and threatening passengers.

Finally, member suggestions as to what the UTU should propose in Railway Labor Act Section 6 notices (the first step in revising the national rail contract), have been catalogued and the District 1 Association of General Chairpersons will soon be finalizing them prior to our Section 6 notices being served on the carriers in November.

To keep current on what the UTU is doing on your behalf to protect jobs and improve wages, benefits and working conditions, sign up for e-mail alerts by clicking on the link below:

https://webapps.utu.org/WebSiteForms/EmailAlert.aspx

The value of detailed documentation can never be overstated.

UTU members have been empowered to address the issue of harassment and intimidation though federal whistleblower protection that is written into law.

This protection already has had a positive impact. Recently, an investigation by the Occupational Safety and Health Administration (OSHA), which followed information from a whistleblower, resulted in $300,000 in multiple punitive damage awards against commuter railroad Metro North

The UTU Safety Task Force has received many complaints about harassment and intimidation.

Some of the carriers have made a relentless practice of harassment for the sake of productivity, with little or no regard for our members’ safety. With your detailed documentation, this will change.

In addition to reporting all dangerous safety conditions to your respective carriers, your report should be made to your local legislative representative and state legislative director, with copies to your local chairperson and other local officers.

Your report should contain pertinent information, such as:

  1. Date and time with job/train ID
  2. Location
  3. Name of carrier official who instructed you to make an unsafe act or safety violation.
  4. Statement of the alleged safety violation, including threats, harassment, intimidation or unsafe events directly attributing to this situation.

By your paper trail of documentation, your LRs and SLDs can take the appropriate actions.

The UTU Safety Task Force suggests you familiarize yourself with these procedures in order that we all share a safer workplace.

A summary of whistleblower protection under the law follows:

The Law and its Protections:

(a) In General. — A railroad carrier engaged in interstate or foreign commerce, a contractor or a subcontractor of such a railroad carrier, or an officer or employee of such a railroad carrier, may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part, to the employee’s lawful, good faith act done, or perceived by the employer to have been done or about to be done—

(1) to provide information, directly cause information to be provided, or otherwise directly assist in any investigation regarding any conduct which the employee reasonably believes constitutes a violation of any Federal law, rule, or regulation relating to railroad safety or security, or gross fraud, waste, or abuse of Federal grants or other public funds intended to be used for railroad safety or security, if the information or assistance is provided to or an investigation stemming from the provided information is conducted by—

 (A) a Federal, State, or local regulatory or law enforcement agency (including an office of the Inspector General under the Inspector General Act of 1978.

 (B) any Member of Congress, any committee of Congress, or the Government Accountability Office; or

 (C) a person with supervisory authority over the employee or such other person who has the authority to investigate, discover, or terminate the misconduct;

 (2) to refuse to violate or assist in the violation of any Federal law, rule, or regulation relating to railroad safety or security;

 (3) to file a complaint, or directly cause to be brought a proceeding related to the enforcement of this part or, as applicable to railroad safety or security, chapter 51 or 57 of this title, or to testify in that proceeding;

 (4) to notify, or attempt to notify, the railroad carrier or the Secretary of Transportation of a work-related personal injury or work-related illness of an employee;

 (5) to cooperate with a safety or security investigation by the Secretary of Transportation, the Secretary of Homeland Security, or the National Transportation Safety Board;

 (6) to furnish information to the Secretary of Transportation, the Secretary of Homeland Security, the National Transportation Safety Board, or any Federal, State, or local regulatory or law enforcement agency as to the facts relating to any accident or incident resulting in injury or death to an individual or damage to property occurring in connection with railroad transportation;

 (7) to accurately report hours on duty.

 In addition,

(8) A railroad or person shall not deny, delay, or interfere with the medical or first aid treatment of an injured employee. If transportation to a hospital is requested by an injured employee, the railroad shall promptly arrange to have the injured employee transported to the nearest medically appropriate hospital. A railroad shall not discipline, or threaten discipline to an employee seeking medical treatment, or for following orders or a treatment plan of a treating physician. Provided, however, it will not be a violation if the refusal by the railroad is pursuant to the FRA’s medical standards regs. or a carrier’s medical standards for fitness for duty.

Remedies:

(1) In general.— An employee prevailing in any action shall be entitled to all relief necessary to make the employee whole.

(2) Damages.— Relief shall include—

(A) reinstatement with the same seniority status that the employee would have had, but for the discrimination;

(B) any backpay, with interest; and

(C) compensatory damages, including compensation for any special damages sustained as a result of the discrimination, including litigation costs, expert witness fees, and reasonable attorney fees.

(3) Possible relief.— Relief in any action may include punitive damages in an amount not to exceed $250,000.

(e) Election of Remedies.— An employee may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier.

 (The UTU Safety Task Force was created by UTU International President Mike Futhey in response to a sharp spike in railroad on-duty employee fatalities.

(Members of the task force are: Arizona Assistant State Legislative Director Greg Hynes, chairman; Arkansas State Legislative Director Steve Evans; Michigan State Legislative Director Jerry Gibson; and Arizona State Legislative Director Scott Olson.)

View the Safety Task Force interactive Web page at:

http://utu.org/utu-rail-safety-task-force/

August 17, 2009

By UTU Assistant President Arty Martin

Fatigue is a serious problem for pilots and flight attendants. Flight attendants additionally are without protections afforded under the 1970 Occupational Safety and Health Act (OSHA).

The UTU, working with the Transportation Trades Department of the AFL-CIO, as well as the Air Line Pilots Association and the Association of Flight Attendants, is focused on both of these issues on behalf of UTU’s airline industry members.

Current Federal Aviation Administration (FAA) regulations permit lengthy and irregular shifts across multiple time zones. There are numerous instances of flight crews being given only eight hours of rest between shifts, and that includes travel to and from the airline terminal, which frequently permits as few as three to five hours of actual sleep.

As we know too well in the railroad industry — and as has been documented by sleep scientists at major universities — going to work fatigued is like going to work drunk. The difference is that an intoxicated person sobers up; but a fatigued transportation worker only becomes more fatigued.

Federal regulation and enforcement is needed, and additional help is on the way with the recent confirmation by the Senate of former airline pilot Randy Babbitt to be the federal aviation administrator. Prior to his nomination by President Obama to head the FAA, Babbitt served on an independent review team examining and making recommendations to improve the FAA’s aviation safety system.

In fact, Babbitt said in June that the FAA will propose, by fall, new limits on how many hours airline pilots can fly. Babbitt said the new limits will take into consideration that pilots flying routes with numerous takeoffs and landings experience more fatigue than pilots on longer flights with only one takeoff and landing.

Current FAA regulations permit pilots to be on duty up to 16 hours, with eight hours of scheduled flight time, and airlines can order them back to work with as few as eight hours between shifts.

The February crash of a commuter plane near Buffalo, N.Y., which killed 50 people, gives greater urgency to revising aviation hours-of-service rules because it was determined that the co-pilot of the doomed flight commuted overnight from near Seattle.

Babbitt said, also, that he wants airlines — including commuter carriers — to participate in two safety programs studying airline safety.

As for flight attendants, they are currently under FAA safety-rules jurisdiction rather than OSHA rules. Yet, the FAA has never prescribed or enforced safety and health standards or regulations, which are the core of OSHA regulations. The administration of George H.W. Bush refused to impose specific workplace protections in the aircraft cabin that had been informally agreed to by airlines.

So it is that the UTU, the AFL-CIO Transportation Trades Department, the Air Line Pilots Association and the Association of Flight Attendants are working jointly in support of legislation requiring the FAA to establish regulations to provide a cabin environment free from hazards that can cause physical harm.

It is expected that Babbitt will move to set such rules, although legislation would ensure they could not be tampered with by future administrations less concerned with workplace safety.