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CHICAGO – The U.S. Department of Labor’s Occupational Safety and Health Administration has found Wisconsin Central Limited railway in violation of the Federal Railroad Safety Act for terminating a conductor following the reporting of a workplace injury that occurred in Manitowoc, Wis.

“The majority of complaints received by OSHA under the Federal Railroad Safety Act involve allegations that a railroad worker has been retaliated against for reporting an on-the-job injury. No worker should feel his job is at risk for reporting an injury or seeking medical attention,” said Nick Walters, OSHA’s regional administrator in Chicago. “When employees are disciplined for reporting workplace injuries, safety concerns or illnesses, worker safety and health are clearly not the company’s priority.”

OSHA has ordered Wisconsin Central, a subsidiary of the Canadian National Railway, to pay the conductor $352,082.75. Included in the amount is $217,082.75 in back wages, applicable employment taxes, $60,000 in compensatory damages and $75,000 in punitive damages. The company also will be required to reinstate the worker, pay reasonable attorney’s fees, remove disciplinary information from the employee’s personnel record and must provide whistleblower rights information to workers.

The conductor was within his 60-day probationary period when the injury occurred. The injury was reported later that day, but not before the end of his shift. On his last day of probation, he was issued a removal-from-service letter that rejected his employment application. Later, the railroad stated that he had violated a company rule by failing to report an injury before his workday ended.

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.

Canadian National has completed the merger of Duluth, Missabe & Iron Range Railway and Duluth, Winnipeg & Pacific Railway into its Wisconsin Central subsidiary.

CN said the merger, approved by the U.S. Surface Transportation Board, will make operations more efficient and customer focused.

In October, in preparation for the merger, UTU represented conductors and brakemen employed by the three CN subsidiaries ratified an implementing agreement consolidating the three properties under a single agreement.

That new agreement provides for four stand-alone general committees under the jurisdiction of one general committee – with General Chairpersons Matt Koski (DW&P, GO 325), Steve Haus (DM&IR, GO 315) and Saint W. J. Laurent (DM&IR, GO 321) merging with General Chairperson Ken Flashberger (WC, GO 987).

“The merger reduces the administration costs associated with four general committees,” said then-UTU International Vice President John Babler, who assisted with negotiations. “The implementing agreement satisfied both New York Dock, Article 1, Section 4, merger conditions and the parties’ Railway Labor Act Section 6 notices.”

Also provided by the agreement are general wage increases, additional personal leave days, up to eight new extra board positions, a reduction in the number of years to qualify for additional weeks of vacation, a new bid rule and prior-rights zones.

Additionally, the new agreement provides terminal protection for DW&P and DM&IR trainmen, preserves no-furlough clauses on each former property, reduces call windows to four hours, guarantees consecutive days off for extra boards and pools, and establishes an order of call when the extra board is exhausted.

“General Chairpersons Flashberger, Koski, Haus and Laurent played key roles in the negotiations, each recognizing the value of a negotiated settlement, and came to the negotiations fully versed on their respective agreements,” Babler said in October. “They came prepared to make the tough choices that would best suit their members’ needs in the short-term and long-term. They also did a remarkable job holding town hall meetings to inform members about the implementing agreement,” Babler said.

Some 430 UTU represented conductors and brakemen employed by Canadian National properties Wisconsin Central; Duluth, Winnipeg & Pacific  (DW&P); and Duluth Missabe and Iron Range (DM&IR) have ratified an implementing agreement — effective Jan. 1 — consolidating the three properties under a single agreement.

The new agreement provides for four stand-alone general committees under the jurisdiction of one general committee – with General Chairpersons Matt Koski (DW&P, GO 325), Steve Haus (DM&IR, GO 315) and Saint W. J. Laurent (DM&IR, GO 321) merging with General Chairperson Ken Flashberger (WC, GO 987).

“The merger reduces the administration costs associated with four general committees,” said UTU International Vice President John Babler, who assisted with negotiations. “The implementing agreement satisfied both New York Dock, Article 1, Section 4, merger conditions and the parties’ Railway Labor Act Section 6 notices.”

Also provided by the agreement are general wage increases, additional personal leave days, up to eight new extra board positions, a reduction in the number of years to qualify for additional weeks of vacation, a new bid rule and prior-rights zones.

Additionally, the new agreement provides terminal protection for DW&P and DM&IR trainmen, preserves no-furlough clauses on each former property, reduces call windows to four hours, guarantees consecutive days off for extra boards and pools, and establishes an order of call when the extra board is exhausted.

“General Chairpersons Flashberger, Koski, Haus and Laurent played key roles in the negotiations, each recognizing the value of a negotiated settlement, and came to the negotiations fully versed on their respective agreements,” Babler said. “They came prepared to make the tough choices that would best suit their members’ needs in the short-term and long-term. The also did a remarkable job holding town hall meetings to inform members about the implementing agreement,” Babler said. 

 

A Wisconsin Central conductor has won a whistle-blower complaint against the carrier – collecting more than $125,000 in compensatory and punitive damages – for unlawful harassment and intimidation as the result of reporting an injury.

This was the third successful whistle-blower complaint filed against a railroad in recent months for violation of a worker’s rights under the Federal Rail Safety Act of 2007.

In the most recent case, the Occupational Safety and Health Administration ordered Wisconsin Central to cease and desist in its practice of automatically issuing notices of investigation for employees who report work injuries.

OSHA also ordered the carrier to pay the conductor lost wages, plus interest; $100,000 in punitive damages for its reckless disregard for the law; and $25,000 in compensatory damages for mental pain and emotional distress due to the humiliation and loss of income from the wrongful suspension. OSHA also ordered Wisconsin Central to provide all employees with a fact sheet advising them of their rights for reporting work-related injuries and illnesses.

According to the conductor’s attorney, the conductor reported an on-the-job injury, as required by railroad rules. The railroad subsequently issued a notice ordering the conductor to attend a formal investigation to ascertain his responsibility for sustaining a personal injury and to determine if the conductor violated any railroad rules.

Although it was determined that the railroad had abandoned previous efforts to treat an ice covered service road that the conductor was required to use in the performance of duties – resulting in the injury – Wisconsin Central found the conductor guilty of violating several rules and issued a 10-day suspension. The railroad alleged that by sustaining an injury, the conductor had violated the railroad’s rules.

Earlier this year, OSHA required Union Pacific to rehire a machinist it had fired following the reporting of a work-related injury, finding UP had improperly retaliated against him.

And in December 2010, OSHA ordered a conductor employed by BNSF to be reinstated after finding BNSF guilty of improper retaliation after the conductor filed an injury report.

The Federal Rail Safety Act of 2007 protects rail workers from retaliation and threats of retaliation when they report injuries, report that a carrier violated safety laws or regulations, or if the employee refuses to work under certain unsafe conditions or refuses to authorize the use of any safety related equipment.

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.

An employer also is 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.

This protection is known as “whistle-blower protection,” and the federal law is enforced by OSHA, as it was against Wisconsin Central, UP and BNSF.

Relief may include reinstatement with the same seniority and benefits, back pay with interest, compensatory damages (including witness and legal fees), and punitive damages as high as $250,000.

A rail employee may file the 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 http://www.utu.org/, 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:

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