BNSF Railway to pay more than $147K in back wages, damages to former employee

DENVER – An investigation by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has found that BNSF Railway Company violated federal law when it terminated a track inspector for insubordination after the employee reported railroad track defects to management.
OSHA has ordered BNSF to pay more than $147,000 in back wages and damages and take other corrective actions. Agency investigators determined the company retaliated against the former employee in violation of the Federal Railroad Safety Act. A Berkshire Hathaway company, BNSF is an international railroad operator headquartered in Fort Worth, Texas. It employs more than 42,000 employees.
“BNSF employees have the right to protect their safety and that of other employees and the public without fear of retaliation by their employer,” said Gregory Baxter, regional OSHA administrator in Denver. “Our investigation and our actions on this worker’s behalf underscores the agency’s commitment to take vigorous action to protect workers’ rights.”
The company and the former employee may file objections or request a hearing, within 30 days of receipt of the agency’s order, before the department’s Office of Administrative Law Judges.
OSHA enforces the whistleblower provisions of the CPSIA and 21 other statutes protecting employees who report violations of various airline, consumer product, environmental, financial reform, food safety, health care reform, nuclear, pipeline, public transportation agency, railroad, maritime and securities laws.
Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor. More information is available online at http://www.whistleblowers.gov/index.html.

Rule will streamline approval of new technologies

WASHINGTON – The U.S. Department of Transportation’s Federal Aviation Administration (FAA) issued a final rule that overhauls the airworthiness standards for small general aviation airplanes. This innovative rule will reduce the time it takes to move safety enhancing technologies for small airplanes into the marketplace and will also reduce costs for the aviation industry.
“Aviation manufacturing is our nation’s top export and general aviation alone contributes approximately $80 billion and 400,000 jobs to our economy,” said U.S. Transportation Secretary Anthony Foxx. “The FAA’s rule replaces prescriptive design requirements with performance-based standards, which will reduce costs and leverage innovation without sacrificing safety.”
FAA’s new Part 23 rule establishes performance-based standards for airplanes that weigh less than 19,000 pounds with 19 or fewer seats and recognizes consensus-based compliance methods for specific designs and technologies. It also adds new certification standards to address general aviation loss of control accidents and in-flight icing conditions.
“The rule is a model of what we can accomplish for American competitiveness when government and industry work together and demonstrates that we can simultaneously enhance safety and reduce burdens on industry,” said FAA Administrator Michael Huerta.
The rule responds to the FAA Modernization and Reform Act of 2012 and the Small Airplane Revitalization Act of 2013, which directed the FAA to streamline the approval of safety advancements for small general aviation aircraft. It also addresses recommendations from the FAA’s 2013 Part 23 Reorganization Aviation Rulemaking Committee, which recommended a more streamlined approval process for safety equipment on small general aviation aircraft.
The new rule also promotes regulatory harmonization among the FAA’s foreign partners, including the European Aviation Safety Agency (EASA), Transport Canada Civil Aviation (TCCA), and Brazil’s Civil Aviation Authority (ANAC).  This harmonization may help minimize costs for airplane and engine manufacturers and operators of affected equipment who seek certification to sell products globally.
The rule affects airplane manufacturers, engine manufacturers, and operators of affected equipment. Click here to learn more from the FAA and industry about the benefits of streamlined certification.
This regulatory change is a leading example of how the FAA is transforming its Aircraft Certification Service into an agile organization that can support aviation industry innovation in the coming years. The Service is focused on using risk-based oversight to refresh the certification strategy, investing in management systems to improve performance, and improving the overall organization.
The rule will be effective eight months from publication in the Federal Register.

INDEPENDENCE, Ohio, January 9 — Two railroad labor unions have jointly filed a lawsuit to overturn a punitive New Jersey law that prohibits New Jersey Transit locomotive engineers from operating trains if their personal motor vehicle driver’s license is suspended.
The unions argue that the state law, signed by Governor Chris Christie in late August of 2016, is preempted by Federal law, specifically, the Rail Safety Improvement Act of 2008, and also by existing Federal Railroad Administration (FRA) certification requirements for locomotive engineers.
The lawsuit was filed jointly on January 9 by the Brotherhood of Locomotive Engineers and Trainmen (BLET) and the Transportation Division of the International Association of Sheet Metal, Air, Rail and Transportation Workers (SMART-TD).
“Current federal law and existing federal rail safety regulations already thoroughly address the treatment of railroad workers who have their personal motor vehicle licenses revoked for operating under the influence of alcohol or other banned substances,” BLET National President Dennis R. Pierce said. “The New Jersey state law is incompatible with the federal law and is a solution in search of a problem. It does nothing to make the railroad safer.”
Federal law provides for safety checks and regular re-checks on locomotive engineers’ personal driving records, and mandates counseling and/or treatment for locomotive engineers who are diagnosed as having an active substance abuse disorder. Workers who refuse or fail to comply with the federal law have their certification suspended. Those who comply with the federal law and the terms of federally-mandated substance abuse program are permitted to continue working in a safe manner.
The state law reads in part: “A person whose driver’s license is suspended or revoked for a violation of R.S.39:4- 50, section 2 of P.L.1981, c.512 (C.39:4-50.4a), or a law of a substantially similar nature in another jurisdiction shall not operate, during the period of suspension or revocation, a locomotive or train provided by the New Jersey Transit Corporation, or any public or private entity under contract to the corporation.”
“Safety of our members and the traveling public is our top priority,” said SMART-TD President John Previsich. “But this matter is heavily regulated in the Federal arena, with science-based programs and systems already established to address such issues. Introducing another layer of bureaucracy, with overly punitive measures that conflict with Federal law, will only serve to disrupt and interfere with the very effective programs already in place.”
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The Brotherhood of Locomotive Engineers and Trainmen represents more than 55,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.
The SMART Transportation Division is headquartered in the Cleveland suburb of North Olmsted, Ohio. It is a broad-based, transportation labor union representing about 125,000 active and retired railroad, bus, mass transit and airline workers in the United States. It is a division of the International Association of Sheet Metal, Air, Rail and Transportation Workers based in Washington, D.C.

The Federal Railroad Administration (FRA) has determined that the minimal annual random drug and alcohol testing rate will remain the same for 2017, as positive test rates have remained below the set threshold.
The testing rates will continue to be 25 percent of covered service employees for drug testing and 10 percent of covered service employees for alcohol testing.
As per a recent final rule, maintenance-of-way (MOW) employees will become subject to the FRA random drug and alcohol testing beginning June 12, 2017. Since the FRA does not yet have data on MOW employees, testing rates for MOW will be set at 50 percent for random drug testing and 25 percent for random alcohol testing for the period starting June 12, 2017, through Dec. 31, 2017.
Click here to read the official notice from the FRA as published in the Federal Register.

FOX5NY reports that 103 people were injured when Long Island Rail Road (LIRR) train 2817 derailed at the Atlantic Terminal in Brooklyn, N.Y. at 8:20 a.m.
The first train car left the track, but no other cars seemed to have derailed. Approximately 600 passengers were on the train at the time of derailment.
Click here to read more from FOX5NY.

Jan. 3 – SMART Transportation Division submitted comments protesting in-cab distractions to the Federal Railroad Administration (FRA). The FRA recently issued a public notice in docket FRA 2016-0002-N-22, allowing for comments to be made on in-cab distractions.

“We have been concerned about the increase of in-cab distractions for some time and have submitted letters and comments to the FRA with our concerns. Two examples are Trip Optimizer and Leader, which are computer-generated devices located in locomotive cabs that are allegedly being used to save fuel,” SMART TD’s National Legislative Director John Risch said in the comments.
“In addition, PTC implementation is causing greater cab distractions than we had hoped it would. Instead of the PTC system simply stopping trains when necessary, they are constantly messaging the engineer to take some minor corrective action and requiring the engineer to interact immediately, which takes the crews’ focus off the track ahead and on the cab electronic device.”

Click here to read the full comments made by SMART TD to the FRA.

The WashingtonPost.com recently reported that the rail industry is lobbying hard to stall or potentially reverse the FRA’s ruling that freight trains be equipped with ECP (electronically controlled pneumatic) brakes by 2021. Despite the growing number of rail crashes and fatalities involving freight cars transporting flammable liquid, and the growing consensus that ECP is vital to freight rail safety, rail lobbyists are angling for support from the Trump administration to roll back this and other safety mandates.
John Risch, SMART TD Legislative Director, who was interviewed for this article, described ECP brakes as “the foundation of safety in the future of the rail industry….ECP brakes can save the day.” Read the complete article here. 
SMART TD Legislative Action Center: Contact your elected representative to voice your support of lifesaving ECP brake systems on all trains by clicking here.
 

Payne

Charlene Payne, a long-time UnitedHealthcare representative for the Railroad Accounts, passed away unexpectedly Saturday, December 17, 2016.
Payne was a dear friend to many at SMART Transportation Division, and her passion and dedication in serving all railroad members was remarkable.
In 1987, she joined one of United Healthcare’s legacy companies, The Travelers Insurance Company, as a member services consultant for Railroad Accounts. She continuously served our railroad members in various roles, most recently as the manager of member relations.
Payne traveled extensively throughout the country meeting with union leaders and their dependents. She shared her expertise by explaining railroad health benefits and eligibility provisions for both active employees and retirees. Over the years, Payne developed close relationships with many railroad members by answering their questions and resolving their problems with care and compassion.
“Charlene was my go-to person whenever our members had problems with their health care issues,” said SMART TD National Legislative Director John Risch. “Beyond her years of dedication to our members, Charlene was a wonderful person and a good friend. We share with her family in the sorrow of her passing.”
Everyone who knew Charlene will miss her knowledge, professionalism, friendliness and unwavering dedication to assist SMART TD members and retirees.
Private funeral services will be held Friday, Dec. 23 in Salt Lake City, Utah. Flowers may be sent to Jenkins-Soffe Funeral Chapels & Cremation Center, 1007 W. South Jordan Parkway, South Jordan, UT 84095.
Donations may be made in Payne’s memory to the Humane Society of Utah, P.O. Box 573659, Murray, UT 84157-3659; or, to the American Red Cross – Donations, 555 East 300 South, Ste. 200, Salt Lake City, UT 84102.

Anyone working in a cold environment may be at risk of cold stress. Some workers may be required to work outdoors in cold environments and for extended periods, for example, snow cleanup crews, sanitation workers, police officers and emergency response and recovery personnel, like firefighters, and emergency medical technicians. Cold stress can be encountered in these types of work environment. The following frequently asked questions will help workers understand what cold stress is, how it may affect their health and safety, and how it can be prevented.

How cold is too cold?

What constitutes extreme cold and its effects can vary across different areas of the country. In regions that are not used to winter weather, near freezing temperatures are considered “extreme cold.” A cold environment forces the body to work harder to maintain its temperature. Whenever temperatures drop below normal and wind speed increases, heat can leave your body more rapidly.
Wind chill is the temperature your body feels when air temperature and wind speed are combined. For example, when the air temperature is 40°F, and the wind speed is 35 mph, the effect on the exposed skin is as if the air temperature was 28°F.
Cold stress occurs by driving down the skin temperature and eventually the internal body temperature (core temperature). This may lead to serious health problems, and may cause tissue damage, and possibly death.

What are the risk factors that contribute to cold stress?

Some of the risk factors that contribute to cold stress are:

  • Wetness/dampness, dressing improperly, and exhaustion
  • Predisposing health conditions such as hypertension, hypothyroidism, and diabetes
  • Poor physical conditioning

How does the body react to cold conditions?

In a cold environment, most of the body’s energy is used to keep the internal core temperature warm. Over time, the body will begin to shift blood flow from the extremities (hands, feet, arms, and legs) and outer skin to the core (chest and abdomen). This shift allows the exposed skin and the extremities to cool rapidly and increases the risk of frostbite and hypothermia. Combine this scenario with exposure to a wet environment, and trench foot may also be a problem.

What are the most common cold induced illnesses/injuries?

  • Hypothermia
  • Frostbite
  • Trench Foot

What is hypothermia?

Hypothermia occurs when body heat is lost faster than it can be replaced and the normal body temperature (98.6°F) drops to less than 95°F.  Hypothermia is most likely at very cold temperatures, but it can occur even at cool temperatures (above 40°F), if a person becomes chilled from rain, sweat, or submersion in cold water.

What are the symptoms of hypothermia?

  • Mild symptoms:
    • An exposed worker is alert.
    • He or she may begin to shiver and stomp the feet in order to generate heat.
  • Moderate to Severe symptoms:
    • As the body temperature continues to fall, symptoms will worsen and shivering will stop.
    • The worker may lose coordination and fumble with items in the hand, become confused and disoriented
    • He or she may be unable to walk or stand, pupils become dilated, pulse and breathing become slowed, and loss of consciousness can occur. A person could die if help is not received immediately.

What can be done for a person suffering from hypothermia?

  • Call 911 immediately in an emergency; otherwise seek medical assistance as soon as possible.
  • Move the person to a warm, dry area.
  • Remove wet clothes and replace with dry clothes, cover the body (including the head and neck) with layers of blankets; and with a vapor barrier (e.g. tarp, garbage bag). Do not cover the face.
  • If medical help is more than 30 minutes away:
    • Give warm sweetened drinks if alert (no alcohol), to help increase the body temperature. Never try to give a drink to an unconscious person.
    • Place warm bottles or hot packs in armpits, sides of chest, and groin. Call 911 for additional rewarming instructions.
  • If a person is not breathing or has no pulse:
    • Call 911 for emergency medical assistance immediately.
    • Treat the worker as per instructions for hypothermia, but be very careful and do not try to give an unconscious person fluids.
    • Check him/her for signs of breathing and for a pulse. Check for 60 seconds.
    • If after 60 seconds the affected worker is not breathing and does not have a pulse, trained workers may start rescue breaths for 3 minutes.
    • Recheck for breathing and pulse, check for 60 seconds.
    • If the worker is still not breathing and has no pulse, continue rescue breathing.
    • Only start chest compressions per the direction of the 911 operator or emergency medical services*
    • Reassess patient’s physical status periodically.

*Chest compression are recommended only if the patient will not receive medical care within 3 hours.

What is frostbite?

Frostbite is an injury to the body that is caused by freezing of the skin and underlying tissues. The lower the temperature, the more quickly frostbite will occur. Frostbite typically affects the extremities, particularly the feet and hands. Amputation may be required in severe cases.

What are the symptoms of frostbite?

  • Reddened skin develops gray/white patches.
  • Numbness in the affected part.
  • Feels firm or hard.
  • Blisters may occur in the affected part, in severe cases.

What can be done for a person suffering from frostbite?

  • Follow the recommendations described above for hypothermia.
  • Do not rub the affected area to warm it because this action can cause more damage.
  • Do not apply snow/water. Do not break blisters.
  • Loosely cover and protect the area from contact.
  • Do not try to rewarm the frostbitten area before getting medical help; for example, do not place in warm water. If a frostbitten area is rewarmed and gets frozen again, more tissue damage will occur. It is safer for the frostbitten area to be rewarmed by medical professionals.
  • Give warm sweetened drinks, if the person is alert. Avoid drinks with alcohol.

What is immersion/trench foot?

Trench Foot or immersion foot is caused by prolonged exposure to wet and cold temperatures. It can occur at temperatures as high as 60°F if the feet are constantly wet. Non-freezing injury occurs because wet feet lose heat 25-times faster than dry feet. To prevent heat loss, the body constricts the blood vessels to shut down circulation in the feet. The skin tissue begins to die because of a lack of oxygen and nutrients and due to the buildup of toxic products.

What are the symptoms of trench foot?

  • Redness of the skin, swelling, numbness, blisters

What can be done for a person suffering from immersion foot?

  • Call 911 immediately in an emergency; otherwise seek medical assistance as soon as possible.
  • Remove the shoes, or boots, and wet socks.
  • Dry the feet.

How can cold stress be prevented?

Although OSHA does not have a specific standard that covers working in cold environments, employers have a responsibility to provide workers with employment and a place of employment which are free from recognized hazards, including cold stress, which are causing or are likely to cause death or serious physical harm to them (Section 5(a)(1) of the Occupational Safety and Health Act of 1970). Employers should, therefore, train workers on the hazards of the job and safety measures to use, such as engineering controls and safe work practices, that will protect workers’ safety and health.
Employers should train workers on how to prevent and recognize cold stress illnesses and injuries and how to apply first aid treatment. Workers should be trained on the appropriate engineering controls, personal protective equipment and work practices to reduce the risk of cold stress.
Employers should provide engineering controls. For example, radiant heaters may be used to warm workers in outdoor security stations. If possible, shield work areas from drafts or wind to reduce wind chill.
Employers should use safe work practices. For example, it is easy to become dehydrated in cold weather. Employers therefore, can provide plenty of warm sweetened liquids to workers.  Avoid alcoholic drinks. If possible, employers can schedule heavy work during the warmer part of the day. Employers can assign workers to tasks in pairs (buddy system), so that they can monitor each other for signs of cold stress. Workers can be allowed to interrupt their work, if they are extremely uncomfortable. Employers should give workers frequent breaks in warm areas. Acclimatize new workers and those returning after time away from work, by gradually increasing their workload, and allowing more frequent breaks in warm areas, as they build up a tolerance for working in the cold environment. Safety measures, such as these, should be incorporated into the relevant health and safety plan for the workplace.
Dressing properly is extremely important to preventing cold stress. The type of fabric worn also makes a difference. Cotton loses its insulation value when it becomes wet. Wool, silk and most synthetics, on the other hand, retain their insulation even when wet. The following are recommendations for working in cold environments:

  • Wear at least three layers of loose fitting clothing. Layering provides better insulation. Do not wear tight fitting clothing.
    • An inner layer of wool, silk or synthetic to keep moisture away from the body.
    • A middle layer of wool or synthetic to provide insulation even when wet.
    • An outer wind and rain protection layer that allows some ventilation to prevent overheating.
  • Wear a hat or hood to help keep your whole body warmer. Hats reduce the amount of body heat that escapes from your head.
  • Use a knit mask to cover the face and mouth (if needed).
  • Use insulated gloves to protect the hands (water resistant if necessary).
  • Wear insulated and waterproof boots (or other footwear).

Safety Tips for Workers

  • Your employer should ensure that you know the symptoms of cold stress.
  • Monitor your physical condition and that of your coworkers.
  • Dress properly for the cold.
  • Stay dry in the cold because moisture or dampness, e.g. from sweating, can increase the rate of heat loss from the body.
  • Keep extra clothing (including underwear) handy in case you get wet and need to change.
  • Drink warm sweetened fluids (no alcohol).
  • Use proper engineering controls, safe work practices, and personal protective equipment (PPE) provided by your employer.

Additional Resources

Cold Stress. National Institute for Occupational Safety and Health (NIOSH).


NOTE:

The Occupational Safety and Health Act (OSH Act) requires employers to comply with hazard-specific safety and health standards. In addition, pursuant to Section 5(a)(1) of the OSH Act, employers must provide their employees with a workplace free from recognized hazards likely to cause death or serious physical harm. Emergency Preparedness Guides do not and cannot enlarge or diminish an employer’s obligations under the OSH Act.
Emergency Preparedness Guides are based on presently available information, as well as current occupational safety and health provisions and standards. The procedures and practices discussed in Emergency Preparedness Guides may need to be modified when additional, relevant information becomes available or when OSH Act standards are promulgated or modified.

Neighbors

In an effort to improve efficiencies and provide enhanced, more cost effective service to our members, the SMART Transportation Division has recently conducted a review of its internal operations. One of the areas identified for restructuring is the process for providing assignments to the SMART TD Human Rights Committee (HRC).

As a result, effective January 1, 2017, the point of contact for the Human Rights Committee will be Tracey Neighbors in the SMART TD legal department in Cleveland. Tracey will intake the initial inquiries, and after consultation with the HRC and legal counsel, will assign the assistance deemed appropriate to the request. This change is intended to provide a more uniform method of intake and handling while preserving the excellent service and professionalism provided by our HRC representatives.

SMART TD established the Human Rights Committee in February, 2000, as part of a broad-based effort to educate SMART TD Members and employers, to promote diversity within our union, and ensure that every voice is heard and respected. Our union shares the same dream as Dr. Martin Luther King Jr. – that men and women should not be judged by race, religion, gender, age or sexual preference – and only by the content of their character.

To contact Tracey Neighbors, please email: tneighbors@smart-union.org.