The SMART Transportation Division (SMART-TD), Brotherhood of Locomotive Engineers and Trainmen (BLET) and the Academy of Rail Labor Attorneys (ARLA) have filed a joint motion and brief urging the United States Supreme Court to prevent railroads from seeking property damages from their employees who are involved in railroad accidents.
The joint amicus curiae brief was filed in the case of Melvin Ammons and Darrin Riley v. Wisconsin Central, Ltd. Following a 2014 derailment, Conductor Ammons and engineer Riley filed suit under the Federal Employers’ Liability Act (FELA), claiming the carrier had failed to provide a safe place to work resulting in injuries to them. In its counter claim, Wisconsin Central blamed Ammons and Riley for causing the accident. The carrier further argued that the crew acted in a negligent manner and sought damages from the employees in excess of $1 million for damage to railroad property.
In their brief, SMART-TD, BLET and ARLA argue that to allow a railroad to recover property damages from employees following an accident is an unlawful device that permits the railroad to evade its own legal liability, and will create a potential catastrophe in the railroad industry because the safety-reinforcing purpose of FELA will be destroyed.
“No tactic by the railroads has more potential for destroying employees’ rights — the exclusive remedial recourse available to railroad employees — under the Federal Employers’ Liability Act (‘FELA’ or the ‘Act’) than allowing a railroad to seek property damages from an employee arising out of an accident,” the group wrote in its amicus brief.
Congress created the FELA in 1908 with the “twin objectives of providing effective relief to railroad workers injured or killed because of their employer’s negligence and giving railroads an economic incentive to improve the safety of this nation’s railroads.” This remedial purpose was underscored by amendments to the Act in 1908 and numerous times thereafter.
The FELA prohibits a railroad from utilizing “any device whatsoever” to exempt itself from liability. SMART-TD, BLET and ARLA contend that seeking property damage from employees in the event of accidents is such a device, and one that would basically exempt railroads from liability.
It was explained to the Supreme Court that “[i]t was not the intention of Congress in enacting FELA, with the inclusion of ‘any device whatsoever,’ that by the device of a claim for property damages, a railroad may avoid financial liability for its negligence, collect damages from an employee or drive an employee to bankruptcy, and whether it be the collection of damages or employee bankruptcy, dissuade other employees from filing FELA claims.”
SMART-TD, BLET and ARLA also argue that allowing employees to be sued for property damages would jeopardize safety in the railroad industry and discourage future safety improvements. In its brief, the group wrote: “Congress’ purpose in enacting FELA was to shift the cost of the ‘human overhead’ of railroading from the injured employees to their railroad employers. Allowing railroads to offset their FELA liability by shifting these losses back to the employees through property damage claims frustrates that Congressional design and jeopardizes the safety of the nation’s rail system.”
A copy of the amicus brief can be found here (PDF).

It is no secret that railroads have tried with all their king’s horsemen and all their king’s men (and women) to send to the dust bin of history the Federal Employers’ Liability Act (FELA), considered the best friend of rail workers in forcing carriers to improve workplace safety.

That 1908 law allows railroaders to recover civil compensatory and punitive damages when railroads fail to maintain a safe workplace, resulting in injury, dismemberment or death.

The latest assault on FELA was a backdoor escape attempt by the Southeastern Pennsylvania Transportation Authority (SEPTA), which sought to declare itself an instrumentality of the State of Pennsylvania, and thus immune, under the U.S. Constitution’s 11th Amendment’s sovereign immunity clause, from such lawsuits.

The Pennsylvania Supreme Court termed the argument bogus, slamming that back door on SEPTA before it could wiggle out. Citing a history of U.S. Supreme Court decisions, Pennsylvania’s highest court ruled that SEPTA, as every other railroad operating in interstate commerce, is and remains subject to FELA.

SEPTA had sought to force its injured workers to file for workers’ compensation under the state’s federal/state workers’ compensation law, rather than bring a lawsuit under provisions of FELA.

Ruled the Pennsylvania Supreme Court:

‘We discern no threat to the dignity of the Commonwealth of Pennsylvania whenever a private individual commences a FELA suit in the courts of this Commonwealth, nor do we find the treasury of the Commonwealth to be threatened by a FELA suit in our courts. Accordingly, we conclude SEPTA is not an arm of the Commonwealth of Pennsylvania, and thus not entitled to claim immunity under the Eleventh Amendment.”

In June 2011, the U.S. Supreme Court declined a railroad attempt to weaken FELA by tightening the standards of proof injured rail workers must demonstrate to win an award under FELA. Attempts by railroads to have Congress scuttle FELA have not progressed beyond a committee hearing stage.

The UTU, Sheet Metal Workers’ International Association and other rail labor organizations joined in bringing the SEPTA case to the Pennsylvania Supreme Court for final determination.

SEPTA commuter rail service was transferred from Conrail to SEPTA, which also provides commuter bus and transit services, in 1983.

To read the court’s decision, click here.

WASHINGTON — In a 5-4 decision, the Supreme Court June 23 declined to tighten the standard of proof injured rail workers must demonstrate to win an award under the Federal Employers’ Liability Act (FELA).

The ruling is a significant victory for injured rail workers.

The FELA — a railroader’s most cherished workplace safety assurance — was passed by Congress more than a century ago to make railroads liable if an employee injury or death results “in whole or in part” from the negligence of any of its officers, agents or employees, or from any defect or insufficiency in equipment or roadbed.

At the time of the FELA’s passage in 1908, more than 4,000 railroaders were killed annually, and some 63,000 more suffered serious injuries each year.

The Supreme Court previously held that the FELA was “designed to put on the railroad industry some of the costs of the legs, arms, eyes, and lives which it consumed in its operation.”

The June 23 Supreme Court decision turned on a crossover vote by conservative Justice Clarence Thomas, who joined liberals Ruth Bader Ginsburg, Sandra Sotomayor, Elena Kagan and Stephen Bryer to rule against CSX and in favor of an injured CSX locomotive engineer.

The engineer had won a monetary award from a federal district court after being injured on the job in 2004 while operating a locomotive that the engineer contended was not suited for switching operations.

CSX twice unsuccessfully appealed the trial court’s decision – the first before the 7th Circuit Court of Appeals and the second appeal before the Supreme Court. CSX contended in both unsuccessful appeals that injured rail workers should meet a more demanding standard of proof as is required in all non-FELA personal injury cases, not, as the trial court instructed the jury, that CSX was responsible for negligence if its negligence “played a part – no matter how small – in bringing about the injury.”

CSX sought a ruling that the employer’s action must be the “primary cause” of the injury. In fact, the “in whole or in part” language comes from the FELA itself, and that legislative language clearly impressed the Supreme Court’s majority in this case.

Writing for the majority, Justice Ginsburg said: “Juries in such cases are properly instructed that a defendant railroad ‘caused or contributed to’ a railroad worker’s injury ‘if [the railroad’s] negligence played a part – no matter how small – in bringing about the injury.’ That, indeed, is the test Congress prescribed for proximate causation in FELA cases.”

Earlier Supreme Court cases upheld the right of unions to advise injured workers to obtain expert legal advice, and the right of unions to designate legal counsel possessing specialized knowledge in railroad operations and the FELA.

A listing of UTU Designated Legal Counsel is provided at by moving the cursor to “About UTU” in the red horizontal bar at the top of the home page and then clicking on “Designated Legal Counsel.” A listing of Designated Legal Counsel also may be obtained from local union officers or your general chairpersons.

If you are injured on the job, the FELA and your UTU Designated Legal Counsel are the best friends you and your family have. These successful trial lawyers are specialists in handling FELA claims, and are fully experienced in dealing with railroad claim agents and railroad lawyers.

And remember: Contributory negligence is not a bar to recovering under the FELA; and the FELA prohibits railroads from retaliating against employees who provide Designated Legal Counsel with factual information on injuries to fellow employees, or who testify in support of injured workers.

Each FELA lawsuit sends to the carriers a message about improving workplace safety that they cannot ignore

To read the June 23 Supreme Court decision, CSX Transportation, Inc. v. Robert McBride, click on the following link:

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 and click on “Designated Legal Counsel” on the left side of the page; or ask your local union officers for the list.