OSHA logo; OSHAIn ice hockey, the scoring by one player of three goals is called a “hat trick.” In baseball, a player striking out four times in a single game is said to have earned a “golden sombrero.”

Norfolk Southern’s feat is to have earned from OSHA a still unnamed fifth significant sanction in recent months for violating – through harassment, intimidation and unwarranted discipline — the rights of injured employees or those attempting to report a safety concern.

While other railroads have earned one or more recent rebukes from OSHA, Norfolk Southern seems headed for a gold medal in this dubious category of employee harassment, intimidation and unwarranted discipline.

OSHA says the reason has been the railroad’s single-minded, if not narrow minded, determination to be declared the nation’s safest railroad – albeit through harassing, intimidating and disciplining workers not to report their workplace injuries.

Norfolk Southern denies the allegations and is appealing each of the OSHA actions.

BNSF, which also has been sanctioned numerous times by OSHA for similar violations of the rights of injured and safety-conscious employees, recently took the art of intimidation to a new level by attempting to coerce employee witnesses to its alleged violations to allow a BNSF attorney in the room when questioned by OSHA investigators. BNSF denies its intent is to intimidate those employees from being candid with OSHA investigators.

“Railroad workers throughout this country have the right to report an injury without fear of retaliation,” said Cindy Coe, OSHA’s regional administrator in Atlanta. OSHA, she said, “will continue to protect” rail workers from employer retaliation, and employers found in violation “will be held accountable.”

As reported by the Norfolk, Va., Virginian Pilot newspaper, four of the five OSHA-determined violations were announced within months of Norfolk Southern’s winning the railroad industry’s E.H. Harriman gold medal safety award in May for the 23rd year in a row.

“The Harriman program, in place for nearly 100 years, quietly ended with this year’s awards, though news releases about this year’s winners from Norfolk Southern and the Association of American Railroads did not explicitly state that the program was over,” reported the newspaper. “The industry group did not say why it ended.”

A Norfolk Southern spokesperson told the newspaper there was “no connection” between its OSHA-determined violation of employee rights under federal law and the ending of the Harriman program.

The UTU and other rail labor organizations have long held that the Harriman awards program encouraged carrier supervisors to harass, intimidate and discipline injured and safety-conscious employees in an effort to earn cash bonuses and promotions in conjunction with their railroad’s winning of a Harriman gold, silver or bronze medal.

The award is named after the late railroad baron Edward Henry Harriman who, during the late 19th and early 20th century, held financial control of Union Pacific, Southern Pacific, Illinois Central, Central of Georgia, plus other smaller railroads, a steamship line and Wells Fargo Express.

The UTU documented in 2007 that a Norfolk Southern supervisor posed as a clergyman to enter the hospital room of an injured worker. Once there, according to obtained evidence, he tried to convince the attending physician not to prescribe a particular medication, which would have required reporting the injury to the Federal Railroad Administration and putting the winning of a Harriman gold medal at risk.

The Federal Railroad Safety Act of 1970 extended whistleblower protection to employees who are retaliated against for reporting an injury or illness requiring medical attention. The Rail Safety Improvement Act of 2008 added additional requirements ensuring injured workers receive prompt medical attention.

Their purpose is to protect rail workers from retaliation and threats of retaliation when they report injuries or illness, 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 safety related equipment.

An employer is outright 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.

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.

UTU designated legal counsel have pledged to investigate and assist UTU members in bringing complaints under these laws.

A rail employee may file a whistle-blower 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:

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

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:

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

 

The UTU and the Sheet Metal Workers International Association (SMWIA), along with two other rail labor organizations, have filed a complaint with the Department of Labor’s Occupational Safety and Health Administration (OSHA), alleging BNSF has expanded its harassment and intimidation of injured workers to include the targeting of witnesses.

In recent months, OSHA has imposed millions of dollars in sanctions against railroads – including BNSF – for violating federal laws that provide protections for injured rail workers and those reporting safety violations.

The UTU and the SMWIA – now combined as the Sheet Metal, Air, Rail and Transportation Workers (SMART) — along with the International Brotherhood of Electrical Workers and the Brotherhood of Locomotive Engineers and Trainmen — filed a complaint with OSHA July 31 alleging that BNSF officials in Montana are attempting “to interfere with an OSHA investigation into possible violations of the Federal Rail Safety Act” as reported by BNSF employees.

BNSF has written to possible witnesses, asking if they would “object” to having a BNSF representative present during their interview by OSHA investigators.

“Plainly,” states the rail organizations’ complaint, “any employee receiving a communication like this, however innocently couched from the company, will be intimidated by the knowledge that the company is looking over his/her shoulder insofar as providing information to OSHA is concerned.”

The Federal Railroad Safety Act of 2007 extended whistleblower protection to employees retaliated against for reporting injuries, illnesses or safety concerns. 

The complaint filed with OSHA says, “We do not know how BNSF was able to identify these employees as witnesses,” as OSHA previously rejected a BNSF demand that OSHA disclose to BNSF the names of employee witnesses. OSHA told BNSF that “such requests are wholly inappropriate and that OSHA will not comply with them.”

OSHA previously has made clear that “the safety of railroad employees depends on workers’ ability to report injuries, incidents and hazards without fear of retaliation.”

The rail labor organizations urged OSHA to “immediately contact BNSF and sternly rebuke the carrier for this inappropriate conduct. The confidentiality protections in the Federal Railroad Safety Act’s governing regulations and OSHA’s Whistleblower Investigations Manual require nothing less.”

Additionally, the rail organizations cited a June 1 OSHA letter to BNSF stating that “OSHA assumes that BNSF [legal] counsel would be well aware of the conflict of interest that would inevitably arise if BNSF’s attorney were to represent both the corporation and non-managerial employees in a whistleblower case.” The complaint says, “Apparently, BNSF did not see fit to explain that conflict of interest when approaching these employees and offering to be their ‘liaison’ with OSHA.

“No railroad employee [should be] intimidated from filing a complaint initiating an OSHA investigation or from participating in such an investigation, or in any way retaliated against by his/her employer for doing so,” said the rail organizations in their complaint.

Between 2007 and 2012, OSHA received more than 900 whistleblower complaints under the Federal Rail Safety Act.

BNSF has a history of attempting to violate federal laws protecting workers. In March, following a complaint by the UTU and the SMWIA to the Equal Employment Opportunity Commission (EEOC), BNSF rescinded a proposed new rule that would have required its employees to provide highly personal medical information.

The UTU and the SMWIA told the EEOC that the BNSF would be in violation of the Americans with Disabilities Act, the Civil Rights Act and other federal statutes by requiring employees provide the railroad with doctor’s notes, diagnostic test results and hospital discharge summaries that could disclose non-workplace injuries and illnesses. BNSF rescinded the proposed new rule prior to EEOC action.

OSHA logo; OSHAFollowing almost 1,000 complaints from rail workers that they were improperly disciplined for reporting injuries or unsafe working conditions, the Federal Railroad Administration and the Occupational Safety and Health Administration have forged an alliance to bring more pressure on railroads to stop the pattern of harassment and intimidation.

“The safety of railroad employees depends on workers’ ability to report injuries, incidents and hazards without fear of retaliation,” said OSHA.

Between 2007 and 2012, OSHA received more than 900 whistleblower complaints under the Federal Rail Safety Act, and almost 63 percent involved an allegation that a worker was retaliated against for reporting an on-the-job injury.

The Federal Rail Safety Act of 1970 extended whistleblower protection to employees retaliated against for reporting an injury or illness requiring medical attention. The Rail Safety Improvement Act of 2008 added additional requirements ensuring injured workers receive prompt medical attention. An employer is outright 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.

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.

Under the coordination agreement, the FRA will refer railroad employees who complain of alleged retaliation to OSHA. OSHA will provide the FRA with copies of the complaints it receives under the Federal Rail Safety Act’s whistleblower provision, as well as any findings and preliminary orders that OSHA issues. The agencies will jointly develop training to assist FRA enforcement staff in recognizing complaints of retaliation, and to assist OSHA enforcement staff in recognizing potential violations of railroad safety regulations revealed during whistleblower investigations.

“This memorandum is a watershed moment for both railroads and labor alike,” said FRA Administrator Joe Szabo. “Securing a process that protects employees who report safety violations is critical to maintaining safety standards in the workplace.”

In recent months OSHA has ordered railroads to pay millions of dollars in sanctions for violating federal whistleblower protections. “Firing workers for reporting an injury is not only illegal, it also endangers all workers,” OSHA said. In imposing sanctions against Norfolk Southern in 2011, OSHA said the railroad’s culture of employee harassment and intimidation permitted the railroad to “maintain the appearance of an exemplary safety record.”

UTU designated legal counsel have pledged to investigate and assist UTU members in bringing complaints under these laws.

A rail employee may file a whistle-blower 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:

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

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:

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

It is reasonable to wonder just how many millions of dollars in sanctions must be assessed against railroads by the federal government before they learn the lesson that employees are not the equivalent of number 2 pencils to be chewed on at will and discarded when convenient.

In the most recent comeuppance applied to Norfolk Southern by the U.S. Department of Labor’s Occupational Safety and Health Administration, sanctions totaling more than $802,000 were imposed as punishment for violating the whistleblower protection provisions of the new section 20109 added by Congress in 2007 to the Railroad Safety Act. NS was found to have harassed, intimidated and ultimately fired three employees who reported and sought medical attention for on-duty injuries.

NS also was ordered by OSHA to expunge the disciplinary records of the three whistleblowers, post workplace notices regarding railroad employees’ whistleblower protection rights and provide training to its employees about these rights.

The latest OSHA fines — and there have been several in the past– against NS followed OSHA investigations in Greenville, S.C.; Louisville, Ky., and Harrisburg, Pa., each showing, according to OSHA,  “reasonable cause to believe that the employees’ reporting of their workplace injuries led to internal investigations and, ultimately, to dismissals from the company.”

OSHA does not release the names of whistleblowers. The Harrisburg employee was reportedly a conductor; the Louisville whistleblower an engineer and the Greenville whistleblower a maintenance-of-way employee.

“Firing workers for reporting an injury is not only illegal, it also endangers all workers. When workers are discouraged from reporting injuries, no investigation into the cause of an injury can occur,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “To prevent more injuries, railroad workers must be able to report an injury without fear of retaliation.”

In 2011, OSHA, in hitting NS with sanctions of more than $122,000, said NS’ culture of employee harassment and intimidation permitted the railroad to “maintain the appearance of an exemplary safety record and continue its 22-consecutive-year record as recipient of the E.H.Harriman Gold Medal Rail Safety Award.”

In the latest assessment of sanctions against NS, OSHA reported:

* A maintenance-of-way employee was charged with improper performance of duties after reporting an injury as a result of being hit by a NS highway vehicle. OSHA found he had been singled out and treated with bias because of reporting the injury.

* An engineer was charged with falsifying an injury and terminated after reporting he tripped and fell in a locomotive restroom. OSHA found the investigative hearing was flawed and orchestrated to intentionally support the decision to terminate the employee.

* A conductor was charged with making false and conflicting statements and terminated after reporting a head injury sustained when he blacked out and fell down steps while returning from the locomotive lavatory. OSHA said that the day before the injury, the employee had been lauded for excellent performance, highlighted by no lost work time due to injuries in his 35-year career. OSHA again found that the investigative hearing was flawed, and there was no evidence the employee intended to misrepresent his injury.

The Federal Railroad Safety Act of 1970 extended whistleblower protection to employees who are retaliated against for reporting an injury or illness requiring medical attention. The Rail Safety Improvement Act of 2008 added additional requirements ensuring injured workers receive prompt medical attention. Prohibitions were imposed by Congress on carrier intimidation and harassment of injured workers in an effort to end a culture that placed the winning of carrier safety awards and year-end managerial bonuses as a higher priority than treatment and prevention of injuries.

The laws were passed by Congress after the UTU documented a railroad culture of harassment and intimidation against injured and ill workers. Their purpose is to protect rail workers from retaliation and threats of retaliation when they report injuries or illness, 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 safety related equipment.

An employer is outright 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.

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.

UTU designated legal counsel have pledged to investigate and assist UTU members in bringing complaints under these laws.

A rail employee may file a whistle-blower 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:

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

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:

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

For too many years, many railroads have tied managerial bonuses to low reportable injury rates among employees, creating a culture of fear through harassment and intimidation – a culture that discourages the reporting by workers of on-duty injuries and allows railroads to claim an industry safety award accompanied by glowing press releases as to its low employee-injury rate.

After collecting file drawers full of verified complaints from members of carrier harassment and intimidation following an on-duty injury, the UTU’s National Legislative Office was successful in shepherding through Congress the Federal Rail Safety Act of 2007.

It purpose is to protect 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.

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.

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.

What was missing was tough enforcement of the law – but no more.

For the seventh time in recent months, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has taken strong action against a railroad for violating the law – and fully protecting the whistle-blowing employees who suffered harassment and intimidation by the offending carrier.

In the latest OSHA action, Union Pacific was ordered in August to pay more than $600,000 in back wages, punitive damages, compensatory damages and legal fees to three employees for improper termination and suspension – all in retaliation for reporting workplace injuries, said OSHA.

Said OSHA: “Union Pacific Railroad has created a climate of fear instead of a climate of safety. The company must take immediate steps to change this unacceptable pattern of retaliation.”

One UP conductor working out of Kansas City, Mo., was terminated after making repeated complaints to the railroad’s hotline about fall and trip hazards, missing roadway signs, other safety issues and reporting that a supervisor had violated safety procedures during a field test, said OSHA. The conductor was also cited for having a tattoo the railroad deemed as creating a hostile work environment – a tattoo OSHA said commemorated his prior military service.

A second conductor, working out of Kansas City, was suspended without pay after making several complains about “rough spots on the track,” said OSHA.

And a UP engineer, working out of Tucson, Ariz., was improperly terminated after reporting a workplace injury, said OSHA in imposing the awards and fines.

Separately in August, OSHA ordered BNSF to pay a conductor $300,000 to cover back wages, attorney’s fees and damages for improperly suspending her after she reported an injury. According to OSHA, the conductor twisted a knee in a BNSF yard in Seattle.

Although BNSF officials followed her to the emergency room, according to OSHA, the railroad later accused her of failing to report the injury in a timely manner and suspended her for 30 days without pay. BNSF also assessed her points, alleging she needed additional knowledge, training or behavior focus, said OSHA, which called that action “disciplining an employee who reports a work-related personal injury.”

In other recent OSHA actions:

* Norfolk Southern was ordered to pay a former employee more than $122,000 in compensatory and punitive damages, plus attorney fees, for improper termination after the employee reported an on-duty injury. OSHA also issued a startling statement validating what many UTU members have long suspected – that Norfolk Southern’s culture of employee harassment and intimidation permitted the railroad to “maintain the appearance of an exemplary safety record and continue its 22-consecutive-year record as recipient of the E.H.Harriman Gold Medal Rail Safety Award.”

According to OSHA, the injury occurred in a NS yard in Jamestown, N.C., while the worker was removing spikes. Fearing loss of employment, the worker did not report the injury until a re-injury occurred. The employee was subsequently terminated.

* Metro North Commuter Railroad was ordered to promote a worker and pay him more than $130,000 in compensatory and punitive damages, plus legal fees, for improperly discriminating against him by classifying the injury as not work-related and denying him a promotion.

* A Wisconsin Central conductor was awarded more than $125,000 in compensatory and punitive damages, plus legal fees, following unlawful harassment and intimidation as the result of reporting an injury.

* Union Pacific was ordered to rehire a machinist it had fired following the reporting of a work-related injury.

* BNSF was ordered to rehire a conductor after being found guilty of improper retaliation after the conductor filed an injury report.

In all cases, OSHA ordered the railroads to provide training on whistle-blower rights to its managers, supervisors and employees, and to notify employees of their rights to be able to file complains without fear of retaliation under the Federal Rail Safety Act.

A rail employee may file a whistle-blower 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

By FRA Associate Administrator for Safety Jo Strang

The Federal Railroad Administration’s Risk Reduction Program is a voluntary industry-wide initiative to reduce accidents and injuries and build a strong safety culture by expanding the toolkit to analyze and manage risk.

Eventually, these assessments will complement other programs such as safety inspections of railcars and injury reporting.

We are currently drafting a regulation requiring railroads to develop comprehensive risk reduction programs.

The FRA Risk Reduction Program affects every railroader through timely reporting of employee injuries and illnesses.

Additionally, an FRA team is collecting data on current practices and is seeking ways to prevent harassment and intimidation of injured railroad employees.

The data is collected from FRA complaint and enforcement records and directly from rail labor organizations.

The FRA also is working with outside sources, including the Occupational Safety and Health Administration (OSHA), to gain a clearer understanding of that agency’s whistle-blower regulation for railroad employees, and other factors that can contribute to solving harassment problems.

Using what they have learned, our Risk Reduction Program team conducted numerous presentations for UTU members on their rights regarding work-related injuries. The team learned a tremendous amount about current conditions railroad employees face daily.

The FRA also is strongly encouraging railroads to take actions that remove the punitive policies and practices that invite or induce retaliatory harassment and intimidation.

Amtrak is one railroad that has taken strides in this direction.

In implementing its Safe 2 Safer program, Amtrak has taken positive steps to improve its safety culture. The FRA Risk Reduction Program team noted that, as a result, the number of injuries reported by Amtrak employees has risen as expected, and the number of OSHA whistle-blower cases reported by employees has decreased.

The FRA hopes this indicates that injured Amtrak employees are now seeking and receiving appropriate care; and that other railroads will learn from Amtrak’s success and implement similar programs.

The FRA appreciates the UTU’s assistance in providing this invaluable data and input to the investigation team. When and where the team is successful in mitigating risks and hazards identified, safety is improved for railroad employees and the public.

An Advanced Notice of Proposed Rulemaking was published in the Federal Register in December, and we are currently reviewing the comments received. However, in order to obtain as much stakeholder input as possible, we plan to conduct a public hearing.

In the meantime, we would appreciate receiving comments and suggestions from UTU members, which should be sent to the UTU National Legislative Office in Washington, D.C., which will collect and forward them to the FRA’S Risk Reduction Program team.

Thank you for your involvement in building a strong rail safety culture.

If a congressionally ordered railroad risk reduction program is to be effective, the Federal Railroad Administration must include railroad employees and their labor unions in the process of evaluating and managing the program.

That is the message seven rail labor organizations sent to the FRA Feb. 8 in response to an earlier FRA notice of proposed rulemaking implementing a risk reduction program.

The program was ordered by Congress in the Rail Safety Improvement Act of 2008 (RSIA). Its purpose is to reduce the consequences and rates of railroad accidents, incidents, injuries and fatalities.

The UTU was joined by the American Train Dispatchers Association, Brotherhood of Locomotive Engineers and Trainmen, Brotherhood of Maintenance of Way Employes, Brotherhood of Railroad Signalmen, Brotherhood of Railway Carmen and Transport Workers Union in commenting to the FRA.

Congress specifically concluded that having railroads “unilaterally decide issues of safety would not be in the public interest,” the UTU and the other labor organizations told the FRA. Yet, the notice of proposed rulemaking “undermines” that congressional intent.

To ensure an effective risk reduction program, the FRA must solicit rail labor input and participation, said the labor organizations. Specific to train and engine workers, such participation must include:

  • Technology implementation.
  • Fatigue management.
  • Risks posed by joint operations, including passenger and commuter trains.
  • Security risks.
  • National Transportation Safety Board recommendations.
  • Disclosure of all carrier bonus, incentive and compensation systems that reward management employees for meeting or exceeding safety related goals, targets, benchmarks or milestones.
  • Disclosure of policies and data related to waiver and discipline practices that in any way discourage accurate reporting of accidents, incidents, injuries or close calls.

The labor organizations also asked the FRA to develop historical data on the following:

  • Number of disciplinary charges filed for rule violations.
  • Number of whistle-blower cases filed by employees.
  • Number of employee dismissals.
  • Number of FRA reportable injuries.
  • Number of meet and confer sessions related to safety.
  • Safety records of regional and shortline railroads.
  • Retaliation, intimidation and overall culture, attitude and policy toward safety reporting by employees.
  • Safety incentive programs and policies that create peer pressure within work groups not to report injuries in order to preserve incentive prizes.
  • A carrier’s past response to risk, hazards, defects, near misses and safety complaints reported by employees.
  • The effectiveness of operating rules and practices in risk reduction.
  • The effectiveness of safety and training programs.

Additionally, the labor organizations asked the FRA to “pay particular attention to railroads that regularly intimidate employees to cut corners [and] hold formal hearings and discipline employees whenever accidents or injuries are reported.”

The process for evaluating and managing a risk reduction program must also include direct employee input, said the labor organizations. “There is no substitute for interviewing employees actually doing the work,” and such interviews should mask the identity of employees to ensure “they may speak freely.”

Of special importance to train and engine workers is the implementation of a fatigue management plan. “A human being cannot possibly be rested to work safely unless that human being knows when they must report for service,” said the labor organizations. “Often, safety critical employees are forced to report for service even when fatigued, or [they] face disciplinary hearings and loss of employment.

“We encourage the FRA to take immediate action to require 10 hours of advance notification for all operating employees not otherwise on assignments with defined start times,” said the labor organizations.

To read the comments of the seven labor organizations, click here.

To read the FRA’s earlier notice of proposed rulemaking, click on the following link:

www.gpo.gov/fdsys/pkg/FR-2010-12-08/pdf/2010-30836.pdf

Train and engine workers are the eyes and ears of railroads — the first to spot trouble, and the first to suffer when trouble occurs.

On railroads, trouble too often means career-ending injuries and death.

The UTU Rail Safety Task Force was created by UTU International President Mike Futhey to develop strategies to reduce rail-employee risk while on the job. Members include Arizona State Legislative Director Greg Hynes, Arkansas State Legislative Director Steve Evans and Michigan State Legislative Director Jerry Gibson.

Earlier this year, the task force asked UTU members to share their workplace concerns. The member survey revealed overwhelmingly that fatigue, harassment and intimidation are distracting members from situational awareness and placing them in harm’s way.

The comments, below, have been culled from some 1,300 member responses. Some have been edited to correct grammar and spelling, and to remove names of railroads and individuals.

President Futhey will be sharing these member comments with carrier officials. The national legislative office will be sharing them with FRA officials.

Here is a sample of comments from UTU members:

We have an increased burden thinking of what will happen to our home and family because of harassment and constant operational testing. It affects everyone when a few easy targets are harassed.

The harassment has to stop. You cannot do your job without worrying about these officials.

An alarming number of workers are in fear of losing their jobs. Harassment is now the number-one concern in the discharge of duty.

The number-one problem is horrendous lineups. I would say if the carrier could get a handle on when they run trains, members could get properly rested to go work.

Intimidation is the prime motivator for these new young managers, who have zero clues as to how a conductor/trainman performs his or her tasks.

I have never seen any other companies harass and retaliate against employees like the railroad. They got the military beat.

Biggest safety issue? Bad lineups, bad lineups, bad lineups.

I always tell friends or strangers when asked about employment, to look elsewhere. I tell them about the working environment that is almost unbearable. The carrier is all about intimidation.

How can you work safely if you know they are watching you perform your work? That person is taking your mind off your job.

If you take too long to get out of the yard you have just put a target on your back and they will try to fire you.

I have never worked in industry with so much aggression, from management toward its employees.

Lineups are our biggest concern. Deadheads not being in the lineup before they are called causes many people to go to work without being rested.

The policy of the carrier is to intimidate, harass and assess capricious discipline on all its employees. We have gone from about three investigations last year at my location to over 20, just in the last three months.

The issue with rest isn’t time off; it is knowing when you are going to work.

The carrier uses testing to discipline and to dismiss, not for training.

Harassment is daily, and when you go to work you always wonder if you will make it through the day and have a job the next.

It’s bad when you’re out doing your job as safely as you can do it and wondering if a trainmaster or official is hiding behind the trees or bushes to try to catch you doing something wrong.

The carrier follows you around, hiding in the bushes, waiting for you to break a rule.

I can only figure when I’m going to work about 10 percent of the time.

Their safety program is based on nothing more than threats, harassment and intimidation.

Testing is so rampant that we’re afraid to look back around a curve for fear of missing a yellow board or other test.

If it takes too long to do a job safely the carrier will start to impose operational testing and follow employees around.

Managers frequently change their stories and make their stories fit the definition of a failure if they find out that the initial operations test failure in the field was not a valid failure under the written rule.

They interpret rules and assess failures based on their interpretation rather than what the rule states in black and white in the General Code of Operating Rules. This environment has caused a workplace that is less safe because of employees being more concerned about how rules will be interpreted.

The engine cab is our office, and they are never cleaned! This is basic; here is where it starts.

Efficiency tests in our terminal have increased, with an increasing number of petty failures.

Carrier intimidation creates animosity between crewmembers.

It affects everyone when a few easy targets are harassed.

They don’t care about our safety; it is all about the budget.

Many incidents, injuries and/or fatalities occur during the final portion of our duty hours. Taking into account fatigue issues, “running for the quit” is a common and dangerous practice.

Some carrier officers are very disrespectful.

It is pretty bad when you feel the need to look over your shoulder constantly.

They change jobs, starting times, crew sizes at will without regard to the men and women on the front lines. It would be nice to discuss upcoming changes rather than have them shoved down our throats without any input from the members who perform the service.

Many times I would be first out on the same extra board for more than 16 hours, and as soon as I try to get more rest the call comes in for a 12-hour run out of town. It’s a lineup for an accident.

Twelve hours off at the other end of my run is too long. I can only sleep four or five hours and then I stay awake, waiting for a call. By the time I go to work I am tired again.

When I am writing in my signal awareness form all the info the company wants, I am not looking up and around to see any unforeseen or possibly a event that could be prevented. We need more time looking instead of writing with head down, potentially missing or seeing late an important situation arising ahead of the train.

It appears carrier officials only want employees to comply with rules when they are watching/testing.

Rest is a problem on account of laying over 18 to 30 hours at away-from-home terminal. When you lay around a motel that long you are wore out.

Long lay-in times between shifts in through freight pools and extra lists is the number-one cause of fatigue in the rail industry and the carriers are increasing those times to break consecutive days worked.

The biggest safety issue in my opinion is the lack of training. There are too many people forced to do their jobs without the adequate experience to do it.

Unfortunately there is no rule or test for common sense.

All we do is watch the computer because we are constantly run around by deadhead crews while we are waiting for a train.

Affecting workplace safety is the revolving-door rulebook that changes daily.

I have been tested 21 times, had four failures, with 132 different rules, and not once has an officer ever said that we were doing a good job.

I believe there needs to be much better training on territory qualifications.

The only time a switch gets oiled or adjusted is if someone calls it in as being hard to throw. If one person were to call all of them in, management would think they are whining.

There is nothing wrong with listing a train’s movement in station order on the line it is running on ahead of other trains even if it will get run-around enroute at some point, which should give a better idea when we might be going to work.

Employees feel threatened by mass confusion and constant change, which leads to loss of focus and bitterness.

Many trainmasters have little knowledge of railroading beyond their limited
classroom training. They have a “gotcha” attitude that creates an environment that is adversarial rather than cooperative.

Not knowing when I am going to work and not knowing when to get my rest is a definite safety hazard. Usually both of us on the crew are equally tired.

Some test to get it done and some keep at it until they find something.

Some don’t understand the rule they are watching us for. We never have a rules or safety class.

The piling on of new rules and frivolous demands are distractions in themselves.

While working, most members of our crew look for testing, not actual safety hazards. This is due to managers wanting us to fail.

Production quotas always take priority in the daily switching operation. When a defect is reported a manager evaluates the problem and says it’s okay to use anyway.

Trash and tripping hazards everywhere.

I always have to be thinking about if they are hiding in the weeds.

I’m not perfect by any means, but the rulebook is thicker than the Bible! Even someone who tries to work by these rules cannot possibly do so.

The carrier does not allow power naps. I have been with engineers that stayed awake in sidings and at stop signals only to have them have a hard time staying awake finishing the trip.

Our train lineup is not accurate enough for us to plan our rest.

I have noticed when I report unsafe conditions on the hotline, the carrier at times shows the condition to be corrected, when in actuality it really is not a true statement. It only looks good when someone is reading the reports.

It is the inability to plan our rest that creates the danger.

An employee who is always looking over his shoulder for a company officer hiding in the bushes trying to find you breaking a minor rule, especially a young employee, will never work safe and will never be focused on his job and will be danger to himself and others.

I heard a first line supervisor say don’t drag the job or you will get a failure.

My biggest concern is when I get called for a job I’ve never done and the carrier denies me a pilot. It’s very dangerous being on a job in an unknown area for the first time.

The changing of the lineup happens at one time or another almost each day. This seems to be, for me, the most crucial element of not being able to get proper rest before having to report for duty, especially at the away-from-home terminal.

Dispatchers will ask how long a task will take and want a time commitment. The company wants us to hurry, yet the word “hurry” isn’t anywhere in the rulebook.

As a yardmaster the most unsafe thing we do is work while we are tired. Yardmasters do not fall under the hours-of-service law. We are required to double through to a second shift if nobody else is available. This means we are required to sit in the same location, without the ability to leave, for 16 straight hours.

I have seen engines reported for defects at least five times in the last month yet no one knows anything about it and your ordered to just take it because “there is no one here that can fix it.”

Biggest distraction is conductor’s log. Because penalty for multiple missing entries is so severe it takes precedence when, at times, situational awareness would dictate focus in other job areas.

Even when I report safety issues it seems that the carrier doesn’t address them in a timely manner.

Good railroaders need mentoring. Give me a chance to develop these young, talented railroaders. When they are ready, let their peers decide.

The things that we most often are being tested on are minor rules infractions. This puts a great level of stress on the employee.

Far too many officers have no experience doing real railroad work yet are told to tell us what to do and how to do it. Far too often we are asked to operate unsafely because they really do not understand what is happening.

At times I feel forced to hurry by company officials that stand and watch and, at times, hide and watch. The threat of constantly being disciplined is extremely distracting.

There have been too many changes in rules and too many different interpretations by company officers, so even though I might think I’m complying some officer might not.

It seems that managers try to get creative to compete with the knowledge of either the employee or another manager. I often find myself looking, nervously around, for tricky managers rather than focusing on the task at hand.

We are more concerned about not missing a little step in the procedure and losing our job than the job at hand or safety.

Way too much rushing you out the door when you get to work. No time to update time books, get operating bulletins, job briefings, etc. Every day is the same story. The second you walk in the door “we need you to get going right away….gotta get this train out and moving.”

Having a trainmaster hover over me while I look over my train papers or utilize the bathroom is just ridiculous.

Biggest problem is being watched by inexperienced supervisors.

The morale has never been so low and lack of truly experienced carrier officers so high.

When I report issues, I get the feeling they do not really care until somebody gets hurt.

We need bosses to tell us when they see us doing something wrong, instead of trying to fire us.

We are tested constantly and are treated with no respect whatsoever.

The last rule added to test brake effectiveness is a good example. It may work well for road trains left in a pass, but working trains, locals to be specific, are really hampered by the rule, and in some cases you don’t have enough cars to place brakes on to hold the balance of the train that is going to cut away. I was told to use my railroad experience in such cases. The rulebook is used only when it is convenient to the carrier.

This is my 35th year on the railroad and I have been in a constant state of unrest for practically the whole time. I’m not sure when anyone will realize I am the only person that can tell you when I’m tired. No amount of regulating, policymaking or rulemaking will ever change that fact.

I love my job. I want to work safe, but the company keeps saying that we are taking too much time.

Why is it that every time a FRA official comes onto any carrier property, they are always joined at the hip by one or more carrier officials? They never come on property with union or state legislative officials to converse with crews.

One of the most dangerous things is wide-body engines that have the angle cock on the head-end on the engineer’s side. I’m constantly climbing over these engines to turn the angle cock just to climb back over to turn an angle cock on cars I’m switching. On the road you have to go to the live track side to get to these angle cocks.

I feel that there is a greater pressure on first-line supervisors to find failures than to promote safety.

Click here to see a summary, in percentage terms, of member safety concerns.

Also, the UTU Rail Safety Task Force has its own Web page, accessible at www.utu.org by clicking on the red “Rail Safety Task Force” button.

 July 19, 2010

By UTU Assistant President Arty Martin

Early in our lives, we learn that success — whether it be graduation, being selected for a church choir, earning a spot on a sports team, or being hired to drive a bus, fly a plane or switch rail cars — requires preparation, following rules, and attention to the job.

Our union is structured to assure each of us the opportunity and right to guide our future under our collective bargaining agreements. Our responsibility is to understand our agreements, and learn to document carrier violations.

This is because we cannot expect the local chairperson, general chairperson or an International officer to know everything that is happening on a daily basis at each location.

Local officers, upon learning of your problems, have the responsibility to inform the general chairperson and/or state legislative director (the latter where safety issues are concerned). These officers then have the option, if necessary, of seeking assistance from the International.

The UTU constitution is very strong in preserving the autonomy of each local, with succeeding levels (general committees, state legislative boards and the International) prepared to assist in ensuring you obtain proper pay, benefits and working conditions as provided by your agreements.

At the International, we have one of the strongest and most successful law departments among labor organizations. History shows that the UTU does not hesitate to go to the court house on your behalf to enforce agreements.

We also work to build coalitions with other labor organizations, and often through the AFL-CIO, which carries the banner for almost 12 million working families.

The UTU’s membership in AFL-CIO — along with the UTU PAC — is a powerful tool for electing a labor-friendly candidates and influencing the passage of labor-friendly laws. I take pride that UTU International President Mike Futhey was just elected a vice president of the AFL-CIO, and named to its ruling Executive Committee.

I am reminded of the famous Norman Rockwell paintings of four basic freedoms: Freedom of speech, freedom of worship, freedom from want, and freedom from fear.

These freedoms are the soul of union brotherhood and sisterhood, as working men and women from diverse backgrounds and cultures come together to fight for individual and collective respect and workplace rights.

I also recall reading a famous speech by President Franklin D. Roosevelt, in which he proposed a Second Bill of Rights to guarantee a job with a living wage, freedom from unfair competition and monopolies, a home, medical care, education and recreation.

Much progress has been made, but more must be achieved. Together, through preparation and hard work, we must continue — with fire in the belly — the fight for what is right.

At the local level, members have the responsibility to fight for these rights also, beginning with identifying and properly documenting situations that hinder our very basic rights to a safe workplace, free of intimidation and harassment.

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