CLEVELAND, June 26 — The railroad industry has launched a coordinated attack on rights enacted by Congress as part of the Federal Railroad Safety Act (FRSA).
These “whistleblower” rights, which are contained in Section 20109 of Title 49 of the United States Code, protect BLET members and other railroad workers from harassment and intimidation when they report or participate in an investigation of injuries and safety violations, when they seek prompt medical treatment for on-the-job injuries, or when they follow their physician’s treatment plans.
A major battle is being fought out in the United States District Court for the District of Columbia, where Norfolk Southern Railway (NS) has sued Labor Secretary Hilda Solis. NS seeks to overturn a decision by the Administrative Review Board (ARB) of the Occupational Safety and Health Administration (OSHA) affirming an earlier decision by an OSHA Administrative Law Judge (ALJ) that railroad workers may pursue whistleblower claims in addition to labor agreement disciplinary appeals when their rights are violated by a railroad.
The ALJ had ruled that both avenues are available to railroad workers because subsection (h) of Section 20109 states that “[n]othing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee … under any collective bargaining agreement.”
NS, with the support of the Association of American Railroads, seeks to overturn this decision, claiming that railroad workers who appeal their dismissals are barred from pursuing a whistleblower claim by FRSA subsection (g), which states that 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 carriers argue that the right to appeal discipline for alleged rules infractions to a Section 3 adjustment board under the Railway Labor Act constitutes “protection under another provision of law”, not from a collective bargaining agreement.
The ALJ ruling upheld by the ARB was issued in a case involving the whistleblower rights of a BLET member wrongfully terminated by the Union Pacific Railroad (UP). The ARB decision came in a consolidated appeal with an NS conductor’s complaint, which opened the door to the NS court challenge.
The BLET member involved is a locomotive engineer who was discharged in November 2007. The BLET appealed on his behalf under the collective bargaining agreement and, when UP refused to put him back to work, successfully argued to a Section 3 arbitrator that his agreement rights were violated. On March 27, 2008, this member filed a whistleblower complaint with OSHA, charging that he was illegally terminated for reporting an on-the-job injury.
The National Division has requested the court’s permission to intervene in NS’s lawsuit in defense of this Brother’s whistleblower rights, and join Secretary Solis’s Motion to Dismiss the case.
“This is nothing more than an attempt by NS, UP, and the other carriers to silence our members and strip them of important whistleblower protections provided under the FRSA,” BLET National President Dennis R. Pierce said. “Railroad workers should not be subject to dismissal when they are injured on the job. These whistleblower protections are needed to stop railroads from harassing and intimidating workers who speak out about safety.”
The whistleblower decision NS is attempting to overturn is just one of several OSHA decisions that have gone against that carrier. On June 18, OSHA announced that NS has been fined over $800,000 for unlawfully firing workers who reported on the job injuries, including $525,000 for punitive damages and attorneys’ fees.
The carrier also has been ordered to expunge the disciplinary records of the whistleblowers, post workplace notices regarding railroad workers’ whistleblower protection rights and provide training to its workers about these rights.
Newspapers throughout the United States have published reports regarding harassment and intimidation of NS employees. None was more critical than the Virginian-Pilot, based in Roanoke, Va., where NS is headquartered. In an opinion column dated June 21, 2012, the newspaper reported that OSHA’s ruling had tarnished the railroad’s safety achievements over the years in winning the industry’s highest award for safety, the E. H. Harriman Award.
According to the newspaper: “Discouraging reports of injuries doesn’t improve safety. Changing that practice might cost Norfolk Southern an award, but it would help the company — and workers — in the long run.”
NS is not the only Class I carrier that has caught OSHA’s attention. Early this month the Assistant Secretary for Occupational Safety and Health slammed attorneys for Burlington Northern Santa Fe Railway (BNSF) for asking OSHA to disclose the names of non-management employee witnesses the agency intended to interview in several other ongoing whistleblower investigations.
BNSF officials had taken the ludicrous position that it should be able to “offer its representation” to these non-management witnesses. BNSF also asserted that it had a right to be present during any OSHA interview of a non-management witness. In a letter to BNSF’s General Counsel, Assistant Secretary David Michaels rejected the BNSF requests as “wholly inappropriate.”
“OSHA assumes that BNSF 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 … OSHA takes allegations of such retaliation extremely seriously and will not tolerate retaliation against witnesses who cooperate in FRSA whistleblower investigations,” Michaels wrote.
President Pierce responded to Assistant Secretary Michaels on behalf of all BLET members in a June 25 letter, thanking him for his “strongly worded rebuke of BNSF’s request and its position,” and supporting the agency’s “position in respecting employee confidentiality as complete, unequivocal and paramount in cases such as this.”
In response to the growing need for education and information to increase awareness and use of whistleblower protections throughout the Organization, the National Division is providing all General Chairmen, State Legislative Board Chairmen, Local Chairmen and Legislative Representatives this latest information concerning the industry’s attempt to thwart whistleblower investigations and enforcement of worker protections.
“In the NS/UP case you can see the railroads are doing everything in their power to prevent railroad workers from exercising their whistleblower rights,” President Pierce said. “And BNSF is attempting to uncover the identities of those who may be testifying in whistleblower cases in an effort to directly interfere in OSHA investigations. These are the new tactics the nation’s railroads are using to continue their decades-old harassment and intimidation of railroad workers who are injured on the job — and we must fight them at every turn.”
Copies of OSHA’s press release concerning the NS fines, OSHA’s letter to BNSF’s Legal Department, National President Pierce’s response to the OSHA letter, and his letter to BLET officers concerning this issue can be viewed, printed and/or downloaded from this link: