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November 22, 2017
 JED DODD
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Whistleblower Protections for Rail Workers

Individuals working for railroad carriers are protected from retaliation for reporting potential safety or security violations to their employers or to the government


For Big Railroads, A Carload of Whistleblower Complaints.
Nouveau Carpetbaggers openly blatant in ignoring the provisions of [federal law] | FairWarning.org

Railroad companies are 7 of the top 10 leading targets of retaliation complaints for cases involving workers who reveal hazards or engage in protected activities, such as reporting injuries.

Under the 22 federal whistleblower laws administered by the Occupational Safety and Health Administration, American workers who disclose hazards or engage in other “protected activity” are shielded against retaliation by their employers. The protected activities vary by industry, but include reporting injuries, disclosing the misuse of public funds and refusing to perform dangerous tasks that would violate safety rules. OSHA protection covers, among many others, truck drivers, public transit employees, nuclear plant operators and, since 2007, railroad workers. Yet despite the broad safeguards for railroaders – or perhaps partly because of them – complaints of illegal retaliation abound in the industry.

From October 2007 through June 2015, OSHA figures show, railroad workers filed more than 2,000 retaliation complaints, although the pace has slowed lately. Among the top 10 targets of complaints over the nearly eight-year period, seven were railroads, led by the two largest U.S. railroads, BNSF (409 complaints) and Union Pacific (360).

OSHA investigators and Labor Department administrative law judges repeatedly have upheld complaints against the railroads, more than half of which involve illegal retaliation against workers who report personal injuries. Read More... source article (3.8mb)


BNSF Railway Ordered to Pay $12K to Worker
Sep 03, 2014 | OSHA online

The railway company must pay a worker who was disciplined for taking doctor-ordered leave.

BNSF Railway Co. has been found in violation of the Federal Railroad Safety Act, according to a news release from OSHA. The violation is for disciplining an employee at its Murray Yard complex for following a physician's treatment plan. The company must pay the conductor $12,000 in damages, remove disciplinary information from the employee's personnel record, and provide whistleblower rights information to its employees.

"It is illegal to discipline an employee for following doctor's orders," said Marcia P. Drumm, OSHA's acting regional administrator in Kansas City. "Workers should never be forced to choose between their health and facing disciplinary action. Whistleblower protections play an important role in keeping workplaces safe."

An investigation by OSHA upheld the allegation that the railroad company disciplined the conductor, who has been employed there since 2004, in retaliation for taking leave in line with a doctor's treatment plan. The employee was ill and notified a supervisor that he was seeing a doctor the afternoon of Nov. 18, 2013. Following his doctor's appointment, the conductor immediately notified a supervisor that the doctor had ordered him to stay out of work for the remainder of the day, due to a personal illness. The company then accused the employee of violating its attendance policy and subsequently disciplined the employee.

BNSF Railway has been ordered to pay $2,000 in compensatory and $10,000 in punitive damages, as well as attorney's fees.


Norfolk Southern must pay over $1.6 Million
OSHA awards damages and reinstatement to injured workers

February 27, 2013 - OSHA Secretary's finds in favor of Brother Don Glista and Brother Bill Orr in their whistleblower complaints against Norfolk Southern. In total, NS has been ordered to pay the two more than $685,000 combined including a total of $300,000 in punitive damages plus attorney fees. NS has also been ordered to conduct training of its managers in the Pittsburgh Division on the rights of employees to report injuries without fear of retaliation. Copies of the findings can be viewed here for Brother Galista and here for Brother Orr

February 27, 2013 - OSHA just issued another finding against Norfolk Southern and in favor of BMWED member Brother Gary Reichert and awarded him damages in excess of $437,000 plus attorney fees and with reinstatement. Read the OSHA findings here for Brother Reichert.


July 16, 2012 - View the U.S. Department of Labor's Occupational Safety & Health Administration (OSHA) News Release and related Memorandum of Agreement between OSHA and the Federal Railroad Administration (FRA) announcing the agencies’ coordination and enforcement of the Whistleblower Provisions of the Rail Safety Improvement Act.

Also view the joint letter sent by OSHA/FRA to the Association of American Railroads (AAR), the American SHort Line and Regional Railroad Association (ASLRRA), and the American Public Transportation Association (APTA) outlining the agencies’ joint commitment to protect rail workers from retaliation.


Norfolk Southern gets Caught in Lie
Ordered to reinstate and pay more than $300,000 to injuried worker

On numerous occasions, OSHA has found that Norfolk Southern violated the whistleblower protection provisions of Federal Railroad Safety Act (FRSA) when it brought disciplinary charges against  employees who reported workplace injuries, charged those employees with falsifying or making misleading or conflicting statements about their injuries, found them guilty and terminated their employment.

OSHA recently held that in one particular case near Ypsilanti, Michigan, Norfolk Southern (the respondent) presented an "extraordinary and fraudulent theory" on which to discharge a long term BMWED employee for reporting an injury.

View OSHA's Order


Norfolk Southern told to pay $122,199 to ex-employee.
The Virginian Pilot, August 12, 2011

The federal government has ordered Norfolk Southern Corp. to pay more than $122,000 in damages to a former employee who was fired after reporting an on-the-job injury in 2009. The former employee was injured on May 13, 2009, in Jamestown, N.C., in the process of pulling a spike from a rail line. "Fearing loss of employment, the worker did not report the injury until a re-injury occurred in October when, at the suggestion of management, the employee saw a doctor," OSHA stated in a news release. "After returning to work, the employee was suspended and later terminated for allegedly falsifying the injury."

The Department of Labor's Occupational Safety and Health Administration said the railroad violated the employee's rights under the whistle-blower provisions of the Federal Railroad Safety Act. OSHA ordered Norfolk Southern to pay the former worker $122,199 in compensatory and punitive damages, as well as reasonable attorney's fees.

"Every American worker has the right to report an injury without fear of retaliation or intimidation," said Cindy A. Coe, OSHA's regional administrator in Atlanta, in a statement. A Norfolk Southern spokesman declined to comment, because the matter involved litigation. Read More of the article.

Then view the August 8, 2011 OSHA Order for the above whistleblower case, which provides the names, dates, and break-down of the complaint and order.


Filing a Whistleblower Protection Complaint

Were you brought up on charges (in a disciplinary proceeding) or threatened retaliation for requesting medical or first-aid treatment, or for following orders or a treatment plan of a treating physician?

Were you discharged or in any other manner retaliated against because you provided information to, caused information to be provided to, or assisted in an investigation by a federal regulatory or law enforcement agency, a member or committee of Congress, or your company about an alleged violation of federal laws and regulations related to railroad safety and security, or about gross fraud, waste or abuse of funds intended for railroad safety or security?

If you believe you have been retaliated against you should file a "Whistleblower Report" by completing this Whistleblower Protection Questionnaire and submitting to the:

Pennsylvania Federation BMWED-IBT
421 North 7th Street, Suite 299
Philadelphia, PA 19123
fax 215-574-1910

or by notifying our union using our online form. The information you provide will be kept in strictest confidence during our investigation.

TIME LIMIT for FILING = 180 days

Whistleblower Investigations Manual


April 2011 OSHA addresses Whistleblower Protections when a NS conductor was terminated for reporting nauseous odors while bleeding of railcars. The award reinstated conductor, making him whole for lost wages and seniority, inculding legal fees. View award.


April 7, 2010 NJ Transit ordered to pay employee $570G in whistleblower case. A New Jersey Transit employee has received a record $569,587 award after a federal investigation found that NJ Transit illegally retaliated against the Clifton man — resulting in his losing his home, car and credit rating — for reporting an injury to another worker. Read More...


March 16, 2010 Norfolk Southern is proud of their safety record, but is their railroad really safe, or do they simply falsify the data regarding injuries?  Complaints in behalf of individual injured members of the BMWED, represented by Union lawyers, have been filed under the Whistleblower laws with the Occupational Safety and Health Administration.  These complaints allege that Norfolk Southern, and its managers, have engaged in a pattern of systematically intimidating witnesses, denying proper medical attention to injured workers and discharging employees who report injuries. Read the March  2010 Norfolk Southern Edition of An Appeal To Reason.

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What Is Protected Activity ?

If your employer is covered under the Federal Railroad Safety Act (FRSA), it may not discharge you or in any other manner retaliate against you because you provided information to, caused information to be provided to, or assisted in an investigation by a federal regulatory or law enforcement agency, a member or committee of Congress, or your company about an alleged violation of federal laws and regulations related to railroad safety and security, or about gross fraud, waste or abuse of funds intended for railroad safety or security. Your employer may not discharge or in any other manner retaliate against you because you filed, caused to be filed, participated in, or assisted in a proceeding under one of these laws or regulations. In addition, you are protected from retaliation for reporting hazardous safety or security conditions, reporting a work-related injury or illness, refusing to work under certain conditions, or refusing to authorize the use of any safety- or security- related equipment, track or structures. You may also be covered if you were perceived as having engaged in the activities described above.

In addition, you are also protected from retaliation (including being brought up on charges in a disciplinary proceeding) or threatened retaliation for requesting medical or first-aid treatment, or for following orders or a treatment plan of a treating physician.

Adverse Actions

Your employer may be found to have violated FRSA if your protected activity was a contributing factor in its decision to take adverse action against you. Such actions may include:

  • Firing or laying off
  • Blacklisting
  • Demoting
  • Denying overtime or promotion
  • Disciplining
  • Denying benefits
  • Failing to hire or rehire
  • Intimidation
  • Making threats
  • Reassignment affecting promotion prospects
  • Reducing pay or hours
  • Disciplining an employee for requesting medical or first-aid treatment
  • Disciplining an employee for following orders or a treatment plan of a treating physician
  • Forcing an employee to work against medical advice

Download and view OHSA's Whistleblower Protection for Railroad Workers


THE TIME LIMIT BEGINS RUNNING THE DAY THE ADVERSE EMPLOYMENT ACT IS TAKEN

The Time Limit does not stop while you and your chairman process your grievance through the investigation - or on property appeals, or an appeal to a law board.


Time Limits
RR Whistleblower Protection

180 Days (Rule of Thumb: Figure 6 months and count back 5 days from the last day). Example; dismissed March 3rd, go to September 3rd, subtract 5 days, so the safe date is August 29th.

Note: The time begins to run the day the event happens: example

Date of Dismissal (date you get the dismissal letter, but to be safe, use the date on the dismissal letter itself).

Date disqualified from job (if verbally ordered off property, may date from that day).

Do not wait until your on-property discipline appeal process is through, you are not required to exhaust your contract remedies before filing for §20109 protections. Delays in filing for §20109 protections will render your claim proceedurally barred for filing later than the 180 day time limit.

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Complaint

  1. Put in as much detail as you can assemble, and all specifics, names, dates, times, places, equipment, etc.

  2. Put in all contact information.

  3. Identity protected activity specifically.

  4. Identify the parts of §20190 you claim were violated that cover your particular protected activity.

  5. Put in why you believe the adverse act against you was motivated by retaliatory motives, and their supposed, or claimed, reason for the adverse act is a "pretext."

Prima Facie Case

  1. You performed protected activity.

  2. RR did an adverse employment act to you.

  3. The adverse act was in retaliation for the protected activity.

  4. You were not guilty of any offense which would justify the act they did to you.


Federal Rail Safety Act (FRSA)
49 U.S.C.§20109

§20109. Employee 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 (5 U.S.c. App.; Public Law 95-452);

(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; or

(7) to accurately report hours on duty pursuant to chapter 211.

(b) Hazardous safety or security conditions.

(1) A railroad carrier engaged in interstate or foreign commerce, or an officer or employee of such a railroad carrier, shall not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee for­

(A) reporting, in good faith, a hazardous safety or security condition;

(B) refusing to work when confronted by a hazardous safety or security condition related to the performance of the employee's duties, if the conditions described in paragraph (2) exist; or

(C) refusing to authorize the use of any safety-related equipment, track, or structures, if the employee is responsible for the inspection or repair of the equipment, track, or structures, when the employee believes that the equipment, track, or structures are in a hazardous safety or security condition, if the conditions described in paragraph (2) exist.

(2) A refusal is protected under paragraph (1)(B) and (C) if­   

(A) the refusal is made in good faith and no reasonable alternative to the refusal is available to the employee;

(B) a reasonable individual In the circumstances then confronting the employee would conclude that­

(i) the hazardous condition presents an imminent danger of death or serious injury; and

(ii) the urgency of the situation does not allow sufficient time to eliminate the danger without such refusal; and

(C) the employee, where possible, has notified the railroad carrier of the existence of the hazardous condition and the intention not to perform further work, or not to authorize the use of the hazardous equipment, track, or structures, unless the condition is corrected immediately or the equipment, track, or structures are repaired properly or replaced.

(3) In this subsection, only paragraph (l)(A) shall apply to security personnel employed by a railroad carrier to protect individuals and property transported by railroad.

(c) Prompt Medical Attention.­

(1) Prohibition.- A railroad carrier or person covered under this section may not deny, delay, or interfere with the medical or first aid treatment of an employee who is injured during the course of employment. If transportation to a hospital Is requested by an employee who is injured during the course of employment, the railroad shall promptly arrange to have the injured employee transported to the nearest hospital where the employee can receive safe and appropriate medical care.

(2) Discipline.- A railroad carrier or person covered under this section may not diSCipline, or threaten diSCipline to, an employee for requesting medical or first aid treatment, or for following orders or a treatment plan of a treating physiCian, except that a railroad carrier's refusal to permit an employee to return to work following medical treatment shall not be conSidered a violation of this section if the refusal is pursuant to Federal Railroad Administration medical standards for fitness of duty or, if there are no pertinent Federal Railroad Administration standards, a carrier's medical standards for fitness for duty. For purposes of this paragraph, the term "discipline" means to bring charges against a person in a disciplinary proceeding, suspend, terminate, place on probation, or make note of reprimand on an employee's record.

(d) Enforcement Action.­

(1) In general.- An employee who alleges discharge, discipline, or other discrimination in violation of subsection (a) or (b) of this section, may seek relief in accordance with the provisions of this section, with any petition or other request for relief under this section to be initiated by filing a complaint with the Secretary of Labor.

(2) Procedure.­

(A) In general.- Any action under paragraph (1) shall be governed under the rules and procedures set forth in section 42121(b), including:

(i) Burdens of proof.- Any action brought under (c)(1) shall be governed by the legal burdens of proof set forth In section 42121(b).

(ii) Statute of limitations.- An action under paragraph (1) shall be commenced not later than 180 days after the date on which the alleged violation of subsection (a) or (b) of this section occurs.

(iii) Civil actions to enforce.- If a person fails to comply with an order issued by the Secretary of labor pursuant to the procedures in section 42121(b), the Secretary of Labor may bring a civil action to enforce the order in the district court of the United States for the judicial district in which the violation occurred, as set forth in 42121.

(B) Exception.- Notification made under section 42121(b)(1) shall be made to the person named in the complaint and the person's employer.

(3) De novo review.- With respect to a complaint under paragraph (1), if the Secretary of Labor has not issued a final decision within 210 days after the filing of the complaint and if the delay is not due to the bad faith of the employee, the employee may bring an original action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in controversy, and which action shall, at the request of either party to such action, be tried by the court with a jury.

(4) Appeals.- Any person adversely affected or aggrieved by an order issued pursuant to the procedures in section 42121(b), may obtain review of the order in the United States court of appeals for the circuit in which the violation, with respect to which the order was issued, allegedly occurred or the circuit in which the complainant resided on the date of such violation. The petition for review must be filed not later than 60 days after the date of the issuance of the final order of the Secretary of Labor. The review shall conform to chapter 7 of title 5. The commencement of proceedings under this paragraph shall not, unless ordered by the court, operate as a stay of the order.

(e) Remedies.­

(I) In general.- An employee prevailing in any action under subsection (c) shall be entitled to all relief necessary to make the employee whole.

(2) Damages.- Relief In an action under subsection (c) (including an action described in subsection (c)(3)) 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.- Rellef in any action under subsection (c) may include punitive damages in an amount not to exceed $250,000.

(f) 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.

(g) No preemption..- Nothing in this section preempts or diminishes any other safeguards against discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner of discrimination provided by Federal or State law.

(h) Rights retained by employee.- Nothing In this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement. The rights and remedIes in this section may not be waived by any agreement, policy, form, or condition of employment.

(i) Disclosure of identity.­

(1) Except as provided in paragraph (2) of this subsection, or with the written consent of the employee, the Secretary of Transportation or the Secretary of Homeland Security may not disclose the name of an employee of a railroad carrier who has provided information about an alleged violation of this part or, as applicable to railroad safety or security, chapter 51 or 57 of this title, or a regulation prescribed or order issued under any of those provisions.

(2) The Secretary of Transportation or the Secretary of Homeland Security shall disclose to the Attorney General the name of an employee described in paragraph (1) if the matter is referred to the Attorney General for enforcement. The Secretary making such disclosures shall provide reasonable advance notice to the affected employee if disclosure of that person's identity or identifying information is to occur.

(j) Process for reporting security problems to the Department of Homeland Security.­

(1) Establishment of process.- The Secretary of Homeland Security shall establish through regulations, after an opportunity for notice and comment, a process by which any person may report to the Secretary of Homeland Security regarding railroad security problems, deficiencies, or vulnerabilities.

(2) Acknowledgment of receipt.- If a report submitted under paragraph (1) identifies the person making the report, the Secretary of Homeland Security shall respond promptly to such person and acknowledge receipt of the report.

(3) Steps to address problern.- The Secretary of Homeland Security shall review and consider the information provided in any report submitted under paragraph (1) and shall take appropriate steps to address any problems or deficiencies identified.

(Added Pub.L 103-272, § l{e), July 5, 1994, lOS Stat. 867, and amended Pub.L 110-53, litle XV, § 1521, Aug. 3, 2007, 121 Stat. 444; Pub.L 110-432, Div. A, litle IV, § 419, Oct. 16,2008, 122 Stat. 4892.)

Download §20109 Employee Protections


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