Rail Worker Rights Leaving
19th Century Behind

July 9, 2014

The CSX Selkirk Repair Yard where J.J. Giuliano was local chairman of Albany, N.Y., Local 770. Giuliano has filed a retaliation complaint against CSX. Photo by Flickr user BrianBenson used under a Creative Commons license.

CSX Transportation’s Selkirk repair shop is a massive, loud throwback to America’s industrial past. Diesel locomotives, some weighing 180 tons, driven by 6,000-horsepower 20-cylinder engines, are torn apart and rebuilt beneath its soaring pigeon-filled rafters. A dozen, sometimes twice that number, are swarmed by teams of electricians, welders, carmen, machinists and sheet metal workers.

J.J. Giuliano has been local chairman of the Selkirk unit of Albany, N.Y., Local 770 since 2003. Keeping his members safe is Giuliano’s top priority, and along with the leaders of the other trades at Selkirk, he sat on the shop’s safety committee.

“For 10 years we made recommendations to management and for 10 years not one of them was funded by the company,” Giuliano said. “I stayed on because I wanted to look out for my guys. But at a certain point we were letting the company get away with avoiding solving safety problems.”

In September 2013, Giuliano was done with the charade. He sent a letter to the plant superintendent telling him that he was quitting the committee. He listed 21 safety violations that threatened the health of IBEW members, public safety or both that had repeatedly been brought to the company’s attention and never fixed. They included everything from managers green-lighting locomotives for use without testing safety equipment to requiring workers to repair trains covered in pigeon feces but refusing to provide, or even allow the use of, protective clothing.

“When local management decides to act as though safety is a priority, this organization will re-evaluate its position in this matter,” he wrote. “Until that time, should it ever come, our concerns will be brought elsewhere.”

Giuliano handed over the letter Friday and posted a copy of it to the local’s glass-enclosed bulletin board. Two and half hours into his next workday, Giuliano was cited for violating safety rules and was later suspended for five days.

“It’s typical. Instead of fixing a problem, they attack the person who points it out,” Giuliano said.

Up until 2008 that would have been the end of the story. As a 2007 congressional hearing found, punishing workers instead of fixing safety hazards has been standard in the rail industry since the days of the robber barons more than a century ago. It was nearly that long ago that President Theodore Roosevelt signed many of the laws still regulating the rail industry.

As Social Security, workers’ compensation insurance, Occupational Safety and Health Administration oversight and whistleblower protections were made standard for most working people, rail workers were left outside looking in.

The first safety protections for rail workers weren’t even enacted until the Federal Rail Safety Act of 1970, said Larry Mann, an attorney and noted rail safety expert. But Mann says the scope of the law was extremely limited and enforcement by the Federal Rail Administration, which has historically been run and staffed by former rail company managers, was lax at best.

Giuliano says he was suspended for calling attention to multiple safety violations at the Selkirk Repair Yard. Photo by Flickr user BrianBenson used under a Creative Commons license.

But in 2007, the late congressman from Minnesota, James L. Oberstar, inserted a few paragraphs into the massive bill implementing the recommendations of the 9/11 commission. Section 100 of 106, in part written by Mann, dramatically expanded the rights and protections of rail workers. Oberstar later said that the goal of the law was a complete overhaul of a safety culture” preoccupied with blame, with fault and with individuals.”

The law protected rail workers from retaliation for reporting safety hazards and injuries (see sidebar for full list of protections and prohibited retaliations) that echo whistleblower protections for aviation, nuclear, pipeline and financial industry workers.

The penalties for doing so were purposefully harsh. Workers were to “be made whole” meaning if they lost their job, had their credit rating ruined and lost their house, the company would have to reinstate the worker, pay to fix their credit rating and recover the house or pay for its loss if it was found guilty. All that in addition to back wages, attorney’s fees and punitive damages.

“We snuck it in,” Larry Mann. “The companies didn’t see it coming, thank God.”

It wasn’t just the companies who were surprised. Charles Goetsch, one of 14 attorneys designated by the IBEW to represent injured railworkers. (Find the full list here). He found out about it only after it passed.

“I thought ‘I’ve been waiting for this law for 30 years,’” Goetsch said. “It was huge transfer of power to the workers and they didn’t have to negotiate away a thing to get it.”

Killing the Messenger

Giuliano wasn’t surprised about the retaliation by CSX. He’s seen it all before.

“We would tell management about an oil leak and the most they would do is put up an orange cone. Three weeks later, they’d come clean it up.” he said. “But if a guy slipped and fell in the interim they’d suspend him because he should have been looking out for it.”

CSX, like nearly all passenger and freight rail companies, have long lists of forbidden actions. Industry spokesmen have defended the rules on the grounds that most injuries are caused by worker error, so they are trying to correct worker behavior. But the rules are often vague, for example requiring workers to “maintain situational awareness” or to “work carefully.” In 2012 memo, OSHA Deputy Assistant Secretary Richard Fairfax wrote that such rules are “pretexts for discrimination against an injured employee… putting the employer’s entire workforce at risk.”

Giuliano said he saw workers severely injured who did not get emergency help or report it to the company because they were afraid of being punished.

“I saw someone shocked so badly we checked if his heart stopped,” Giuliano said. “Another time a guy was holding the tubing for an acetylene torch when they exploded. He seriously burnt his hands. I know neither one went to the doctor because they were afraid of what the company might do.”

The problem, says Goetsch, is that the only time the safety rules were enforced was after an injury.

“The goal wasn’t to improve safety, it was to keep injured workers from reporting their injuries,” Goetsch said. “The purpose was to create the illusion of safety.”

 “Discipline trumped safety every time,” Goetsch said.

Putting the Public at Risk

Goetsch said retaliation also put the public at risk: workers unfit to work were ordered to ignore doctor’s orders and return; workers fired for objecting when managers knowingly cleared locomotives for duty when federally required safety equipment was not repaired or tested.

Although reports about rail safety show a general improvement, leaving aside the reliability of those statistics, derailments in recent years have nevertheless killed and injured dozens of passengers and employees.

And when freight trains carrying volatile chemicals are involved the results can be even more disastrous.

Last year just across the Maine border in Lac Megantic, Québec, the brakes failed on an unattended freight train hauling 72 oil tank cars. It picked up speed as it rolled uncontrollably into the center of town. When it derailed the cars were ripped apart and the ensuing explosion destroyed nearly a third of the buildings in town. Burning oil poured into the sewers spreading the fire throughout the town. At least 47 people died.

Each year, more than 400,000 carloads of crude oil move by train, a number that is growing fast as shale oil production far exceeds pipeline capacity. Trains transport chemicals like chlorine gas that can be far more dangerous than even crude oil.

“I have absolutely seen management tell us to send out locomotives with the kinds of problem that could have caused Lac Megantic.” Giuliano said. “Absolutely I’ve seen it and more than once.”

 A Classic Case of Retaliation

The day Giuliano returned to work after posting the letter he noticed that three managers who rarely make it down to the shop floor were standing nearby watching him, and only him, work.

One of them soon came over and told Giuliano that he had violated the safety rule requiring workers to access locomotives using a rectangular fiberglass bridge get across the two-foot gap between the locomotive’s running board and shop’s raised concrete floor.

“It was baloney. First, it wasn’t possible to use a crossover board there, and second, two other guys got on the locomotive the same way I did and no one said a word to them,” Giuliano said.

Despite assurances from managers that the violation was minor, three weeks later, Giuliano received notice of a disciplinary hearing for multiple violations of safety rules.

“In my 12 years as chairman of the local I have never seen someone disciplined for that violation,” Giuliano said.

The hearing held in late November, was presided over by a company manager who had earlier broken into the glass-covered IBEW bulletin board to rip down a copy of the letter. The manager served both as the prosecutor, introducing the evidence of Giuliano’s supposed infractions, as well as the judge, refusing to allow Giuliano to introduce evidence that he had not violated safety rules or question the two other members who weren’t punished.

“It was a sham,” he said. “I told them they were in violation of the FRSA. They didn’t care.”

An Uzi to a Knife Fight

Although the whistleblower protections were made law in 2007, Giuliano says he didn’t really know about them until recently and doesn’t know anyone else who has ever filed a complaint.

“Maybe I heard something before then, but I thought it didn’t have anything to do with me,” he said.

Then he heard Goetsch speak at the IBEW Railroad Department’s annual conference in 2012. There he heard about the whistleblower protections and another law –the 2008 Rail Safety Improvement Act-- which further expanded rail workers’ rights by prohibiting retaliation against workers who requested medical treatment or following doctor’s orders.

Goetsch also talked about a series of federal court rulings making it clear that judges and juries were broadly interpreting the law, routinely issuing large punitive damages awards and punishing companies that punished workers instead of protecting the public.

Giuliano said he remembers Goetsch saying having a law is useless until workers stand up.

“If you don’t know your rights or are scared to use them, you have no rights. Their strategy is to keep workers ignorant and scared,” Goetsch said. “This law lets us bring an Uzi to a knife fight, but for it to accomplish its purpose, it is up to us to use it.”

Giuliano joined the thousands of rail workers filing complaints with OSHA for unlawful retaliation. Since the first complaint was filed in 2007, more whistleblower complaints have been filed with OSHA from rail workers than any other industry.

‘They Couldn’t Believe a Company Would Have the Gall’

In the beginning, Goetsch said, OSHA administrators levied only modest fines against the companies.

“I don’t think they [OSHA] believed what we were telling them. They just couldn’t imagine it was true,” he said. “But now they understand, and the courts understand as well, and the penalties are growing.”

In recent years, punitive damages awards from first OSHA and now federal courts have risen from less than a $100,000 to more than 1million.

“These companies make billions of dollars each year and the fines they used were just a minor cost, no big deal,” Goetsch said. “These multimillion dollar awards are different. They have the companies’ attention and the attention of their shareholders as well.”

For Mann, the fines handed out have been a rewarding sign that a 100-year culture of retaliation is finally on the way out.

“There’s still a long way to go, but I think in five, maybe 10 years we will see that these laws will have transformed the industry,” Mann said.

OSHA inspectors are now reviewing Giuliano’s complaint. If they haven’t issued a final ruling by late this year, Giuliano will be able to bring suit against CSX in federal court. Appeals are possible, for OSHA or judicial decisions, and the companies have shown that they try to outlast and outspend workers by appealing and delaying every case as long as they can.

But Giuliano says he will not give up on this case. Since his suspension, many fewer members come to talk to him about problems or concerns they have, something that used to happen regularly.

“That dropped off after I was suspended. It shut people up. Maybe they figured I wouldn’t want to stick my neck out again or they thought I had bigger things to worry about,” he said. “That means this wasn’t just an attack on me, it was an attack on every union and union member here. There’s no way I give up on that.”

Workers CANNOT be retaliated against by employers for doing any of the following in good faith:

1. Reporting a hazardous safety condition to the company or state, federal or juridical authorities
2. Refusing to participate in the violation of safety rules or regulations
3. Refusing to authorize the use of equipment, track or structures because of safety or security concerns
4. Requesting medical treatment
5. Reporting any injury or illness, whether sustained on or off the job
6. Reporting security violations to the company or state, federal or judicial authorities
7. Reporting fraud or waste of public money designated for safety or security
8. Following a doctor’s treatment plan
9. Using sick leave

Retaliation is ANY punishment targeting workers for taking a protection action, even if they have another reason. That includes: 

1. Notification of a disciplinary hearing
2. Holding a disciplinary hearing
3. Termination
4. Suspension, demotion or reassignment
5. Blacklisting or failure to rehire
6. Denying overtime or benefits
7. Threats, intimidation or reprimands
8. Withholding bonuses or promotions
9. ANY discrimination against an employee due in whole or in part to good faith protected actions

What to Do if You Think You Have Been Retaliated Against

1. File a complaint with OSHA within 180 of days of FINDING OUT you have been retaliated against

   -- DO NOT WAIT FOR THE RESULTS OF DISCIPLINARY HEARINGS --

   A disciplinary hearing is retaliation. Waiting for a decision about the punishment might delay your complaint until after the 180 day deadline

2. The OSHA complaint form is at http://www.whistleblowers.gov/whistleblower_complaint.pdf

3. It is best to talk with your chairman and one of the recommended legal counsel listed on the IBEW Rail Department’s website (http://www.ibew.org/IBEW/departments/RailRoad/FELA_LegalCounsel0710.htm) before filing a whistleblower complaint with OSHA.

4. If the deadline is approaching, DO NOT DELAY: use OSHA’s online reporting site (https://www.osha.gov/whistleblower/WBComplaint.html) Complaints can be can be amended later with the assistance of legal counsel and IBEW assistance, but only if it is filed on time.

    

Home page photo by Flickr user JohnHGray used under a Creative Commons license.

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