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Working In These Times

Friday, Feb 14, 2014, 8:15 pm

Oil Boom Raises Safety Concerns for Whistleblower Railworker

BY Kari Lydersen

With trains transporting much of the oil from North Dakota's shale, some railroad workers say the law isn't doing enough to protect whistleblowers. (Ron Reiring / Wikimedia Commons)  

Hydraulic fracturing, or “fracking,” has triggered an oil boom in North Dakota: The relatively new technology has made vast reserves of oil previously locked up in the state's Bakken shale formations accessible to drillers. However, there aren’t enough pipelines in the region to transport this immense quantity of oil to other states to be refined into gasoline. So instead, companies have chosen to transport the highly flammable and toxic crude oil by railroad. This has led to some headline-grabbing disasters, including the explosion of a train carrying Bakken oil in Lac-Mégantic, Québec that killed 47 people in July 2013.

Because Bakken oil is more combustible and corrosive than traditional crude, the federal government has warned companies about the risks of shipping it by train. The industry has also been under public and Congressional pressure to develop new safety procedures.

In addition to instituting speed restrictions and rerouting trains around populated areas, railroad workers and their lawyers say the federal government should step up its efforts to combat what they call another serious threat to rail safety: the retaliation against whistleblowers by managers and executives in the industry.

As one of the biggest transporters of oil in the country, the Burlington Northern Santa Fe Corporation (BNSF) has been hugely impacted by the Bakken boom—which, some advocates say, could in turn be leading to increased struggles between railworkers and management.

One BNSF worker, Curtis Rookaird, has spent the last four years embroiled in a conflict that his lawyer, Bill Jungbauer, says began with Rookaird voicing safety concerns. What may at first appear a dispute between a conductor and his supervisor, Jungbauer says, is actually a symbol of much deeper and more troubling issues throughout the railroad and, by extension, the oil transport industry.

On Feb. 23, 2010, Rookaird was assigned to move tanker train cars—part of the vast network that carries crude oil from the Bakken all over the country—to different tracks in the Washington state BNSF rail yard where he worked. Rookaird set about doing tests on the cars’ brakes, a procedure required by federal law, he tells In These Times. (A federal investigator quoted in court proceedings last year agreed with this assessment.)

Rookaird was also checking for broken axles, damaged wheels or other problems, he tells In These Times—a necessary precaution, he says, because the cars had been sitting idle for four days.

Before Rookaird finished the brake tests, he says, his supervisor told him to stop and move on to another task. The tests were unnecessary at that moment and would be done by a relief crew later on, BNSF officials stated in federal proceedings later that year.

Rookaird refused to stop the tests, because he thought it was legally and ethically his responsibility to make sure they were done before he left the cars. He got into a verbal confrontation with his supervisor about the issue, and the supervisor asked him to leave. Though it was actually 8:02 p.m., Rookaird clocked out at 8:30 p.m. He had been working more than five hours, he told OSHA investigators later, and he figured he deserved credit for the daily paid break that he had yet to take.

A month later, Rookaird was fired over the incident. He “refused to do his assigned tasks ... and falsely reported the amount of time he worked,” BNSF spokesman Steven Forsberg tells In These Times. But Rookaird has a different view of the situation. 

“I was told someone will test [the cars], someone else will inspect them. But I am not going to leave not knowing what I left," Rookaird maintains. "[If] you have tank cars there with residue in them, it could be just as dangerous as tank cars that are loaded. When you set up or take off cars you have to check them.”

“If you’re hauling oil and other hazardous materials, a simple little derailment can cause a major explosion,” Jungbauer explains. Although the cars Rookaird was checking weren’t full, he argues that “it’s only a matter of time, if employees can’t do their jobs without fear of harassment and intimidation.”

In an April 2013 letter to the Occupational Safety and Health Administration (OSHA), BNSF wrote that they suspected Rookaird had deliberately tried to reduce efficiency by introducing what BNSF called "unnecessary" tasks—such as the brake tests. As BNSF attorney Andrea Hyatt noted in the letter, the company had recently implemented schedule changes that eliminated numerous overtime hours that had been earning Rookaird an additional $800 a week. Hyatt said Rookaird was engaged in an intentional work slow-down meant to protest the schedule change and collect overtime pay.

That was not his motive, Rookaird tells In These Times. Rather, he felt he would be breaking the law and acting irresponsibly if he did not do the brake tests. And he believes he was retaliated against for drawing attention to a safety hazard.

In July 2010, Rookaird filed a complaint with the federal government accusing BNSF of retaliation. In a process outlined by the Federal Railway Act, an arbitration panel considered his case and ruled in BNSF’s favor in July 2011. But then on Sept. 18, 2013, OSHA issued a detailed report supporting Rookaird and ordering BNSF to pay him more than $110,000 in compensatory damages and $25,000 in punitive damages and back pay in addition to rehiring him.

Five months later, however, Rookaird says he's still neither been paid nor rehired. BNSF tells In These Times the company does not plan to reinstate him until a federal judge has reviewed the case. The company has already appealed OSHA’s decision in federal court, Forsberg says, and a hearing is scheduled for March.

Meanwhile, Rookaird is in the process of filing his own lawsuit in federal court to try to force BNSF to follow OSHA’s orders, Jungbauer says.

After losing his railroad job, Rookaird worked for a year and a half driving a truck in oil country in North Dakota, far away from his family. Now he is driving a fuel truck in Washington, earning much less than he had at BNSF. Rookaird and his wife Kelly say their house is in foreclosure proceedings and they are struggling to support the two nine-year-old boys they adopted from Russia. Kelly says she’s unable to afford necessary eye surgery. They can see firsthand why many railroad workers could be dissuaded from coming forward with complaints. 

“You feel like you should not report these safety problems, even injuries, because you’ll end up unemployed, driven out of your home, homeless,” says Rookaird.

BNSF’s Forsberg says, however, that the company “has specific policies prohibiting retaliation against whistleblowers.”

“Employees are both encouraged and required to report safety concerns,” Forsberg adds. “BNSF provides them with multiple means to do so, including calling a 24-hour employee hotline, turning in a simple form, or contacting a Division Manager of Safety or a local, union Safety Assistant. An employee can make any of these reports anonymously. Designated personnel investigate all safety concerns and take appropriate action until the issue has been resolved.”

But Jungbauer, who testified before Congress regarding the Federal Railroad Safety Act, which was passed in 1994 and updated in 2007 to protect railroad whistleblowers, says Rookaird’s story and others like it are symptoms of a much larger threat to workers and the general public. He feels like Rookaird’s case is a prime example of how the law doesn’t do enough to protect employees.

“This story is much bigger than some local managers being unfair to some local people,” he says. “There’s a system-wide attack on workers and workers’ rights. If a company is going to be so vile against its own workers in way they go after them, what does that mean for the public?”

“I’m glad there’s all this oil in North Dakota, but if they’re going to ship it around the country on BNSF tracks and if employees can’t report safety concerns without being retaliated against, I’m worried,” he continues. “And the country should be worried.”

Kari Lydersen, an In These Times contributing editor, is a Chicago-based journalist and instructor who currently works at Northwestern University. Her work has appeared in the New York Times, the Washington Post, the Chicago Reader and The Progressive, among other publications. Her most recent book is Mayor 1%: Rahm Emanuel and the Rise of Chicago's 99 Percent. She is also the co-author of Shoot an Iraqi: Art, Life and Resistance Under the Gun and the author of Revolt on Goose Island: The Chicago Factory Takeover, and What it Says About the Economic Crisis. Look for an updated reissue of Revolt on Goose Island in 2014. In 2011, she was awarded a Studs Terkel Community Media Award for her work. She can be reached at kari.lydersen@gmail.com.

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