Blood on the Tracks

Railway whistleblowers get some federal protection at last.

Kari Lydersen

Railway worker Steve Desavouret (L) says he was fired for whistleblowing. (Courtesy of Steve Desavouret)

The 19th-cen­tu­ry rail­road boom enabled not only the set­tling of the Amer­i­can West, the indus­tri­al rev­o­lu­tion and the growth of Amer­i­can cities, but also the cre­ation of a new class of cor­po­rate own­ers. The rail­road mag­nates of the 19th and ear­ly 20th cen­turies amassed such wealth and wield­ed such polit­i­cal clout that they seemed almost omnipo­tent. The 1886 U.S. Supreme Court case San­ta Clara Coun­ty vs. South­ern Pacif­ic Rail­road Com­pa­ny is known as the first sig­nif­i­cant rul­ing to grant cor­po­ra­tions the same con­sti­tu­tion­al equal rights pro­tec­tions as human beings.

‘Every time they fire Joe Blow who got hurt getting off an engine, people think, “Oh my god if I ever get hurt I better just limp home, lick my wounds, go to a hospital, just don’t report it.” ’

In many ways, that sense of over­whelm­ing cor­po­rate pow­er has endured to the present, at least in major rail­road com­pa­nies’ rela­tions with their employ­ees. Rail­road work­ers and their attor­neys say — and fed­er­al courts and gov­ern­ment reg­u­la­tors have agreed — that for decades there has been an endem­ic prob­lem of retal­i­a­tion by rail­road com­pa­nies against employ­ees who are injured on the job or who speak out about safe­ty haz­ards. Often the two issues go togeth­er: Injury inves­ti­ga­tions bring safe­ty haz­ards to light.

His­tor­i­cal­ly, the rail­road indus­try had a para­mil­i­tary men­tal­i­ty,” says Char­lie Goetsch, an attor­ney who spe­cial­izes in rep­re­sent­ing rail­road work­ers. In the army, if you refuse to obey an order, you’re shot or court-mar­tialed. You do what I say or you’re fired or I make your life mis­er­able. The work­ers had no pow­er, no recourse to stand up against that. Rail­road unions have been a pow­er­ful force, but they have had no abil­i­ty to strike back when rail man­age­ment retal­i­at­ed against an indi­vid­ual employ­ee for hav­ing the gall to report a safe­ty haz­ard or a result­ing injury. That con­tin­ued on into the 21st century.”

But the indus­try may be in the ear­ly stages of a sea change, thanks to 2007 leg­is­la­tion pro­tect­ing rail­road work­ers that has been strong­ly backed by fed­er­al court rul­ings this year and com­ple­ment­ed by pol­i­cy changes and vol­un­tary agree­ments involv­ing the Occu­pa­tion­al Safe­ty and Health Admin­is­tra­tion (OSHA).

Blam­ing the victim

Rail­road work­ers and attor­neys say the rail­road indus­try pro­vides a prime exam­ple of a trend that has become promi­nent across mul­ti­ple indus­tries, from man­u­fac­tur­ing to pack­age deliv­ery. That is the con­cept of behav­ior-based safe­ty,” where­in all acci­dents and injuries are assumed to be avoid­able, and thus the fault of the work­er. This approach is self-serv­ing for employ­ers in a num­ber of ways. If the work­er is the­o­ret­i­cal­ly to blame, it is eas­i­er (though not nec­es­sar­i­ly legal) for the com­pa­ny to refuse to grant work­ers’ com­pen­sa­tion or oth­er ben­e­fits. And the sup­posed mis­con­duct on the worker’s part can also be used as jus­ti­fi­ca­tion for fir­ing, so that employ­ers don’t have to deal with injured workers.

Ron Kaminkow, gen­er­al sec­re­tary of the group Rail­road Work­ers Unit­ed (RWU), which includes mem­bers of sev­er­al rail­road unions, explains: If I fell off a loco­mo­tive, it’s in the inter­est of the rail car­ri­er to show I was care­less, or on drugs or alco­hol. So when it goes to court, I have to prove that the car­ri­er had cre­at­ed an unsafe work­place, and the car­ri­er wants to prove, No, we’re not liable — this work­er didn’t fol­low these rules.’ We have a mil­lion rules for every­thing,” so it’s easy to find minor vio­la­tions, says Kaminkow.

This approach cre­ates a cli­mate where work­ers are far less like­ly to report injuries since they sus­pect they will be blamed, dis­ci­plined or fired. That serves employ­ers, who are man­dat­ed to pass on injury reports to the Fed­er­al Rail­road Admin­is­tra­tion (FRA) — the U.S. agency that enforces rail safety.

They want those num­bers to be low,” says Kaminkow. “[So] in effect they are intim­i­dat­ing the rest of the work­force. Every time they fire Joe Blow who got hurt get­ting off an engine, peo­ple think, Oh my god if I ever get hurt I bet­ter just limp home, lick my wounds, go to a hos­pi­tal, just don’t report it.’ ”

Kaminkow’s depic­tion is borne out by a 2007 report by the U.S. House Com­mit­tee on Trans­porta­tion and Infra­struc­ture, which not­ed, The under­re­port­ing of rail­road employ­ee injuries has long been a par­tic­u­lar problem.”

The report also cit­ed a 2005 Trans­porta­tion Depart­ment Inspec­tor General’s find­ing that the FRA inves­ti­gat­ed less than two-tenths of 1 per­cent of report­ed acci­dents and inci­dents. It’s absurd,” says a West Coast rail yard work­er who was fired over what he says were trumped-up charges after report­ing a safe­ty haz­ard. Since his case is pend­ing, he didn’t want his name used.

Are all acci­dents pre­ventable?” he asks. Look it up in the dic­tio­nary, pal! That’s nuts. Human beings will be involved in acci­dents, espe­cial­ly in an indus­try as dan­ger­ous as railroads.”

Seat­tle-based attor­ney George Thorn­ton fre­quent­ly rep­re­sents rail­road work­ers. He says the com­pa­nies are espe­cial­ly like­ly to fire or dis­ci­pline peo­ple who are vocal about safe­ty com­plaints, who won’t just go along and get along.” Instead of blam­ing work­ers for their injuries, he says, com­pa­nies should actu­al­ly spend mon­ey to address safe­ty prob­lems that lead to accidents.

The Asso­ci­a­tion of Amer­i­can Rail­roads, an indus­try group, did not respond to inter­view requests for this sto­ry. An OSHA spokesper­son did not respond to ques­tions or pro­vide request­ed sta­tis­tics on trends in rail­road work­place injuries and whistle­blow­er complaints.

Wit­ness protection

The case of New Jer­sey rail­road work­er Antho­ny Arau­jo exhibits both the sys­temic prob­lems with the indus­try and the hope offered by Con­gres­sion­al amend­ments made to the Fed­er­al Rail­road Safe­ty Act (FRSA) in 2007.

On Feb­ru­ary 25, 2008, Arau­jo was work­ing as a con­duc­tor and flag­man on a com­muter rail track when he saw some­thing that would change his life. A con­struc­tion work­er was fatal­ly elec­tro­cut­ed: a human being in flames, burn­ing to his death,” as Arau­jo describes it today. Arau­jo went to a coun­selor employed by the rail­road com­pa­ny, he said, and was referred to a trau­ma spe­cial­ist who found he was suf­fer­ing post-trau­mat­ic stress symp­toms and would need time off from work.

After receiv­ing the specialist’s report, New Jer­sey Tran­sit Rail Oper­a­tions charged Arau­jo with vio­lat­ing com­pa­ny elec­tri­cal rules, accord­ing to Arau­jo, and to doc­u­ments from OSHA and the fed­er­al court pro­ceed­ings that result­ed. (A spokesper­son for New Jer­sey Tran­sit declined to com­ment for this story.)

The com­pa­ny ceased pay­ing Araujo’s wages, and he sub­se­quent­ly fell into debt, los­ing his car and his home to fore­clo­sure and hav­ing his cred­it ruined. And more impor­tant­ly, Arau­jo said, I lost my job, my respect, my relationships.”

Arau­jo felt — and OSHA agreed — that he was blamed and pun­ished for his own injury. He also sees him­self as a whistle­blow­er, since in the inves­ti­ga­tion of the con­struc­tion worker’s death he described what he saw as safe­ty haz­ards and prob­lems with com­pa­ny process.

Arau­jo filed a com­plaint against New Jer­sey Tran­sit with OSHA’s whistle­blow­er pro­tec­tion office, say­ing that he had not been inves­ti­gat­ed or charged with a rules vio­la­tion until after report­ing his own work-relat­ed injury. OSHA ruled in Araujo’s favor and grant­ed him more than half a mil­lion dol­lars, includ­ing attor­neys’ fees and lost wages for the year he was out of work. He now works for New Jer­sey Tran­sit again.

New Jer­sey Tran­sit appealed OSHA’s deci­sion. But Arau­jo had addi­tion­al recourse, thanks to the 2007 FRSA amendments.

That leg­is­la­tion expands pro­tec­tions for rail­road work­ers under the 1926 Rail­way Labor Act and grants the gov­ern­ment much greater pow­er to inter­vene in rail­road whistle­blow­er cas­es. Indi­vid­ual work­ers like Arau­jo are now allowed to bring law­suits in fed­er­al court if they have not got­ten results through the admin­is­tra­tive process.

Since the 2007 FRSA, whistle­blow­er com­plaints filed under the act have risen steadi­ly, from 45 in 2008 to 353 in 2012. The num­ber of set­tle­ments has accord­ing­ly gone up, although the great major­i­ty of claims (more than 80 per­cent in 2012) are either dis­missed by the agency or with­drawn by the employee.

The 2007 FRSA also cre­at­ed oth­er new pro­tec­tions for work­ers, includ­ing an explic­it demand that rail­road com­pa­nies may not dis­charge, demote, sus­pend, rep­ri­mand, or in any oth­er way dis­crim­i­nate against an employ­ee” for pro­tect­ed activ­i­ties, includ­ing report­ing safe­ty haz­ards or a work­place injury or ill­ness. The 2007 FRSA allows OSHA and fed­er­al courts to award work­ers com­pen­sato­ry dam­ages, lost wages, job rein­state­ment, attor­neys’ fees and puni­tive dam­ages of up to $250,000 for violations.

So Arau­jo appealed to fed­er­al court and, this Feb­ru­ary, received a rul­ing that legal advo­cates see as clar­i­fy­ing and strength­en­ing the 2007 FRSA. The court cit­ed the long his­to­ry of retal­i­a­tion in the rail­road indus­try: The leg­isla­tive his­to­ry shows that Con­gress was con­cerned that some rail­road super­vi­sors intim­i­dat­ed employ­ees from report­ing injuries to the FRA, in part, because their com­pen­sa­tion depend­ed on low num­bers of FRA reportable injuries with­in their super­vi­so­ry area.”

Not­ing that peo­ple in Araujo’s posi­tion were nev­er dis­ci­plined for the infrac­tion of which he was accused, the appeals court over­turned the low­er court’s ver­dict that the company’s actions against Arau­jo were not retal­ia­to­ry. But the high­er court didn’t decide explic­it­ly in Araujo’s favor, instead kick­ing the case back to fed­er­al dis­trict court.

How­ev­er, since the appeals court empha­sized Congress’s intent in strength­en­ing rail­road work­er pro­tec­tions with the 2007 FRSA amend­ments, it was seen as an impor­tant vic­to­ry for rail­road workers.

Araujo’s attor­ney, Goetsch, wrote on his blog: All rail­road employ­ees should take heart know­ing that Con­gress and now the fed­er­al courts have declared that the FRSA must be lib­er­al­ly inter­pret­ed and applied so as to ful­ly pro­tect all employ­ees who report injuries.”

The fed­er­al gov­ern­ment had already sent sig­nals that OSHA was tak­ing the law seri­ous­ly. In July 2012, the Fed­er­al Rail­road Admin­is­tra­tion and the U.S. Depart­ment of Trans­porta­tion signed a mem­o­ran­dum of agree­ment with OSHA elab­o­rat­ing on how the law would be enforced. The agree­ment laid the ground­work for increased coop­er­a­tion between the rail admin­is­tra­tion and OSHA, which rail­road work­ers think will mean more pro-active enforce­ment of the FRSA.

Mean­while, in Jan­u­ary OSHA announced that BNSF, the rail­road major­i­ty-owned by War­ren Buf­fett, had signed a vol­un­tary agree­ment regard­ing alleged retal­i­a­tion against work­ers injured on the job. The agree­ment includ­ed set­tle­ment offers (of undis­closed amounts) to 36 work­ers with pend­ing whistle­blow­er claims and the revi­sion of BNSF poli­cies regard­ing injuries and whistle­blow­er complaints.

In a state­ment pro­vid­ed by BNSF, Mark Schulze, vice pres­i­dent for safe­ty, train­ing and oper­a­tions sup­port, said: We are pleased to have vol­un­tar­i­ly worked with OSHA in a coop­er­a­tive and con­struc­tive man­ner to have clar­i­fied issues and look for­ward to con­tin­u­ing to work with our employ­ees and the appro­pri­ate safe­ty reg­u­la­tors to achieve our goal of a work­place free of acci­dents and injuries.

These poli­cies will con­tin­ue to be valu­able tools to hold employ­ees account­able for rules com­pli­ance, focused on reduc­ing expo­sure and elim­i­nat­ing at-risk behaviors.”

End­less appeals

Despite the 2007 FRSA and oth­er pos­i­tive devel­op­ments, rail­road work­ers and attor­neys say there are still obsta­cles to work­ers feel­ing safe from retal­i­a­tion when they report injuries or safe­ty haz­ards. For one thing, a work­er has only 180 days (six months) from the inci­dent to file a com­plaint with OSHA’s whistle­blow­er office. Some work­ers and attor­neys say this time peri­od is too short, since it often takes longer for work­ers to real­ize that they have legal recourse.

Rail­road com­pa­nies also have a right to appeal OSHA deci­sions to a fed­er­al admin­is­tra­tive law judge. Attor­neys and work­ers say major rail­road com­pa­nies make it a prac­tice to do so. The [2007] law is good and the Depart­ment of Labor is start­ing to do some­thing about it,” said Thorn­ton. But the com­pa­nies are engag­ing in scorched-earth lit­i­ga­tion tac­tics — they refuse to pay any­thing, delay as much as pos­si­ble, appeal every­thing, they fight every step of the way.”

The rail­roads starve peo­ple out — there is an arbi­tra­tion sys­tem to go through, but it works in such a slow way that no work­er in a nor­mal sit­u­a­tion can afford to wait until the whole thing is over,” said the West Coast rail­road work­er who didn’t want his name used.

Steve Desavouret, a Chica­go-area rail­road work­er fired by Cana­di­an Nation­al Rail­way Com­pa­ny in rela­tion to an inci­dent involv­ing a work­place injury, feels like the rail­road tried to take my life away” by appeal­ing an OSHA rul­ing that he should get his job back.

I’ve had some Team­ster union activists sit­ting with their mouths open at some of the things rail boss­es do,” he says, things that UPS” — which has been tar­get­ed by a nation­al Team­sters cam­paign around alleged blame-the-work­er poli­cies — would not dare try to pull off.”

Pub­lic outrage

Since the 2007 FRSA was passed, increas­ing num­bers of rail­road safe­ty cas­es have begun to reach the fed­er­al courts. Attor­ney Goetsch says that jurors in these cas­es are often aghast at the rail­road industry’s practices.

With­in the indus­try this is a giv­en, it’s the way it’s always been,” said Goetsch. But peo­ple out­side the rail­road indus­try — the pub­lic — come in off the street, sit down in a jury, start learn­ing about the rail­road cul­ture of retal­i­a­tion and ignor­ing their own safe­ty stan­dards, and they become out­raged. They don’t under­stand how any employ­er could fire some­one for report­ing an injury that results from a haz­ardous con­di­tion. Mem­bers of the pub­lic get that imme­di­ate­ly, because it seems so bizarre and so wrong.”

Andrew Barati worked as a track­man for Metro-North, a New York/​Connecticut com­muter rail, when in April 2008 his left big toe was crushed as he low­ered the load from a jack. The com­pa­ny dis­ci­plined and then fired him, say­ing the acci­dent was his fault. Barati took his case to fed­er­al court and in March 2012 a jury decid­ed that neg­li­gence by the com­pa­ny was in part respon­si­ble for Barati’s injury. The jury award­ed him $1 mil­lion in puni­tive dam­ages for his retal­ia­to­ry fir­ing — more than the amount actu­al­ly allowed under the FRSA. (A spokesper­son for Metro-North declined to comment.)

Goetsch said that the jury’s out­sized award was an exam­ple of just how out­raged many reg­u­lar Amer­i­cans are when they get a win­dow into the inner work­ings of the rail­road industry.

Many Amer­i­cans see rail­road safe­ty — and by exten­sion, labor issues — as affect­ing the larg­er soci­ety, too, since rail acci­dents and spills can be dev­as­tat­ing for large num­bers of people.

Goetsch hopes that grow­ing pub­lic aware­ness will con­tribute to the will­ing­ness of fed­er­al offi­cials to stand up for rail­road work­ers, of Con­gress to sup­port leg­isla­tive pro­tec­tions and of work­ers them­selves to come forward.

I like to think of it as a bat­tle­ship,” said Goetsch. A bat­tle­ship doesn’t turn on a dime. We’re in the mid­dle-ear­ly stages of tak­ing the wheel and turn­ing it and hold­ing it down. The rail­roads are start­ing to change course, the bat­tle­ship is start­ing to move, but it’s not there yet by any stretch.”

Arau­jo knows that he still has a long road ahead.

Even if I have a jury tri­al next year, it could still be 10 years before I have a final res­o­lu­tion,” Arau­jo said. A lot of peo­ple see what hap­pened to me and think, I don’t want to go through that.’ But I’m proud to be stand­ing up. It’s not about me. It’s about chang­ing this cul­ture of retal­i­a­tion … so we can sur­vive, stand up, make a dif­fer­ence, so it’s not just busi­ness as usu­al anymore.”

Kari Lyder­sen is a Chica­go-based reporter, author and jour­nal­ism instruc­tor, lead­ing the Social Jus­tice & Inves­tiga­tive spe­cial­iza­tion in the grad­u­ate pro­gram at North­west­ern Uni­ver­si­ty. She is the author of May­or 1%: Rahm Emanuel and the Rise of Chicago’s 99%.
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