The following is Part II of Frank's article on the importance of coming forward with information which could help a fellow railroader who was injured on the job. (Read Part I)
The railroad supervisor may not like the fact that you are reporting an unsafe condition, but you will have a paper trail to back you up. In this way, no matter how many supervisors ask you about it, you can stick to the truth and be consistent in telling about what you did see -- without fear of discipline. You also will have done a real service for your injured fellow employee; the same service you’d like him to do for you.
Most railroads have rules which require witnesses to give statements to the Company if a fellow employee is injured. The only “witnessing” you may have done was being a member of the same crew, or merely working in the same area, where the injury occurred. You must give a statement or risk being charged with insubordination.
Railroads like to charge you with violation of the insubordination rule because it’s easy to prove in a disciplinary investigation. The supervisor testifies that he ordered you to give a statement (or whatever the charge). If you didn’t provide the statement, the burden shifts to you to show that your refusal was justified. That can be very difficult and you may have to wait for an arbitrator to resolve the issue.
Of course, you can always call Hoey & Farina for advice before you give a statement. What the railroad is really looking for is for someone to contradict the injured employee’s account of what happened and make him look like a liar. If they can’t make the injured worker look like a liar, the railroad’s goal is to get everybody who was in the area of the injury to state that they don’t know anything about it or what may have caused it. In this way, the railroad hopes to eliminate the likelihood of these employees coming forward with relevant information at a later date. The railroad’s questions may not be asked in such a way as to uncover information unfavorable to it; that’s why it’s important to get legal advice before giving a statement. You may not realize that what you do know is legally significant and must be included in the statement even if the railroad doesn’t directly ask about it.
The railroad cannot discipline you for talking to a lawyer. Section 60 of the FELA provides in part that “…whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information” (facts incident to the injury or death of any employee) “or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information” can be subject to criminal penalties. This means that you have the protection of Federal Law if you talk to a lawyer about what you know.
An injured railroad employee often cannot effectively protect himself at the time he suffers a work injury. Recently, I talked to a seriously injured railroader who had to wait while the railroad brought in eight supervisors to investigate the occurrence. (There may be a Federal Rule violation here but that’s a topic for another day.) This “gang” approach is not that unusual. It’s very difficult for a person who is in pain, concerned about getting medical treatment, afraid for their future and having difficulty concentrating, to be complete and accurate when they answer questions asked by the army of “investigators”. That’s why it’s absolutely necessary for fellow employees to reject the “I don’t want to be involved” attitude that so many people seem to live by today.
We know it is sometimes very difficult to do the right thing for someone else when your own interests might be adversely affected. But remember the golden rule. It most definitely applies to these situations. Someone who is injured should not have their case adversely affected because a co-worker did not come forward with information which would have helped. While you may say to yourself “I didn’t see anything,” you may well have seen more than you realize. Don’t you be the person who takes the easy way out and say, “I didn’t see anything.”
You can call us for free advice on this or any other FELA issue any time. Your call will be treated with complete confidentiality.