Including Whistleblower Protections
Straight Track topics are often developed by the questions asked at union meetings we attend. A newly elected local chairman recently asked what he should do if one of his members called and told him he had suffered an on-the-job injury. I answered that he, the local chairman, is the first line of help, information and protection for the injured railroader. I also offered several important suggestions which I share with you now.
If the injury just occurred, the local chairman should be certain that appropriate medical attention is being provided. If the injured railroader has not been taken to the hospital or emergency room, make sure there is no undue delay in getting there. It is a violation of Federal Regulations for the railroad to refuse, or unreasonably delay, medical care. The railroad cannot require that an injury report form be completed or wait until a particular carrier official arrive onto the property before the injured man is taken for treatment when the injury is severe or the injured man is in a great deal of pain.
You should be prepared to go to the hospital if the injury is serious or the man is not able to look after his own interests because of pain medication or the nature of the injury. Why? In an effort to keep the injury from being reportable, the railroad officers may try to influence the care, prescribed medication and recommended treatment. The railroad may also try to take advantage of the injured employee’s “confused” state of mind to obtain inconsistent statements as to how the work injury occurred. Further, when the railroader is released from the hospital the railroad officials may have the railroader go back to the scene of the work injury or reenact it. You should be there to make sure the railroad does not get away with this tactic.
RAILROAD SUPERVISORS IN THE ER
While the railroad has the right to know what caused the injury, railroad officers often use this opportunity to aggressively interrogate the injured railroader while his concentration is diminished due to pain or the influence of pain medication. The railroad’s strategy is to get information that will establish that the man’s own conduct caused or contributed to the injury. When an injured railroad worker is concentrating on getting relief from his pain and getting proper medical attention, his focus is not on all of the details surrounding his work injury. He is in no condition to be cross examined by anyone from the railroad. It is your responsibility to make sure that his supervisors do not take advantage of his vulnerability at this crucial time.
If the work injury is so serious as to require hospitalization, it may be necessary for you to prevent the railroad officials from going into the hospital room until a family member arrives. You have every right to tell the hospital personnel that this is not a workers’ compensation injury and that company representatives have no right to intrude on the railroader’s privacy without his or his family’s permission. You should be prepared to assist the family with any information or advice that is necessary to protect the injured member, including getting legal advice immediately.
Fortunately, in most cases the work injury is not life threatening or so serious as to require such drastic measures. However, as local chairman you must be prepared to act. Typically, helping the injured railroader with the work injury report and preventing his railroad supervisors from intimidating him is all that is necessary. If you cannot be physically present when he fills out the work injury report, discuss with him how the injury occurred and identify the unsafe condition or defective equipment which caused his work injury. These facts must be reported on the form.
To help you meet your responsibilities, call Hoey & Farina and discuss the situation with us. The injured railroader should do the same. Only when we know the details surrounding the work injury can we provide specific advice as to how to proceed. Your railroad union has designated Hoey & Farina as Legal Counsel so that you have a source of reliable information which you and your members can utilize in the event of a work injury. The railroad has its staff of lawyers to advise its officials. Hoey & Farina is available 24 hours to serve you.
RIGHT TO RECOMMEND FELA DESIGNATED LEGAL COUNSEL
As a railroad union officer, you have the right to recommend FELA Designated Legal Counsel to your members. This right is protected by case decisions handed down by the United States Supreme Court. The railroad cannot discipline you for advising your members to seek Designated Legal Counsel. The sooner Hoey & Farina provides advice to your injured member, the greater the likelihood that the railroad will be prevented from taking advantage of the injured railroader.
FEDERAL RAIL SAFETY ACT – 49 U.S.C. Section 20109
In 2007, Congress provided railroaders with an additional right. Section 20109 of the Federal Rail Safety Act is sometime known as the “Whistleblower Act.” This section makes it illegal for the railroad to retaliate or discipline a railroader for reporting an unsafe condition he finds at work or for reporting an on-the-job injury. Inasmuch as injuries are usually the result of a railroad created condition, when a railroader files an injury report identifying unsafe conditions or procedures for the injury, Section 20109 protection begins. OSHA, not the Federal Railroad Administration, has jurisdiction under this law, thus the complaints are filed with and investigated by that agency.
The most important thing to remember is that the complaint to OSHA must be filed within 180 days of the incident (filing of the injury report) or the claim may be lost. It could be held that the awarding of discipline is the date the 180 days begins to run but don’t take that chance. You will need legal help here. Call Hoey & Farina for advice.
This section also provides for the award of attorneys fees and punitive damages in addition to wage loss and return to service. The discipline can also be removed from the member’s personnel file. This is an important addition to the bundle of rights your members have so you should be aware of it and be able to discuss it with your member. These rights also apply to non-injury ‘whistle blowing issues.’