Train Law Blog : Railroad Injury Lawyer & Attorney : Cahill Goetsch & Perry Law Firm : Railway Worker Injuries & Accidents

Joe Coleman from Seattle asks whether union reps can be present when a worker gives a statement to a railroad claims agent. The real question is, why would a railroad worker NOT have his union rep present?

No way can there be ever be a level playing field between a claim agent and an injured worker. Think about it. A claim agent is a manager whose only job is to save the railroad money. He is a professional trained to ask leading questions that steer the worker into incriminating answers that will insulate the railroad from liability. The injured worker, on the other hand, finds himself suddenly thrust into a bewildering process with no idea how to protect his legal interests.

Always remember, you don't have to give a statement to a claim agent. If a claim agent asks you to come in and give a statement, ask the claim agent if your union rep can be there with you. If the answer is no, that is all the proof of unfairness you need, and just walk away.

Before giving any statement, it is always best to at least consult with an experienced FELA attorney who can advise you how to protect your long term interests. But at the very least, talk to an experienced union rep who can be there to keep the claim agent honest.

So don't be fooled by the "friendly" claim agent who just "wants to help" and, by the way, just needs to take a "short statement on the record" before he will process your medical bills and so on. He will smile and joke and take your statement, and then months or years later when you go to settle your claim, he will pull out your statement and say, "Gee, what do you want from us? You yourself stated it was just an accident that could not have been avoided. You're lucky we even paid your medical bills."

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Here's a true story that should give any railroad supervisor pause. The fact is, you never know where an act of retaliation will lead. After you commit an act of retaliation, you simply can not control how it reverberates in people's lives. And while all retaliation hurts, it can kill as well. It's like a felony-murder: when in the course of a robbery someone gets unforseeably killed, the robber is still guilty of murder even though he never intended anyone to die.

Case in point. A notorious Metro North supervisor with a long history of abusing his authority decided to humiliate one of his electricians in front of his gang. Why? Because the worker was taking FMLA leave to be with his wife for the birth of their baby and to help her during the weeks thereafter.

The electrician complained to Metro North's Workforce Diversity Department, who commenced an investigation. In response, the supervisor proceeded to retaliate against the worker by improperly abolishing his job and then refusing to allow him to transfer into a different district, trapping him. The public humiliation and the cumulative abuse was the last straw that broke the worker's emotional equilibrium. He felt his choice was to return to work and "go postal" when he saw the supervisor again, or to give up his railroad career. He chose to avoid violence and resign (the law calls that a "constructive discharge" because the railroad made his work life so intolerable it forced his resignation).

The problem is, he then lost medical coverage for his wife and baby, he lost his regular income and pension, and he struggled to replace the wages and self-respect he earned in his railroad job. Metro North's Workforce Diversity Office completed its investigation of the supervisor, and concluded the supervisor was guilty and deserving of severe discipline. But what happened? His managers refused to accept Metro North's own ruling, and watered down the discipline so it was meaningless.

Several weeks later, the worker put a bullet in his head. A life destroyed, a productive career lost, a family devastated, a baby girl who will never know the love of her father. And all because the Railroad's managers reflexively protect their abusive supervisors.

Of course, when sued for wrongful death and FMLA violations Metro North tried to wriggle out from its liability, but the federal judge has refused to let the Railroad off the hook. Metro North now will have to face a jury, who will decide under the Federal Employers' Liability Act (FELA) whether the Railroad's conduct played any part at all in causing the worker's death. Let us all pray that, for the sake of his widow and baby girl, justice will prevail.

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Rail union rep Joe Coleman from Seattle has a question about the FELA liability of railroads who contract out work. His General Foreman recently hired subcontractors to band freight car loads that had shifted due to broken banding, and when challenged tried to justify it by arguing that since the subcontractors are self-insured, the railroad will save on FELA liability.

It ain't necessarily so. Federal Employers Liability Act liability cannot be contractually waived, 45 U.S.C. 55, and the Supreme Court holds that "non-railroad" employees are nevertheless covered by the FELA if they are (1) a borrowed servant of the railroad, (2) a servant acting for two masters simultaneously, or (3) a subservant of a company that was in turn a servant of the railroad. Kelly v Southern Pacific Co 419 US 318, 324 (1974). When determining whether a person is a borrowed servant or dual servant under the FELA, courts look at several factors: (1) who exercised significant supervisory control over the worker at the time of the injury; (2) who selected the worker; and (3) who paid his or her wages. The overriding consideration is whether the railroad had control of (or the right to control) the worker in the performance of his duties, and where evidence of control of the employee's activities is in dispute, the case must go to a jury. Vanskike v ACF Indus. Inc., 665 F.2d 188, 198 (8th Cir, 1981).

So don't let managers bluff you with such lame justifications for violating your contracting out rules----railroad laws such as the FELA do not disappear merely because a railroad says so. Employees of railroad subcontractors can still sue the railroad under the FELA. And by the way, railroad contractors also are covered by the anti-retaliation provisions of the Federal Rail Safety Act. Under the FRSA, a railroad subcontractor cannot retaliate against its own employees who report safety violations or personal injuries.

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 Some people just don't get it. CSX Transportation managers definitely fall into that group. In a lengthy Investigative Report released in March of 2008, the Federal Railroad Administration put CSX on notice that its management culture of harassment and intimidation intended to dissuade employees from reporting injuries had to stop. In response, CSXT made numerous representations to the FRA promising to change its behavior.

But guess what? The complaints of harassment and intimidation just kept flowing in to the FRA as if nothing had happened. By January of 2009, the FRA had had enough. On January 16th, the Acting Administrator of the FRA, Clifford C. Eby, issued a blistering three page letter to CSX Transportation President and Chief Executive Michael Ward. Eby pointed to the ongoing complaints despite the CSX's list of promises, and concluded: "It is clear that CSXT has failed to adequately address its culture of harassment and intimidation. . . . CSXT has not yet fulfilled its commitments made to FRA regarding harassment and intimidation. . . . the evidence shows that CSXT's response has been inadequate. In order to truly prevent any more instances of intimidation, CSXT must put forth a sustained good-faith effort to change its culture." For the FRA 01/16/09 letter, click here .

Clearly, the FRA's patience has run out. If CSX doesn't change its hostile management culture and change it quick, the FRA will step in and slap a compliance order on the CSX, putting the daily actions of CSX managers and supervisors under FRA oversight.

Meanwhile, whenever a CSX manager intimidates or retaliates against an injured employee, the new amendments to the Federal Railroad Safety Act allow that employee to file a FRSA retaliation complaint with OSHA's Whistleblower Office. And if OSHA does not promptly resolve the complaint, the employee can jump into federal court and have a jury award punitive damages of up to $250,000 against CSX. If the number of FRSA complaints coming out of places like CSX's West Springfield Yard in Massachusetts is any indication, federal juries are going to be very, very busy awarding punitive damages against railroads like CSX.

So while changing CSX's hostile management culture may be a tough nut to crack, the FRA and FRSA are like the pincer arms of a nutcracker, and CSX's nut is now caught firmly in that nutcracker's grip. With the increasing pressure being exerted by the FRA and the FRSA, it is only a matter of time before CSX's nut cracks wide open. 

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Our hearts go out to the family and friends of Metro-North Railroad worker Kevin McGrath, whose life came to an end on the tracks just west of Rye Station while he was on duty January 9th. Just as every human life is unique, each fatal railroad accident like this is uniquely tragic. 

As Kenny's family, friends, and co-workers celebrate his life and mourn his loss, they cannot help but ask themselves, "Why? What went wrong? How could this possibly happen to an experienced 25 year Railroad veteran?" It is only human to try to make sense out of such a tragedy by asking such questions. But if experience is any guide, the full truth as to what really happened will not emerge until long after the period of initial shock and grieving. 

From my point of view as a railroad accident FELA lawyer, at times like this I am always struck by the disconnect between the superficial news reports in the media and the complex depths of the true story. One article from the Connecticut Post is typical.  Click here for article. It gives the bare known facts, and then refers to two earlier Metro North railroad accident worker fatalities, both of which were FELA cases handled by my firm. The Robert Ard, Jr. case is instructive. After Bob was killed by a Metro North train in Stamford Yard, Metro North Railroad management issued a Report placing all the blame on him, a conclusion other law firms endorsed when declining to help his wife and two daughters. Of course Bob could not speak for himself, but by aggressively using the tools of federal court discovery we were able to uncover the truth: the underlying cause of Bob's death was in fact Metro North's failure to follow its own failsafe procedures for safe switching operations. After a two week federal court trial, the jury rejected Metro North's "blame the victim" defense and returned a gross verdict of $4.3 million for Bob's wife and daughters.  For information on the Ard verdict, click here and here.  

As the Ard case illustrates, the full truth will not emerge even when the Railroad conducts its own investigation and issues its Report. Indeed, it is likely Metro North's Report actually will avoid or obscure the truth as to what really happened and why. It takes time and hard work, but the truth as to what really happened can and must be discovered, if only to provide closure for Kevin McGrath's loved ones and to ensure that such a tragedy never happens again.

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