FRA cracks down on harassment of injured rail workers

CLEVELAND, March 30 — BLET National President Ed Rodzwicz today hailed action by the Federal Railroad Administration to crack down on the harassment and intimidation of injured rail workers.

In today’s Federal Register, the FRA published a worker-friendly interpretation of 49 CFR Part 225-Harassment and Intimidation Prohibition. The FRA now interprets harassment and intimidation of workers to occur when railroad supervisors accompany injured employees into an examination room.

“Workers often feel uncomfortable or intimidated when a representative of railroad management enters the doctor’s examination room after the worker has sustained an on-the-job injury,” President Rodzwicz said. “On behalf of all BLET members, I thank the FRA for clarifying this point and improving the protection of injured rail workers.”

There are exceptions to the rule — a railroad supervisor can enter the exam room if the injured employee issues a voluntary invitation, or if the employee is unconscious or unable to communicate and the supervisor’s input is needed to provide material information to the physician.

The rule came about after injured workers complained that unwelcome railroad supervisors entered exam rooms in an attempt to persuade doctors to issue less severe diagnoses. The less severe the diagnosis, the less likely the injury would have to be reported to the FRA.

The FRA can issue harsh financial penalties to rail companies for harassing and intimidating workers.

“This new rule protects the privacy of our members and allows them to have the same doctor-patient confidentiality that all Americans enjoy,” President Rodzwicz said. “The BLET sees this favorable interpretation as a step in the right direction by the FRA.”

A copy of the interpretation is available on the BLET website at:
http://www.ble-t.org/pr/pdf/49CFRPart225H&I.pdf

Monday, March 30, 2009
bentley@ble.org

http://www.ble.org/pr/news/newsflash.asp?id=4786

© 1997-2009 Brotherhood of Locomotive Engineers and Trainmen
http://www.ble.org

 

Harassment & Intimidation Interpretation From FRA

Brothers,

 

Attached and below is the FRA interpretation of 49 CFR § 225.33(a)(1) prohibiting harassment and specifically addressing railroad supervisors going into the examination room during the exam of injured employees.

 

Please distribute this information to our membership.

Fraternally,

Gil Gore

 

DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 225

Railroad Accidents/Incidents: Reports

Classification, and Investigations

AGENCY: Federal Railroad

Administration (FRA), Department of Transportation.

ACTION: Notice of interpretation.

SUMMARY: FRA is issuing this notice of interpretation to inform interested parties of its application and enforcement of the harassment or intimidation provisions contained in 49 CFR part 225, specifically relating to situations in which a supervisor or other railroad official accompanies an injured employee into an examination room. This notice of interpretation informs the regulated community as to when such behavior constitutes harassment or intimidation calculated to discourage or prevent the reporting of an accident, incident, injury or illness. This document is not intended to address or impact statutory provisions related to providing ‘‘prompt medical attention, as enforcement of those provisions fall within the jurisdiction of the U.S. Department of Labor.

FOR FURTHER INFORMATION CONTACT:

Douglas H. Taylor, Staff Director,

Operating Practices Division, Office of

Safety Assurance and Compliance, FRA,

1200 New Jersey Avenue, SE., RRS–11,

Mail Stop 25, Washington, DC 20590

(telephone 202–493–6255); or Zeb

Schorr, Trial Attorney, Office of Chief

Counsel, FRA, 1200 New Jersey Avenue

SE., RCC–11, Mail Stop 10, Washington,

DC 20590 (telephone 202–493–6072).

SUPPLEMENTARY INFORMATION:

I. Background

Section 225.33(a) of Title 49 of the Code of Federal Regulations requires each railroad to ‘‘adopt and comply with a written Internal Control Plan addressing the railroad’s policies and procedures regarding accident/incident reporting. This section further requires that such Internal Control Plans include, at a minimum, a ‘‘policy statement declaring the railroad’s commitment * * * to the principle, in absolute

terms, that harassment or intimidation of any person that is calculated to discourage or prevent such person from receiving proper medical treatment or from reporting such accident, incident, injury or illness will not be permitted or tolerated * * *.’’ The FRA Guide for Preparing Accident/Incident Reports also notes that ‘‘many railroad employees fail to disclose their injuries to the railroad or fail to accept

reportable treatment from a physician because they wish to avoid potential harassment from management or possible discipline that is sometimes associated with the reporting of such injuries.’’ FRA Guide, Ch. 1, p.8. The FRA Guide goes on to state that supervisory personnel and mid-level managers in some instances ‘‘are urged to engage in practices which may undermine or circumvent the reporting of injuries and illnesses.’’ Id.  FRA is aware of incidents in which a supervisor or other railroad official (hereinafter collectively referred to as the ‘‘supervisor’’) has accompanied an injured employee into an examination room, or other room in which the injured employee received medical treatment (hereinafter collectively referred to as the ‘‘examination room’’). While FRA is concerned that injured employees in such situations may not receive complete or prompt medical treatment, responsibility for ensuring that such treatment is afforded has been assigned by Congress to the Department of Labor. FRA is concerned that when accompanied by a supervisor an injured employee may be discouraged or otherwise prevented from reporting an accident, incident, injury or illness. Similarly, a supervisor may influence the type or extent of medical treatment afforded the employee in an effort to affect the reportability of that injury. Although concerns have been expressed as to the need for a railroad to determine

the extent of an employee’s injuries, FRA does not believe that such concerns outweigh the potential pitfalls and problems associated with the practice of having supervisors accompany injured employees while they receive care from their physicians. Moreover, physicians are in the best position to evaluate the health of injured employees and the presence of a supervisor during such examinations would not, in most cases, add any value to the treatment of an employee and would, in general, be a distraction to both the employee and the physician.

 

The purpose of this document is to articulate a general principle regarding what behavior constitutes harassment or intimidation in violation of § 225.33(a)(1) in the particular context of supervisors accompanying injured employees in examination rooms. The interpretation contained in this notice reflects the longstanding position of FRA regarding this practice. This document is not intended to address or impact the meaning or application of the statutory provisions contained in 49 U.S.C. 20109 related to providing ‘‘prompt medical attention,’’ as enforcement and application of those provisions fall within the jurisdiction of the U.S. Department of Labor

 

II. Interpretation

A. General Principle

Harassment and intimidation occur in violation of § 225.33(a)(1) when a railroad supervisor accompanies an injured employee into an examination room, unless one or more of the exceptions listed in   section II(B) of this notice exists.

 

B. Exceptions

FRA recognizes that there are limited circumstances in which it is appropriate, and indeed preferable, for a supervisor to accompany an injured employee into an examination room. Thus, FRA believes that limited exceptions to the general principle articulated in section II(A) of this notice are necessary. Consequently, FRA recognizes the following limited exceptions:

 

(1) The injured employee issues a voluntary invitation to the supervisor to accompany him or her in the examination room. The injured employee must issue this invitation freely, without coercion, duress, or intimidation. For example, an injured employee may seek the attendance of a supervisor where the supervisor is a friend. This exception does not encompass invitations issued by third parties, including physicians, unless the invitations are made pursuant to the request of the injured employee.

 

(2) The injured employee is unconscious or otherwise unable to effectively communicate material information to the physician and the supervisor’s input is needed to provide such material information to the physician. In these circumstances, the supervisor is assisting the injured employee in providing information to the physician so that the injured employee may receive appropriate and responsive medical treatment.

 

Issued in Washington, DC, on March 24,

2009.

Jo Strang,

Acting Deputy Administrator, Federal

Railroad Administration.

[FR Doc. E9–6953 Filed 3–27–09; 8:45 am]

BILLING CODE 4910–06–P

 

From: Policy, Kathleen [mailto:policy@ble-t.org]
Sent: Monday, March 30, 2009 8:39 AM
To: _General Chairmen US GCA; _Legislative Chairmen US GCA
Cc: Tolman, John; Pontolillo, Tom; Stephen J. Bruno
Subject: harassment & intimidation interpretation

 

The FRA issued the attached notice of interpretation to inform interested parties of its application and enforcement of the harassment or intimidation provisions contained in 49 CFR part 225, specifically relating to situations in which a supervisor or other railroad official accompanies an injured employee into an examination room.

 

Kathleen Policy

Legislative, Political & Regulatory Coordinator

Brotherhood of Locomotive Engineers and Trainmen

Teamsters Rail Conference

25 Louisiana Ave. NW

Washington, D.C. 20001

Office: (202) 624-8766

Cell: (202) 552-9328

Fax: (202) 624-3086

policy@ble-t.org

www.bletdc.org

 

Railroad Retirement Tier I and II Earnings Limits Increase

January 19, 2009 | 11:40 a.m. CST

The amounts of compensation subject to Railroad Retirement Tier I and Tier II payroll taxes will increase in 2009; however, the Tier I tax rate on employees and employers remains unchanged.

Tier I and Medicare Tax in 2009 will remain at 6.20 percent and 1.45 percent respectively; however, the maximum amount of an employee's earnings subject to the 6.20 percent rate will increase to $106,800 in 2009 from $102,000 in 2008.

Railroad Retirement Tier II tax rate on employees will remain at 3.9 percent in 2009, and the rate on employers will remain at 12.1 percent; however, the maximum amount of earnings subject to Railroad Retirement Tier II taxes will increase to $79,200 in 2009 from $75,900 in 2008.

The unemployment insurance tax rates on railroad employers in 2009 will range from 2.15 percent (the minimum basic rate of 0.65 percent plus the 1.5 percent surcharge) to a maximum of 12 percent on monthly compensation up to $1,330.

If you have questions about Railroad Retirement, or railroad unemployment and sickness benefits, please visit the Railroad Retirement Board (RRB), or call your local RRB office. See Year 2009 Railroad Retirement and Unemployment Insurance Taxes for more information on Tier I and II taxes.

 

FMLA update: Another positive ruling

CLEVELAND, January 9 — Resolution of the Family and Medical Leave Act (FMLA) continues to unfold in a positive manner for Rail Labor as a group of FMLA arbitrators unanimously overturned additional carrier arguments on January 8.

After receiving the December 2 Award, which sided unanimously with Labor, the carriers filed a request for interpretation. In the December 8 Award, a panel of three arbitrators ruled that the FMLA policies of the four largest Class I railroads (BNSF, CSXT, NS and UP) violate the industry’s national vacation and personal leave agreements.

In the January 2 Award, the arbitrators unanimously rejected the carriers’ suggestions that:

1. Unscheduled leave should be treated differently from scheduled leave for purposes of their ability to force employees to use their paid leave as FMLA leave; and

2. The BLET personal leave agreement should be treated differently than the other national personal leave agreements for FMLA substitution purposes.

“I am pleased the arbitrators unanimously agreed with our position,” BLET National President Ed Rodzwicz said. “I ask for patience from our members as this lengthy legal process continues to unfold.”

Approximately two years ago, the United States Court of Appeals for the 7th Circuit affirmed a lower court ruling that the law did not permit the carriers to override collective bargaining agreement provisions that gave workers control over scheduling paid leave. The legal process has been ongoing ever since.

Regarding the first interpretation question, the Board: “unanimously agree[d] that, just as no substitution of such days for FMLA leave may occur after such days are set, neither can it occur before those days are set. We see no legitimate distinction between the two. The carriers are therefore not permitted to require substitution of paid personal leave and/or single vacation days for FMLA leave before those days are set.”

Regarding the second, the arbitrators wrote that they: “similarly see no distinction that would vary the impact of our Award, which we intended to apply to [the BLET] agreement’s subject matter just as it does to all the others. Our Award therefore bars substitution of paid personal leave under the BLET national personal leave agreement.”

The unions are now preparing for the remedy phase of the arbitration. It is expected that a decision on that issue will be issued sometime this spring. Attorneys Mike Wolly and Margo Pave of the firm Zwerdling, Paul, Kahn & Wolly, P.C., are handling the case for BLET and several other Rail Labor unions.

More information regarding subsequent hearings will be made available on the BLET website.

Friday, January 09, 2009
bentley@ble.org

http://www.ble.org/pr/news/newsflash.asp?id=4754

BLET, labor win big in FMLA arbitration

CLEVELAND, December 8 — In a decision received this afternoon, a panel of three arbitrators has ruled that the Family and Medical Leave Act (FMLA) policies of the four largest Class I railroads (BNSF, CSXT, NS and UP) violate the industry’s national vacation and personal leave agreements. Among the victors are BLET members working for these railroads.

The BLET, along with ten other unions, had challenged carrier policies that required workers to use paid vacation and personal leave when taking FMLA leave in certain circumstances. Nearly two years ago the United States Court of Appeals for the 7th Circuit affirmed a lower court ruling that the law did not permit the carriers to override collective bargaining agreement provisions that gave workers control over scheduling paid leave. When the Supreme Court declined to hear the industry’s appeal, the stage was set for the arbitration of the matter.

The arbitration panel held that “the parties’ contracts at issue here do, as the District Court posited … ‘grant employees rights in addition to the accrual of vacation and/or personal leave, such as the right to determine when to use their accrued vacation and/or personal leave.’ … In all cases, employers may not unilaterally change scheduled vacations without good cause and appropriate notice. … [O]nce those days are set, no unilateral employer changes may occur without meeting specified contractual standards. These are not insignificant contractual benefits.”

The panel also found that “clear contract language and similar consistent arbitral precedent protect use of personal leave days and individual vacation days from arbitrary or unreasonable unilateral employer action unrelated to operational needs or other contractual standards.” The Award states “The carriers’ policies requiring employees to substitute paid vacation and/or paid personal leave for unpaid FMLA leave do violate the requirements of the national vacation and/or national personal leave agreements.”

According to the Arbitration Agreement, the Award becomes effective on December 16, 2008. On that date, the Agreement provides that “the carriers will immediately discontinue the invalidated provisions of [their] policies.” The arbitrators then will consider “the appropriate remedy for employees who were required to use paid leave for FMLA leave in violation of the national vacation and/or national personal leave agreements.” Assuming no agreed-upon extensions, initial submissions on that question will be due January 15, 2009, and reply submissions on January 30. A hearing then would be held by February 13, with a decision to be issued by April 14.

BLET National President Ed Rodzwicz congratulated those who made this victory possible, and thanked the BLET membership for their patience. “I want to congratulate, first and foremost, Mike Wolly, Margo Pave and the legal team who put on a great case, and our General Chairmen who persisted in keeping this struggle alive on the property and providing us with the data we needed to win. I also want to express my most sincere thanks to the Brothers and Sisters on BNSF, CSXT, NS, and UP for hanging in there throughout the many years that have passed while we fought to vindicate their vacation and personal leave rights.”

The Award is available for download as a PDF from the BLET website at:
http://www.ble-t.org/pr/pdf/JSCaseNo3750.pdf

BLET, UTU jointly petition FRA for review of EO 26

CLEVELAND, November 17 — The Brotherhood of Locomotive Engineers and Trainmen (BLET) and the United Transportation Union (UTU) filed a joint Petition for Review of Emergency Order 26 on November 14, requesting that the Federal Railroad Administration make specific exceptions to the Order in the name of safety.

The Emergency Order was issued on October 7, 2008, and significantly limits employee use of personal electronic devices in locomotive cabs. The ban applies to any electronic device that was not provided to the railroad operating employee by the employing railroad for business purposes.

“It is not our intention to unnecessarily complicate a fairly bright-line rule regarding the use of electronic and electrical devices,” BLET President Ed Rodzwicz and UTU President Mike Futhey said in their Petition for Review. “However, we do believe FRA should seriously consider those atypical situations in which EO 26 as currently written could inadvertently result in a diminution of safety, as compared to operating conditions and practices in effect prior to its promulgation.”

The Emergency Order came about because of the tragic accident in Chatsworth, Calif., which claimed the lives of 25 people on September 12 when a Metrolink passenger train collided with a Union Pacific train. Initial NTSB reports indicated the Metrolink engineer may have been distracted by use of a personal cellular phone while on duty.

“The safety of our members and the general public is the top priority of the Brotherhood of Locomotive Engineers and Trainmen, and these exceptions to Emergency Order 26 will make it much more effective,” BLET President Rodzwicz said. “The best way for our members to comply with the Emergency Order is to turn off their personal electronic devices, store them in their grips, and do not use them until you have been relieved from duty.”

BLET and UTU are seeking an exception to the Order banning the use of personal electronic devices while deadheading. While the unions agree that the Emergency Order seeks to improve safety, they argue that, “since deadheading crews have fulfilled their safety-related responsibilities — and in many cases are not on duty — they should not be restricted to ‘business purpose use’ only.”

To that end, the unions ask the FRA to rewrite a portion of the EO so that it reads: “A railroad operating employee who is deadheading may use a cell phone while within the body of a passenger train or railroad business car, or while inside the cab of a locomotive that is not the lead locomotive of the train on which the employee is deadheading.”

The use of cameras is also called into question. BLET and UTU argue that the EO appears to forbid photographic documentation by a train employee of safety hazards or violations of rail safety laws, regulations, orders or standards, which would actually diminish railroad safety.

On that issue, BLET and UTU ask for an exemption, which would read as follows:

“An electronic still or video camera may be used to document a safety hazard or a violation of a rail safety law, regulation, order or standard; provided, that (1) the use of a camera in the cab of a moving train may only be by a crew member other than the locomotive engineer, and (2) the use of a camera by a train employee on the ground is permissible only when (a) the employee is not fouling a track, (b) no switching operation is underway, (c) no other safety duties are presently required, and (d) all members of the crew have been briefed that operations are suspended. The use of the photographic function of a cell phone is permitted under these same conditions.”

Thirdly, the unions question a section of the EO that prohibits the use of electronic devices such (as calculators) to make computations. The BLET and UTU point out that a number of safety-critical computational functions are required in numerous circumstances if on-board systems fail or are not provided. These include managing correct horsepower per ton, calculating tons per operative brake, dynamic brake and tractive effort compliance, and correcting train length for speed restrictions and clearing track authorities.

A new section regarding exceptions to this portion of the EO should be added, and should be worded as follows:

“When mathematical calculations are required for safe train movement (e.g., managing correct horsepower per ton, calculating tons per operative brake, dynamic brake and tractive effort compliance, and correcting train length), it is permissible to perform such calculations by using an electronic calculator, or by using the calculator function of a cell phone or electronic timepiece.”

Finally, the unions petition the FRA to allow the use of Global Positioning Satellite tracking devices in order to gauge the accuracy of locomotive speed indicators, particularly when the designated measured mile lies within a temporary speed restriction of less than 30 miles per hour.

One effect of EO 26 is to preclude the use of a GPS device to calculate the speed of a train that is not equipped with a speed indicator because the train will not exceed 20 mph. Another is that the accuracy of a speed indicator determined within a slow order of 30 mph or less cannot be correlated with its accuracy at speed above 30 mph. Maintaining proper train speed is both safety-critical and demanded of a locomotive engineers.

The BLET and UTU petition the FRA to consider an exception to the EO for GPS devices, requesting that GPS tracking devices be allowed to verify the accuracy of the speed indicator in a controlling locomotive.

The joint Petition for Review was submitted to FRA today.

“BLET and UTU members will be kept apprised of the situation, and will be advised once FRA responds to our concerns,” Presidents Rodzwicz and Futhey said.

Monday, November 17, 2008
bentley@ble.org

 

Court of Appeals continues stays on direct observation rule

CLEVELAND, November 13 — In an order issued yesterday, the United States Court of Appeals for the District of Columbia Circuit has extended its stay of the implementation of a Department of Transportation regulation that would require direct observation of urine specimen donation in all return-to-duty and follow-up drug tests, which was to take effect on November 1.

The stay will remain in effect until the Court considers and rules on challenges to the constitutionality and legality of mandatory direct observation and an associated “strip search” requirement that were filed by nine unions — including the BLET and International Brotherhood of Teamsters — and the BNSF Railway.

The Court also issued the following briefing schedule:

·  The Joint Brief of Petitioners is due on December 12, 2008.

·  The Brief of Respondent DOT is due on January 12, 2009.

·  The Joint Reply Brief of Petitioners is due on January 26, 2009.

In addition, the Court directed that the case be placed on the argument calendar on the first available date following completion of briefing.

Thursday, November 13, 2008
bentley@ble.org

http://www.ble.org/pr/news/newsflash.asp?id=4730

Railroad Employees Flexible Benefits Program

Brothers,

I have been asked a question regarding the eligibility of engineers covered under the BLET National Agreement for Health and Welfare who are reduced to train service having an entitlement to continue enrollment in the BLET Flexible Spending Plan under the National Agreement.  If a member is covered by the BLET H&W Plan for 2009 he/she would be entitled to continue participation in the Flexible Spending Plan throughout the course of the year 2009 even if reduced to train service subsequent to being locked into the BLET H&W Plan for the 2009 calendar year.

I have also provided below the information on the BLET National Division site with links to description of benefits and enrollment forms.  Please encourage our membership to participate in this plan because our 2009 participation much reach 5% of our membership to retain the plan beyond 2009.  They can elect to participate in as small an amount as $120 for the year ($10 per month deduction).  The deadline for enrollment is approaching and it is imperative that those who want to participate enroll by November 12, 2008.  This is a very good benefit that we do not want to lose.

Thanking you in advance for your efforts, I remain.
Fraternally,
Gil Gore

Railroad Employees Flexible Benefits Program

In much the same way that a 401k program allows individuals to use pre-tax dollars to save for retirement, the Railroad Employees Flexible Benefits Program allows members to use pre-tax dollars to pay for certain medical expenses or dependent care expenses. The current 2008 plan allows members to save anywhere from $120 to $5,000 per year for dependent care expenses, or $120 to $3,600 per year for medical expenses. It is expected the dollar amounts will change under the upcoming 2009 plan year.

However, the program is in danger of being lost unless membership participation increases. Side Letter #8 of the 2007 National Contract specifies that at least 5 percent of eligible BLET members must participate in the plan or it will be terminated as of December 31, 2009. Current participation levels are below the 5 percent threshold, and the BLET is encouraging all members to contact United HealthCare for details when open enrollment begins.

Open enrollment for the plan will begin in the near future. Details on how to enroll will be provided on the BLET website and in the BLET newsletter once open enrollment begins.

In the meantime, the following information is being made available to BLET members so they can learn more about this money-saving plan.

2009 Enrollment Materials

Overview of Railroad Employees National Flexible Benefits Program for 2009 (PDF)

List of eligible carriers and Railroad Codes
(you will need these codes to complete your
enrollment forms) (PDF)

2009 Enrollment Form, Railroad Employees Flexible Benefits Program (PDF)

2009 Claim Form (PDF)

Over-the-Counter Medical Care Items Eligible and Ineligible for Reimbursement Under UnitedHealthcare Plans (PDF)

September 16, 2008
Flexible Spending Account will provide real savings

July 24, 2008
Flexible Benefit Plan information center now available

July 17, 2008
Flexible Spending Account enrollment begins in October

May 30, 2008
Flexible Benefits program allows members to save on health care expenses