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Straight
Track #22
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In Doubt, Write It Out: The Value of a Written Complaint Richard
Haydu
Hoey & Farina Attorney
1-888-425-1212
The Federal
Employers' Liability Act was passed at the turn of the last century to facilitate railroad worker recovery
in the event of workplace injury and, thus, to encourage the railroads to
create a safe environment in the workplace. |
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One would think
that railroads, with the knowledge and expertise of their thousands of
employees and over a century of experience, would easily recognize
workplace hazards and happily seek to remedy them. After all, wouldn't you
want happy, safe, uninjured employees? This is often not the case,
however.
Given the fact
of business life involving financial pressures, time pressures and merger
pressures, railroads often overlook common sense safety matters. Despite
(1) the relatively common practice of having "safety meetings"
involving members of different crafts expressing concerns and ideas on how
to do things more safely, (2) safety rules which require the reporting of
"any unusual condition that may affect the safe and efficient
operation of the railroad", and (3) catchy slogans such as
"safety first" and "safety is my responsibility,"
railroaders often complain that they feel this attitude is more for show
than for real.
As
we have seen, employees are supposedly encouraged to report safety
problems and they often do so. Reports of debris and litter in the yard,
problems with switches, problems with track structure such as drainage,
ballast structure, or defects in tools or equipment are often reported to
next line employees, such as trainmasters, yardmasters or foremen.
Sometimes these matters are brought up by your representatives at safety
meetings. Should you then rest assured that the railroad has notice of
problem conditions and will work on remedying them if possible. Not so!
Let me give you a few examples.
You work in a
yard which is usually strewn with debris which has fallen off of cars.
This is obviously a dangerous walking hazard. You brought this up to the
trainmasters and yardmasters. Your representative on the safety committee
has even brought it up at safety meetings. If an employee trips over the
debris and injures himself, the railroad has notice that this condition
exists and will admit its fault. Think again. During a trial for personal
injuries to the employee, the railroad denied under oath ever receiving
any complaints from any of the men regarding the debris in the yard.
The
company officials had a complete loss of memory regarding any of these
verbal complaints. The safety committee had minutes kept by a company
officer which were very sketchy. Mysteriously, no record existed in the
minutes of complaints of debris in the yard. The railroad said it was not
responsible for the injury because it did not know that there was a
problem.
This actually
happened. Fortunately, the legislative representative or safety officer of
the union came to the rescue. He had kept carefully detailed letters
written by individuals to the railroad complaining of the situation copied
to him, as well as keeping copies of his own letters to the railroad
complaining of the situation and demanding its rectification. The railroad
was suddenly faced with hard, irrefutable evidence on this issue instead
of being faced with a situation of "my word against your word."
An engineer was
severely injured on oversized, overly sloped ballast in a yard. As
expected, the railroad denied any knowledge of prior complaints regarding
this condition. They said, “If we didn’t know about it, we don’t
have to fix it.”
The union
officials testified that they went up to the claim agent with a box of the
oversized ballast, dumped it on his desk, and asked him "when is this
stuff going to kill someone?" Not surprisingly, the claim agent
denied that the conversation took place in that manner and it was a matter
of “my word against your word.”
Luckily, these
union officials had the foresight to follow up the conversation with
written letters condemning the ballast conditions. Not only did the local
chairman get involved in the written complaint writing, but the
legislative representative also became involved. When faced with three
foot-by-three foot blow ups of the letters of complaints by the union
officials and supporting photographic documentation they had taken, the
railroad officials were forced to beat a hasty retreat from their earlier
testimony regarding lack of notice. The railroad suddenly settled the case
in the middle of the trial.
These examples
illustrate a powerful lesson to be learned by any railroader. "When
in doubt, write it out." A railroad official may forget a verbal
complaint because he is too busy or simply does not want to deal with it.
Action may not be taken on a complained of item because it may be felt by
the railroad that the complaint is too trivial, action is unnecessary, or
that action is too expensive. No one likes to be proved wrong, so after an
accident occurs, there is even more pressure on the railroad official to
"forget" a verbal conversation. Reasons for forgetfulness
include not wanting to look bad before bosses or, quite simply, not
wanting to "fess up" to liability and try to reduce the
railroad's damages at your expense.
The old saying
"a picture is worth a thousand words" also works for letters.
Write a letter confirming a conversation. Send the letter to your safety
officer/legislative representative to pass on to the railroad officials.
Photograph a condition if appropriate. Send a letter reminding officials
of an item discussed at a safety meeting. When faced with written reports
of bad conditions, a railroad is more likely to act. Remember, the squeaky
wheel gets the grease.
A railroad is
more likely to act upon written complaints and correct a bad situation
before an accident happens. Hopefully, the railroad will remedy any unsafe
condition before an accident happens. If they do not, the written
complaints you make help you or your fellow worker in keeping the railroad
from denying liability helping you to recover for your injuries.
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