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Straight
Track #260
RAILROAD
RETALIATION
REPORT
Part 3:
CONGRESS STANDS UP FOR RAILROADERS
By James L. Farina,
Alan J. Fisher and Steven P. Garmisa
To help protect the
United States from deadly terrorist actions, the U.S. Congress enacted
important new legislation. One goal of the new law is to require
railroads to eliminate hazardous conditions, and comply with federal
safety and security rules.
However, it is
easier said than done. Why? Because it is expensive to eliminate
dangerous conditions and abide by safety/security laws. Instead,
railroads are inclined to focus like laser beams on increasing profits.
After all, money saved by skimping on compliance and making minimal
repairs will make railroad executives multimillionaires.
The challenge for
Congress – when the 9/11 Commission pointed out that the U.S. rail
system is a tempting, vulnerable target for future terrorist attacks –
was how to make sure railroads (1) comply with safety and security laws,
and (2) spend the money required to eliminate hazardous conditions.
One unpalatable
alternative would be to assemble a vast army of federal inspectors, and
dispatch them to scrutinize railroad conduct. But paying for enough
inspectors to keep railroads in line would be horribly expensive. Plus
it probably would not be very effective.
In a perfect world,
the government could rely on railroaders to “blow the whistle” when
railroads fail to eliminate hazardous conditions and violate safety
regulations. But the current Congress learned from hearings and rail
labor leaders that railroads have perfected techniques for retaliating
against railroaders who report railroad misconduct.
The best solution,
Congress decided, was to enact a new law that provides strong protection
for railroaders who refuse to tolerate hazardous safety and security
conditions. Congress therefore voted to stand behind railroaders who
have the courage to stand up to railroads that put profits over safety
and security.
Railroaders who are
confronted with hazardous workplace conditions have important new
protections under amendments to the Federal Rail Safety Act. Among the
new provisions, the amended law prohibits railroads from retaliating
against employees who refuse to work when confronted with hazardous
safety or security conditions. But there are specific statutory
requirements that govern this powerful new right.
This is the third in
a four-part introduction to 49 United States Code, Section 20109 – as
amended on August 3, 2007, by “The Implementing Recommendations of the
9/11 Commission Act of 2007.”
The text of the
revised version of Section 20109 is available at http://www.osha.gov/dep/oia/whistleblower/acts/frsa.html
Refusing to violate
safety laws
The new statute
prohibits railroads from retaliating against employees for “refusing
to work when confronted by a hazardous safety or security
situation related to the performance of the employee’s duties” –
if the employee satisfies several requirements. Section
20109(b)(1)(B).
Additionally, the
statute provides protection when an employee who is responsible for
inspecting or repairing equipment, track or structures refuses to
authorize use of those items because of a hazardous safety or
security condition. Again, however, the statutory protection only
applies if the employee satisfies several specified requirements.
Section 20109(b)(1)(C).
What are these
requirements?
A refusal to work
under hazardous safety or security conditions is protected only
if the following requirements are satisfied:
(1) The refusal is
made in good faith;
(2) No reasonable
alternative to refusal to work is available to the employee;
(3) A reasonable
person would conclude, under the circumstances confronting the
employee, that (a) the hazardous condition presents an imminent
danger of death or serious injury, and (b) the urgency of the
situation does not allow sufficient time to eliminate the danger
without the refusal to work; and,
(4) The employee,
where possible, has notified the railroad of the existence of the
hazardous condition, and of his or her intention not to perform further
work until the hazardous conditions are eliminated or corrected.
Section 20109(b)(2).
A similar set of
requirements applies when someone who is in charge of inspecting or
repairing equipment, track or structures refuses to authorize use of
such items because of hazardous safety or security conditions.
Specifically, in order to qualify for protection, an employee who
refuses to authorize use of equipment, track or structures because of
hazardous safety or security conditions must prove:
(1) The refusal is
made in good faith;
(2) No reasonable
alternative to the refusal is available to the employee;
(3) A reasonable
person would conclude, under the circumstances confronting the
employee, that (a) the hazardous condition presents an imminent
danger of death or serious injury, and (b) the urgency of the situation
does not allow sufficient time to eliminate the danger without the
refusal; and,
(4) The employee,
where possible, has notified the railroad of the existence of the
hazardous condition, and of his or her intention to not authorize the
use of equipment, track or structures until the hazardous items are
repaired or replaced. Section 20109(b)(2).
Reporting hazardous
safety or security conditions
Railroads are also
prohibited from retaliating against employees who report – in good faith
– that there is a hazardous safety or security condition. Section
20109(b)(a)(A).
Security Personnel
When railroad
security personnel discover a hazardous safety or security condition,
they are protected from retaliation if they report the dangerous
situation. However, security personnel are not protected if they refuse
to work when confronted with a hazardous safety or security condition.
Section 20109(b)(3).
The next issue the
Hoey & Farina Railroad
Retaliation Report turns to the remedies and procedures
provided by the amended version of Section 20109.
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