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Straight
Track #95
| Protecting The Shove With Your Own Vehicle J.
Dillon Hoey
Hoey & Farina Partner
1-888-425-1212
I recently received a letter from a UTU general chairman telling me how it is
becoming difficult for him and his local chairmen to police the collective
bargaining agreements under their jurisdiction. |
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He went on to write that many of his members are
"willfully" violating their own agreements in order to make
their jobs easier. He specifically asked that we publish his letter on
Straight Track for two reasons: 1) to show the problems in today's work
place during difficult economic times; and 2) to discuss whether his
members are covered under the Federal Employers' Liability Act (FELA)
under the circumstances discussed herein. I share pertinent parts from his
letter with you below.
"It is becoming more difficult for rail union representatives to
police the collective bargaining agreements under their jurisdiction due
to the fact that many of our members are 'willfully' violating their own
agreements in order to make their jobs easier.
"As an example, our very own members both in road and yard service
are utilizing their personal vehicles in order to make their jobs easier
or to simply assist the carrier for a specific move at a specific
location. There have been dozens of reports from local officers and
members complaining that their coworkers at various locations are
utilizing their own personal vehicles in the performance of their duties
as a conductor, trainman or engineer. Our own members are utilizing their
own personal vehicles in order to protect shoves and to transport
themselves or other crew members during their tour of duty. There are even
complaints of our own members requesting that another craft protect a
shove or make a coupling, which is also a violation of existing schedule
agreements.
"The practice of employees in train or engine service willfully
utilizing their own personal vehicles is one prime reason for employees’
reductions or lay-offs, and why extra boards are not utilized properly by
the carrier.
"One of the most overlooked and most critical factors not being
considered by our members who decide to utilize their own personal vehicle
during the course of their tour of duty is the employee is placing himself
in a position to be held liable should he or someone he maybe transporting
in his own vehicle get hurt. You can rest assured the carrier will not
hesitate to place the blame and responsibility on an employee and most
likely take the position the employee was not required to use his own
personal vehicle and most definitely hold him accountable.
"Engaging in this type of activity causes job loss and can even
assist the carrier in their continued 'union busting' tactics.
"Again, as always, we would advise all union members to know their
collective bargaining agreement. Always comply with the intent of their
agreements and report any and all violations to their respective union
officer. The big key here is, the job you save could very well be your
own. Therefore, I recommend that members always do the job required of
them in accordance with their collective bargaining agreement."
In response to the above letter, if the carrier instructs you to utilize
your own vehicle, or if it is a condition of employment, then such
behavior is probably covered by the FELA. Also, if you must use your own
vehicle, such as is common among the brothers and sisters in other crafts,
such use is probably covered by the FELA. In those crafts where use of the
individual's vehicle is common or required by contract each particular set
of facts must be considered as to whether or not the FELA applies.
But the same is probably not true for the widespread use of personal
vehicles to protect shoves and to transport themselves or other crew
members during a job, or for any other reason. FELA liability does not
attach merely because someone is on duty and being transported at
company's expense or for the railroad's convenience. There must always be
some railroad negligence. FELA liability may attach to the railroad if the
driver is negligent, and this negligence causes injury to a railroad
employee, but only if the driver is found to be the agent of the railroad.
When the driver is an agent of the railroad, the driver's negligence then
becomes the railroad's negligence. However it is most important to
remember that the driver will also be subject to suit for his or her
negligent acts.
But, as the official said to me, "The railroad will not hesitate to
place the blame and responsibility on an employee if an accident occurs
when he is using his own personal vehicle." That's right. Moreover,
the railroad will likely take the position that the employee was not
required to use his own personal vehicle to try to hold them accountable.
Furthermore, use of your own vehicle while on duty might not be covered by
your personal vehicle insurance. Your insurance provider might refuse to
cover you, or exclude from your policy, any accident resulting from using
your vehicle on the job. The insurance company might require you to have a
special rider to extend coverage for vehicle use at work, which of course
could mean extra expenses for you.
The safe bet is not to use your personal vehicle. Employees should use
only vehicles provided by the railroad when required to do so in
accordance with their collective bargaining agreement or at direction of
their union and/or a carrier officer. If the carrier instructs you to use
your own vehicle, remember to never refuse a direct order but be sure to
document the order, have it witnessed if possible, and immediately notify
your local union representative.
This particular response addressed the concerns of an UTU officer. Other
crafts may have different agreements and concerns. Hoey, Farina and Downes
suggests that you always check with the union representative of your craft
for specific guidance on your particular situation or concern before you
choose to use your own vehicle.
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