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

 

Work Stabilization - Agreement Package - Rail Safety Bill

From: Gore, Gil [mailto:gilgore1@gmail.com]
Sent: Sunday, March 01, 2009 7:19 PM
To: All Local Chairmen BLET UP Southern Region – 17 Questions

Subject: FW: Questions for Bro Gore - Work Stabilization - Agreement Package - Rail Safety Bill

Brothers,

I am providing these questions and answers that were forwarded to me regarding the Work Stabilization Agreement in DFW – Longview and the Agreement Package out for ratification on our Committee. These questions would apply to San Antonio as well and Houston once we get a finalized agreement. We are still working on the work stabilization agreement in the Houston Hub. There are also questions about the Standing Bid and Temporary Lodging Agreements as well as one on the new Rail Safety Act. My responses are in red below. Links to the agreements are located below for your quick reference.

DFW-Longview Work Stabilization Agreement

San Antonio Work Stabilization Agreement

Agreement Package Proposal – Entire GCA

Hoping you find this information useful, I remain.

Fraternally,

Gil Gore

BLET - CONFIDENTIAL COMMUNICATION
This message is covered by the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-2521, and is legally privileged. The content of this message is for informational purposes only; provided to the membership of the BLET and should not be construed as any official position on the application of any contract language discussed in this communication and should not be used or referenced by anyone in future proceedings. Any use of this information by anyone other than intended recipients is prohibited.

1. Has this already basically passed by a polling of your local chairman and polling Troy Johnson's local chairman, when do you think this will be in effect. The DFW – Longview and San Antonio Work Stabilization Agreements are out for ratification with ballots due back by 03-15-09. The agreement package is out for ratification (Standing Bid – Temp Lodging – Board Positioning – Pool Reduction) as a package to our entire Committee with ballots due back by 03-15-09. The UTU has agreements out for ratification in DFW, Longview and San Antonio. We are working on getting a work stabilization agreement for the Houston Hub as soon as possible. As you know, these are tri-party agreements (BLET – UTU – UP). DFW – Longview and San Antonio fall under the jurisdiction of UTU Chairman Johnson. Houston falls under the Jurisdiction of GC Bumpurs. As far as an implementation date, we will have to work through that once they are ratified. 2. I don't have trainman rights in Longview hub so should I choose Ft Worth as my EFT and bid to Shreveport ( i have residence here) Assuming the agreement ratifies on both the UTU and BLET side, EFT Choice is a personal decision that each person will have to make initially or they will be assigned the EFT in which they are currently working. The establishment of EFTs neither grant nor reduce any seniority entitlement to anyone in either train or engine service. Whatever seniority you had prior to the implementation of these Work Stabilization Agreements you retain after their implementation. Your engine service seniority entitles you to work anywhere in the DFW – Longview seniority district as an engineer. There are provisions in the agreement dealing with engineers working within their EFT and outside their EFT (Article IV Paragraphs A&B). I personally can see no benefit to selecting an EFT where you hold no trainman’s seniority but that is only my personal opinion. Others may see that differently. The final choice is left up to the employee. could they pull me back to Ft Worth under any circumstance, If you chose EFT 2 as your home EFT you can work anywhere as a locomotive engineer as long as your seniority permits. The only way you could be forced back to EFT 2 as an engineer is if you cannot hold an engineers assignment in Longview (EFT 4). can I even choose Ft Worth with no residence, Yes all employees are free to select any EFT where they hold seniority. That is a personal choice that will either be made by the employee or assigned per your last work location. With the restriction of changing EFTs only every 3 years in Article III, A, 4 the employee under most circumstances would want to select the location where they live and hold seniority. That is a generalized statement and not a one size fits all comment. If your desire is to work as an engineer in a location where you hold no trainmen’s seniority, then your decision on selecting an EFT might be different under those circumstances. The important thing to remember is that your EFT selection in no way restricts the seniority that you have right now. No matter which EFT you select as you home EFT, you can continue to work as an engineer in Longview until you retire seniority permitting. if i choose Ft Worth and work in Shreveport and then can't hold Shreveport or Longview hub and no one in Ft Worth is younger than me working would I flow straight back to conductor there You could if you cannot hold as an engineer in EFT4 or EFT2. Per Article IV, B, 2 you have the opportunity to flow back to train service at your home EFT if you have trainmen’s seniority at that location. You also have the option to exercise your engineer’s seniority to any position you can hold in the DFW – Longview hubs if you choose to continue working as an engineer. See Q&A 3 regarding your ability to bid only in the craft you are currently working. Should you flow back to train service in EFT 2 then you would not have the opportunity to go back to Longview as an engineer until you were brought back to engine service under the agreement. 3. If you choose to flow back to train service and then decide you want to go back to eng service outside your EFT can you bump an engineer in another EFT even though you are a trainman, is there a time limit or what The decision to flow back to train service will not fit all situations. Everyone should remember that once reduced to train service you have no bid rights as an engineer (See Article VI). You will have to be called back to engine service before you would again secure bid rights to engineer assignments. As long as you staying working as a locomotive engineer somewhere within the DFW – Longview seniority roster, then you would have engineer bid rights when a position comes open at the location of your choice. In this circumstance, the Standing Bid Agreement would get you home to Longview quicker by application rather than waiting on a 6 day bulletin to expire. 4. Alexandria llj66 will lodging be provided if we have to cover off extraboard and would it be counted in our 75 days, or since its a 125 miles lodging is automatic On all assignments covered off of extra board over 30 miles the carrier has a contractual requirement to provide lodging. The only way any days of lodging would count against your 75 days would be if you were force assigned to the LLJ66 at Alexandria as your regular assignment. 5. Is there going to be a system put in place to see the lodging you have used for the calender year and a notation on the seniority roster showing your EFT It is my understanding that there will be an EFT designation on the rosters. Per the Temp Lodging Agreement, each employee is responsible to keep track of their entitlement to lodging. It would be advisable to keep a calendar or diary of assignments and lodging used. Most are doing something like that for tax purposes are forced to work away from home. 6. Why can't we have a bump board anymore , like ts316 be85 We have objected to the bump board issue and there is a fix requested in the computer que by both Labor and CMS. We expect the fix sometime soon. 7. how do you put a standing bid in this new computer system, even for an extraboard I personally have never done this but sent a note to Bev Anders requesting that they have a web meeting – conference call with Troy and I so that we can review that process. There are standing bids honored all over the Southern Region weekly with the adjustment of extra boards now. If we need more training, we will try to press for securing the same so that everyone knows how the process works prior to any implementation. 8. Forcing engineers off the bump board to a no-bid job after they stay on the bump board 48 hours , if no one they force the 1st out cut off engineer in that EFT to it and if there are no cut off engineers and no one hanging out on the bump board whats the next scenario a cut off engineer from another EFT Per Article V of the DFW – Longview Work Stabilization Agreement if no one on the bump board and no applications and no demoted engineers at the EFT, then we would force the oldest demoted engineer from the next nearest EFT. 9. Have you heard if they AW board for conductors will go away if this passes and/or is the lodging they have been paying going away if this fails It is my understanding they have negotiated new AW boards in all hubs. The lodging that has been provided was a result of some complaining by both the UTU and BLET labor leadership. In today’s economic environment, UP is planning to cut many management positions. There is no contractual entitlement to lodging at the present time. With or without this proposal, the lodging was on the radar for reduction. Troy, Larry and I have staved off the pulling of this lodging several times in the last year. Without a contractual entitlement, it is only a matter of time before UP reduces to a bare bones benefit only providing the requirements under the collective bargaining agreement. That is one reason that it appears there was a rush to ratify initially. I was trying to get the provisions in place so there would be no disruption in anyone’s benefit who currently is forced. 10. Where are we at on the new Federal Law about rest days or assigned off days and when does this go into effect for sure, or they going to cut the extraboard guarantees The BLET UP General Chairmen have been trying to be proactive on the issues surrounding the Rail Safety Bill. We met with UP in January in Spring at the suggestion of our assigned VP Lee Pruitt. While many questions remain unanswered by FRA, it was productive to sit down the UP and discuss the possible impact of the implementation of the RSA coming on July 16, 2009. From that meeting Brother Pruitt talked to President Rodzwicz and helped secure a meeting in Las Vegas among all BLET GCs and State Leg Bd Chairmen which was attended by Vice GC Russell Elley on behalf of our Committee. We have another meeting scheduled for March 18, 2009 in Omaha with UP. President Rodzwicz, VP Pruitt and BLET Leg Staff working with FRA on the implementation of the RSA will be in attendance at that meeting along with all the BLET GCs. Our goal in these meetings is come to understandings where possible with UP on the implementation and impact of the RSA on our members and identify any disputes for expedited handling. We are trying to be proactive on these issues and will be distributing more information as it is received. We are both in limbo (Carrier and Labor) on certain aspects of the bill until FRA clearly defines their interpretation of the implementation. All labor unions have stakeholders at the table in those discussions with FRA. Review the BLET GCAs Joint Letter to UP by clicking HERE

The 48 hour requirement in the Temporary Lodging Agreement to physically report to the force assignment location seems too harsh and will likely exclude many employees from qualification. Why did we agree to that provision? Agreements are usually negotiated in a quid quo pro fashion with each side securing benefits from the negotiations. The original proposal by the Carrier on this issue was to report within 24 hours. We felt that was certainly unreasonable and wanted 4 days. We ultimately agreed to the 48 hours as a compromise on the issue. While 48 hours in some instances may be tight, all locations on our territory that employees could be possibly assigned can be reached in no more than 12 hours travel time. That gives employees a day and ½ to prepare for the trip. The agreement mandates that you report to the location and attempt to make contact with the local MOP. The temp lodging agreement makes note that the purpose of the agreement is to provide opportunity for rest “prior to service” (Section 3, 2, Note). Reporting to the location simply means you must physically be there and contains no requirement to go to work within 48 hours of being assigned. That simply means you have to “report” and begin the qualification process by contacting the local MOP. It does not mandate that you go to work within 48 hours of being assigned. If you just arrived in town, then a rest period following the trip would be appropriate to comply with the Note in Section 3, 2 of the Temp Lodging Agreement. The quid pro quo exchange of the agreement is that they provide the lodging and we expeditiously fill the job. You can take longer, but doing so will put your entitlement to lodging in jeopardy. Does the 48 hour requirement to report to the forced location in the Temporary Lodging Proposal have exceptions for someone who is legitimately sick, on vacation, PL or for some other reason unable to report? As will all agreements, there is no one size fits all provision. If there are extenuating circumstances prohibiting someone from reporting within 48 hours, those should be explained to management with a commitment as to when you can report. If an employee was on vacation when the force assignment was made, then they should report within 48 hours after the vacation period ends and they will be entitled to lodging. If an employee is sick and unable to report, those circumstances should be reported to management with a request for exception and a commitment to report as soon as possible. Is the reference to EFTs in the proposed standing bid and bump rules subject to modification if the Work Stabilization Agreements are not ratified? The Work Stabilization Agreements are being ratified by each seniority location. DFW and Longview are being ratified together since they are common dovetail seniority. San Antonio is a separate ratification as will Houston be once it is completed. Coffeyville and Van Buren do not have need for Work Stabilization at this time because they retained the Side Letter 1 provisions form the UP Katy Merger of one and engineer always an engineer. If the Agreement Package ratifies and the Work Stabilization fails to ratify, then there will have to be adjustments in the agreements since there will be no EFTs. The references to EFTs would be eliminated and we would return to forcing the current assignment provisions for filling no bid vacancies. Reference the Standing Bid Proposal Article II Section 2 number 3 – “To the closest unassigned/no bid vacancy at another EFT”. Can you give an example of how this would work if the Work Stabilization Agreements passes and how it might apply if they fail ratification? Assuming the Work Stabilization Agreement ratifies, I provide the following example of the Standing Bid Article II Section 2, 3. An Engineer in Fort Worth has failed to place within 48 hours of notification of displacement he would be assigned as follows: To a no bid vacancy within EFT 2 (Fort Worth – Dallas). 2. To an Engineer’s Extra Board within EFT 2 seniority permitting. If 1 and 2 or not available then to a no bid vacancy at Sweetwater (EFT 1), Chickasha (EFT 3) or Longview (EFT 4). Assuming the Work Stabilization Agreement fails ratification, I provide the following example of the Standing Bid Article II Section 2, 3. To the closest no bid vacancy within the Dallas – Fort Worth – Longview Hub. To an Engineers Extra Board within the Dallas Fort Worth – Longview Hub seniority permitting. Would it still be acceptable for an engineer to pass up and bump within the same pool since he would no longer be assigned in that pool after passing up? No, the intent of the agreement is to stabilize the pool. It would not be permissible for an engineer to give up his assignment and place back in the pool which he vacated when he gave up the assignment unless he had no other seniority choice available. Why is there a 3 year restriction on an employee changing his/her home EFT in the Work Stabilization Agreements? The title of the agreement is Work Stabilization. The intent is to stabilize the work environment and provide opportunities for employees to stay home. There was much discussion about this provision. The trainmen wanted 5 years and we lobbied for 1 year. Our compromise was to allow movement of an EFT every 3 or more years. This is to prohibit someone from trying to gain unfair advantage of the ability to flow to or from engine service at specific locations where he/she might have a more advantageous seniority position simply on a whim. That is also the reason for the proof of relocation. EFT’s do not restrict or improve anyone’s seniority standing. UP’s plan should be to hire location specific to help control manpower needs and thus eliminate force assignments. These agreements preserve everyone’s seniority right to the expanded seniority in the hub in both train and engine service while at the same time protecting the promotion rights of trainmen as long as promotion is taken at the first opportunity at your home EFT. The selection of an EFT is nothing more than the area which identifies your rights of flow to and from engine service thus limiting your requirement to chase your seniority around these huge hubs. If someone wants to relocate to Chickasha from say Hearne before the 3 year period expires, he/she can do so with all seniority in tact. If reduced from engine service at Chickasha, then he/she would be entitled to displacement rights available when working outside his/her EFT under Article IV, B, Outside EFT. Those provisions are still much better than the current provisions which would have that person chasing his/her seniority over the entire seniority district if reduced from engine service at Chickasha. There is no magic bullet that will cover all circumstances. The provisions in this agreement while maybe not perfect for a particular unusual circumstance, provides better working conditions for everyone, even those who might decide to relocate before the 3 year limitation has expired. These agreements benefit all train and engine service employees everywhere. 17. In setion II, part B, San Antonio Work Stabilization Says, will include all assignments that go on duty at that location……etc………... Does this mean that the xe50 board at ax226-Taylor will protect “ALL” assignments at Taylor or will the BA110-Smithville xe70 board still protect the yard jobs like we do know? The jurisdictional coverage of every extra board remains the same. The Work Stabilization Agreements do not change the jurisdictional coverage of the extra boards or what jobs are protected by what extra boards. The inclusion of all assignments on duty at that location is related to the geographical identification of the Ebb and Flow Territories for the purposes of flow to and from engine service. Outside that, the EFTs have no impact on other agreements.