CLEVELAND, January 15 — The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) announced today that the agency has signed an accord with BNSF Railway Co. (BNSF), under which the railroad has agreed to voluntarily revise several personnel policies that OSHA alleged violated the whistleblower protection provisions of the Federal Railroad Safety Act (FRSA) and discouraged workers from reporting on-the-job injuries.
“Protecting America’s railroad workers who report on-the-job injuries from retaliation is an essential element in OSHA’s mission. This accord makes significant progress toward ensuring that BNSF employees who report injuries do not suffer any adverse consequences for doing so,” said Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels in speaking for the agency. “It also sets the tone for other railroad employers throughout the U.S. to take steps to ensure that their workers are not harassed, intimidated or terminated, in whole or part, for reporting workplace injuries.”
The major terms of the accord include:
• Changing BNSF’s Policy for Employee Performance Accountability (“PEPA”) so that injuries no longer play a role in determining the length of an employee’s probation period following a record suspension for a serious rule violation; this has led to reductions in probation periods for at least 136 employees who had been injured on-the-job.
• Eliminating the railroad’s Personal Performance Index (“PPI”), which was used to assigned points to employees who sustained on-the-job injuries.
• Revising the Carrier’s Employee Review Process (“ERP”) so that work-related injuries no longer will be the basis for enrolling employees in the program, leading to the removal of 400 workers from the ERP.
• Instituting a higher level review by the railroad’s upper management and legal department for cases in which an employee reports an on-duty personal injury and also is assessed discipline related to the incident.
• Implementing a program to teach BNSF managers and labor relations and human resources professionals about their responsibilities under the FRSA as part of their annual supervisor certification.
The railroad also has agreed to make settlement offers in three dozen cases in which an employee filed a whistleblower complaint with OSHA claiming harm from one or more of the above policies.
“Ensuring that employees can report injuries or illnesses without fear of retaliation is crucial to protecting worker safety and health,” added Dr. Michaels. “If employees do not feel free to report injuries or illnesses, the employer’s entire workforce is put at risk because employers do not learn of and correct dangerous conditions that have resulted in injuries.”
BLET National President Dennis R. Pierce hailed the accord as a significant victory for BLET members and all rail workers. “We have worked closely with Dr. Michaels on problems involving this Carrier and others,” Pierce said. “Dr. Michaels and his team have distinguished themselves with this accord, and are to be congratulated. This is a home run for all railroad workers.
“It is also noteworthy that the Carrier stepped up to the plate and agreed to these long-overdue reforms,” Pierce added. The National Division will continue to work with OSHA so that we can leverage today’s accord from property to property for the benefit of each BLET member.”
OSHA reports that it has received over 1,200 whistleblower complaints by railroad workers between August 2007 and September 2012, which is higher than for all other whistleblower protection statutes enforced by the agency, except one. In addition, the agency says that over 60% of rail worker whistleblower complaints allege retaliation for reporting an on-the-job injury.
Click here to read, print or download the OSHA–BNSF accord.