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OSHA Reaches Accord with BNSF to End Whistleblower Retaliation

By Pottroff & Karlin LLC |

(Washington, DC – January 15, 2013)

The Warren Buffett Berkshire Hathaway-owned Burlington Northern Santa Fe Railway agreed Tuesday to an Occupational Safety and Health Administration command to restructure its policies of dealing with employee on-duty injuries under the requirements of the Federal Whistleblowers Protection Act.

Although the Federal Railroad Administration is responsible for enforcement of safety rules and regulations in most railroad environments, administration of the Whistleblower Act is under the exclusive authority of OSHA in all American workplaces.

Although in the agreement BNSF admitted no wrongdoing, a number of the Fort Worth, TX-headquartered railroad’s employee probationary and disciplinary policies and actions have been cancelled or significantly changed due to the OSHA agreement.

“This accord makes significant progress toward ensuring that BNSF employees who report injuries do not suffer any adverse consequences for doing so,” said David Michaels, assistant secretary of labor for occupational safety and health.

“It also sets the tone for other railroad employers across the U.S. to take steps to ensure that their workers are not harassed, intimidated or terminated…for reporting workplace injuries,” added the OSHA Chief.

“Employees play a critical role in ensuring the safety of themselves, their co-workers and the communities in which we operate,” said Mark Schulze, BNSF vice president of safety, training and operations support.

The settlement pertained only to BNSF, but U.S. Labor Dept. Spokeswoman Diana Petterson said that other railroads have policies in effect that discourage the reporting of injuries.

Among the terms agreed to by BNSF were that injuries would no longer play a role in determining a worker’s probationary period for serious rule violations, that a system that assigned disciplinary points to employees who were hurt on the job would be eliminated, that approximately 400 BNSF employees currently in a program that included safety counseling and training for on-the-job injuries would be removed from the program, that BNSF managers would receive better training in regard to their responsibilities under the Federal Railroad Safety Act, and that higher-level reviews would be initiated by BNSF upper management for caes involving BNSF workers who are disciplined after reporting an on-duty injury.

In addition, BNSF agreed to make settlement offers to three dozen BNSF employees who filed whistleblower complaints with OSHA alleging they were harmed by one or more of BNSF’s previous policies.

Petterson further indicated that “the complaints involved a number of work-related injuries resulting from train collisions, accidents in the rail yards, and cumulative trauma from many years of work.”

“OSHA was concerned with BNSF’s policies that treated injured employees differently than non-injured employees and could reasonably dissuade railroad employees from reporting injuries,” she concluded.


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