For big railroads, a carload of whistleblower complaints

By Stuart Silverstein and Brian Joseph


Locomotives at the BNSF Railway Locomotive Maintenance Inspection Terminal in the Argentine rail yard in Kansas City, Kan.
Locomotives at the BNSF Railway Locomotive Maintenance Inspection Terminal in the Argentine rail yard in Kansas City, Kan.

As both a veteran railroad worker and union official responsible for safety, Mike Elliott became alarmed when he learned of trouble-plagued train signals in his home state of Washington.

Signals, he said, at times would inexplicably switch from red to yellow to green – potentially creating confusion that could lead to a crash. Elliott raised that and other signal issues repeatedly with his managers at BNSF Railway Co. But eventually, Elliott concluded that “these guys are running me around in circles.”

So Elliott, 57, of Tacoma, Wash., pressed his concerns with the Federal Railroad Administration, summarizing the matter in a January 2011 letter. The FRA investigated, and discovered 357 safety violations, including 112 signal system defects.

Speaking up for safety, though, only made matters worse for Elliott at BNSF, where he already had clashed with managers. Within weeks the company fired Elliott from his job as a locomotive engineer – an act that a federal jury this summer ruled was illegal retaliation by BNSF against a whistleblower.

The June 30 decision by the Tacoma jury, which awarded Elliott $1.25 million but is being appealed, spotlights the unjust punishment that critics say sometimes is meted out to railroad workers who report injuries or safety problems. These critics, including plaintiff lawyers and union officials, say the harsh treatment reflects old, hard-line management tactics that persist in corners of the industry.

Under the 22 federal whistleblower laws administered by the Occupational Safety and Health Administration, American workers who disclose hazards or engage in other “protected activity” are shielded against retaliation by their employers. The protected activities vary by industry, but include reporting injuries, disclosing the misuse of public funds and refusing to perform dangerous tasks that would violate safety rules.

OSHA protection covers, among many others, public transit employees, nuclear plant operators and, since 2007, railroad workers. Yet despite the broad safeguards for railroaders – or perhaps partly because of that – complaints of illegal retaliation abound in the industry.

From October 2007 through June 2015, OSHA figures show, railroad workers filed more than 2,000 retaliation complaints, although the pace has slowed lately. Among the top 10 targets of complaints over the period, seven were railroads, led by the two largest U.S. railroads, BNSF (409 complaints) and Union Pacific (360).

OSHA investigators and Labor Department administrative law judges repeatedly have upheld complaints against the railroads, more than half of which involve illegal retaliation against workers who report personal injuries.

In one such case an administrative law judge in 2013 ruled against Union Pacific, declaring: “The actions by Union Pacific have been so egregious in this case, and Union Pacific has been so openly blatant in ignoring the provisions of [federal law], that I find punitive damages are necessary to ensure that this reprehensible conduct is not repeated.”

In January of that year, BNSF, without admitting wrongdoing, signed an unprecedented accord with OSHA after the federal agency alleged that several of the company’s policies discriminated against injured employees.

Officials of the Association of American Railroads, the leading industry group, declined to be interviewed for this story. Instead, the AAR issued a brief statement saying, “The safety of employees and communities along the nation’s 140,000-mile rail network remains a top priority for the entire industry and is taken very seriously.”

Union Pacific also refused interview requests. So did BNSF, which was created by the 1995 merger of Burlington Northern Inc. and Santa Fe Pacific Corp., and is now a unit of investor Warren Buffett’s Berkshire Hathaway Inc. However, in a statement after the jury decision in the Elliott case, BNSF said, “retaliation against safety complaints is contrary to how we operate and the training our people receive.” The company added that Elliott “was dismissed for unrelated rules violations.”

(On Oct. 1, the federal judge who heard Elliott’s case, Ronald B. Leighton, a Republican appointed by George W. Bush, rejected BNSF’s motion for a new trial. He ruled that the disciplinary proceedings against the former employee were “seriously flawed” and that BNSF executives “displayed personal animosity against Mr. Elliott.”)

The alleged violations defy a key intent of federal whistleblower laws: to encourage employees who discover possible hazards to come forward before an accident happens. The potential value of such an early warning system is underscored by the deadly passenger rail accidents and oil train wrecks in recent years.

Joseph C. Szabo, who headed the FRA from 2009 until this January, said industry supervisors often are under “immense pressure” to curb costs by moving trains quickly out of rail yards. That, in turn, translates into pressure on rank-and-file workers “to ignore safety protocols and to just get the damn train out of town.” That’s why, Szabo said, it’s “critically important” that railroad workers are “very comfortable in doing the right thing without any fear of retribution.”

Likewise, safety advocates say, the ability of workers to report injuries without jeopardizing their livelihoods is crucial in a field with many hazardous jobs. Railroads have relatively high rates of on-the-job fatalities – although the toll has fallen dramatically over the last three decades.

What’s more, injury totals may be substantially higher than reported. In 2012, amid widespread suspicion that railroads were undercounting injuries, in part by pressuring workers not to report them, the industry dropped its 99-year-old annual Harriman safety award, which was largely based on employee injury reports.

Railroad whistleblowers under federal law must first file complaints with OSHA; they can pursue their cases through conclusion with the agency or, if their issues haven’t been resolved, after 120 days they can opt out and take their cases to court.

In fact, both OSHA and federal juries over the past year have issued a string of big decisions against railroads in cases brought by whistleblowers.

Experts often trace railroad managers’ behavior to the way the industry emerged in the mid-19thcentury. Back then, many railroad officials came from the officer ranks of the Civil War armies. Szabo said railroads have embraced more enlightened practices over the past decade or so, but management still has elements of “a paramilitary structure, very much command and control.”

Critics still echo Congressional investigators who in 2007 found that railroad companies, along with federal regulators, are “more oriented toward assigning blame to a single individual, without a thorough examination of the underlying causes that led that single individual to commit an error.”

In part, the hard-nosed culture reflects an effort to cope with the inherent dangers of rail transportation. “Small screw-ups can sometimes lead to somebody getting killed,” said Mark Aldrich, author of the 2006 book, “Death Rode the Rails.”

Safety has improved substantially in recent decades, Aldrich and other experts say, but the pressure on middle-managers to move as quickly as possible while also holding injuries to a minimum still creates incentives to ignore or conceal mishaps. “I don’t think this is a problem that’s going to go away,” Aldrich said.

Defenders of the industry say the volume of whistleblower cases isn’t a good barometer of actual wrongdoing because the discipline in dispute often stems from violations by the employees that are completely unrelated to their injuries.

“In many cases, the [employee’s] argument is simply, ‘Well, the railroad managers didn’t like the fact that I reported my injury so they were looking for an excuse to get me,” said James Whitehead, a Chicago management lawyer who has represented railroads.

Experts say much of the worker litigiousness stems from a 1908 law that excluded railroad employees from state workers compensation systems. Instead, it required them to go to court if they wanted to seek compensation for on-the-job injuries. That created a strong market for personal injury attorneys who specialize in railroad litigation. And those lawyers were quick to file whistleblower complaints after Congress in 2007 and 2008 modified the Federal Railroad Safety Act, adding anti-retaliation measures for rail workers.

Elliott, a former chairman of the Washington legislative board of the Brotherhood of Locomotive Engineers and Trainmen union, won an important round in court but expects a drawn-out appeals process. In the meantime, he has decided against seeking reinstatement to his job at BNSF. Instead, he is working these days as a lobbyist and spokesman for the union. The role is crucial, he says, because his former co-workers at BNSF need someone to speak out about safety issues.

“The culture and the workplace fear of reporting injuries or safety problems hasn’t changed, Elliott said. “Our members are still afraid.”

FairWarning ( is a nonprofit news organization based in Los Angeles that focuses on public health, safety and environmental issues.