BNSF must reinstate injured conductor

Labor orders back pay, damages, lawyer fees for worker

By Gordon Oliver, Columbian Business Editor

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BNSF Railway must reinstate a Vancouver-based train conductor who was injured in 2010 and pay the conductor $536,063 in back pay, damages and attorney’s fees, based on a federal investigation which found the railroad retaliated against the unnamed employee after he reported a knee injury, the U.S. Department of Labor said Wednesday.

A spokesman for BNSF said the railroad would appeal the decision.

The Labor Department said BNSF filed disciplinary charges against the conductor after he reported the injury, which occurred in November 2010 while en route from Vancouver to Pasco. The employee filed a Federal Railroad Safety Act anti-discrimination complaint with the Labor Department’s Occupational Safety and Health Administration in February 2011, according to the Department of Labor statement. The federal agency said company officials fired him in August 2011 despite knowing that his injury report was protected by law.

Investigators from OSHA concluded that the railroad violated federal laws protecting whistleblowers. As a result, OSHA ordered the railroad to pay punitive and compensatory damages. It also said BNSF must rehire the employee and expunge his record of all charges and disciplinary action.

In response to a question, Department of Labor spokesman Leo Kay said the employee has been unemployed since the time he was fired from BNSF.

BNSF spokesman Gus Melonas said the railroad would appeal and request a hearing before the Labor Department’s Office of Administrative Law Judges, as allowed by law.

“Safe operation is BNSF’s highest priority for our people and the communities where we operate,” he said. “Adherence to rules and standards, including rules about train speed and train handling, are meant to keep people safe. Rules were not followed in this situation and safety was compromised as a result.” Melonas would not elaborate on the timing or details of the incident cited in his statement.

In its ruling, OSHA also ordered BNSF to conduct training for supervisors and managers on employee whistleblower rights and post a notice to employees of those rights.

Under federal law, employers may not retaliate against employees who raise legally protected concerns to the employer or to the government. Employees who believe that they have been retaliated against for raising those concerns or providing legally protected information may file a complaint for an investigation by OSHA’s Whistleblower Protection Program.