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Whistleblowers fired for raising safety concerns despite efforts to end practice of retaliation

OMAHA, Neb. (AP) — Hours before a train in Ohio’s Norfolk Southern derailed and caught fire in February, a judge ruled that a former railroad employee could continue a lawsuit alleging he had been harassed for years by executives who said he also pressed charges inspected many flaws in train cars and he changed jobs after reporting an injury.

Richard Singleton’s case against Norfolk Southern was settled for an undisclosed amount after the judge said he had enough evidence to go to trial on whether he had been penalized for reporting safety violations that caused trains in a railroad yard in Macon , Georgia, slowed down.

The settlement provided relief for Singleton but does little for residents near East Palestine, Ohio, who are concerned about potential health effects from the accident’s toxic fire. That derailment and others since sparked nationwide fears about rail safety.

Lawyers and unions representing railroad workers say there is an industry-wide pattern of retaliation against workers like Singleton who report safety violations or injuries. They claim that employees often run afoul of managers who don’t want to risk their bonuses, and retaliation discourages other employees from speaking out.

Rail safety has been in the spotlight since the Ohio derailment on Feb. 3, with Congress and regulators proposing reforms. But little has changed, apart from the railroad’s promise to install another 1,000 trackside detectors to detect mechanical problems and reevaluate their responses to alerts from those devices.

“Since Wall Street took over, railroads have put productivity before safety,” attorney Nick Thompson argued earlier this year on behalf of a laid-off engineer. He pointed to recent derailments in Ohio and Raymond, Minnesota. “People are being killed, cities are being evacuated, rivers are being poisoned, all in the name of profit.”

The railroad is working to eliminate such practices with policies that prohibit retaliation and numerous ways for employees fearing retaliation to report safety concerns, either directly to a manager or anonymously through an internal hotline.

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Statistics from the Occupational Health and Safety Administration show that the number of one-year whistleblower complaints against major railroad companies has fallen from the 218 reported in 2018 to 96 last year.

“I have zero tolerance for retaliation. And I made that very clear. And in fact, the culture we’re creating at Norfolk Southern is one of transparency and one where people are encouraged to raise their hands and say they have a problem,” said CEO Alan Shaw.

Other major rail companies, including BNSF, Union Pacific, CPKC, Canadian National and CSX, echoed that sentiment in statements, saying they encourage employees to report safety concerns.

Whistleblower cases represent a small portion of the workforce, which number more than 100,000 nationwide. But even a handful of cases can terrify employees and have a chilling effect on safety reporting.

Long before Mike Ratigan was fired from New York’s CSX last year after refusing to help circumvent federal safety standards or ignore train car flaws, he said he saw other employees being punished. Those disciplinary cases became a “deer’s head” for managers: a trophy that sent a clear message.

“It says if we can do it to him, we can do it to you,” Ratigan said.

OSHA says 793 whistleblower complaints were filed between 2018 and the end of July, with Norfolk Southern leading all railroads with 257. Union Pacific and CSX were not far behind with nearly 200 complaints each, while another 113 were reported to BNSF. Canadian Railways numbers are much smaller, in part because much of their operations are north of the border.

More than half of the complaints were dismissed after OSHA reviews. But that doesn’t tell the whole story, as some dismissed cases become federal lawsuits that could lead to multimillion-dollar awards against railroads. OSHA’s decisions are also subject to appeal, with 87 cases being settled before OSHA decided whether they were well founded.

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The Associated Press reviewed dozens of whistleblower cases and found a similar pattern. When not bound by confidential settlement agreements, former railroad workers discussed how managers didn’t want them to report too many safety violations because they would delay trains. Some ex-employees prevailed in court, but all faced tough battles against huge corporations with billions of dollars in annual profits and armies of lawyers.

Mike Elliott was fired in 2011 after going to the Federal Railroad Administration over safety concerns reported to him by other workers in his capacity as Washington State’s top safety officer with the Brotherhood of Locomotive Engineers and Trainmen union. The FRA responded with a special inspection that found 357 defects, angering its BNSF bosses.

One of his managers confronted Elliott in the parking lot and jumped on the hood of his car, claiming that Elliott hit him and tried to run him over. Elliott said he was cleared of those charges in a criminal case, but was eventually fired.

That began a years-long court case with numerous motions and a six-day trial before a jury awarded him $1.25 million and approved $500,000 in legal fees. After an appeal to the 9th Circuit, the railroad finally paid him in 2018.

“It’s an endless battle. They have the best lawyers. They have the best lobbyists and they have a lot of lobbyists. They have a lot of money, and you are against it.” Elliott said.

Dale Gourneau had a reputation as a “tenacious safety lawyer” who may have written more “bad order” tags detailing train car defects than anyone else in the railroad yard of Mandan, North Dakota, where he worked for 18 years.

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Gourneau urged his managers to stop barring employees from applying for BNSF bonuses for finding broken railroad car wheels. Not long after, he was written off for not properly stopping his ATV before crossing the tracks in 2019. A few months later, he was fired after the company claimed he broke the same rule a second time, though he claimed it was common practice to stopping a few meters before the tracks to avoid another set of tracks.

An administrative judge ruled this spring that Gourneau’s sentence was merely a pretext for his managers to fire him. The judge ordered BNSF to reinstate Gourneau and pay him $578,659 in back wages and fines.

BNSF is appealing, refusing to comment on specific cases.

For railroad inspector John Fulk, the situation got so bad that in 2011 he shot himself in the head in the parking lot of his workplace on a railroad lot in North Carolina Norfolk Southern. His widow successfully argued in court that after being berated by managers for marking too many cars for repair, Fulk committed suicide rather than face a disciplinary hearing and possibly shoot on trumped-up charges of sabotaging the train braking system.

Fouke’s case was allowed to continue because he had started the complaints process with regulators before his death. FRA investigators found numerous rule violations and his former colleagues told them that Fulk was repeatedly targeted by managers. But court documents say none of them would sign witness statements because they feared retaliation. Norfolk Southern settled in 2015.

“For complying with FRA regulations, Mr. Fulk was subjected to gross harassment, disciplinary threats and threats related to his employment from Norfolk Southern management,” wrote U.S. District Judge William Osteen. “While he reported these acts and omissions, Norfolk Southern never took any action to stop such treatment.”

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