THE IMPACT OF RAILROAD INJURY,

ACCIDENT, AND DISCIPLINE POLICIES ON THE SAFETY OF AMERICA’S

RAILROADS

(110–84)

HEARING

BEFORE THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

OCTOBER 25, 2007

Printed for the use of the 

Committee on Transportation and Infrastructure

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THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE SAFETY OF AMERICA’S RAILROADS

THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE SAFETY OF AMERICA’S RAILROADS

THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE SAFETY OF

AMERICA’S RAILROADS

THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE

SAFETY OF AMERICA’S RAILROADS

THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE

POLICIES ON THE SAFETY OF AMERICA’S RAILROADS

THE IMPACT OF RAILROAD INJURY, ACCIDENT,

AMERICA’S RAILROADSAND DISCIPLINE POLICIES ON THE SAFETY OF

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38–568 PDF 2007

THE IMPACT OF RAILROAD INJURY,

ACCIDENT, AND DISCIPLINE POLICIES ON THE SAFETY OF AMERICA’S

RAILROADS

(110–84)

HEARING

BEFORE THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

OCTOBER 25, 2007

Printed for the use of the 

Committee on Transportation and Infrastructure

(

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JAMES L. OBERSTAR, Minnesota, Chairman 

NICK J. RAHALL, II, West Virginia, Vice 

Chair 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

ELEANOR HOLMES NORTON, District of 

Columbia 

JERROLD NADLER, New York 

CORRINE BROWN, Florida 

BOB FILNER, California 

EDDIE BERNICE JOHNSON, Texas 

GENE TAYLOR, Mississippi 

ELIJAH E. CUMMINGS, Maryland 

ELLEN O. TAUSCHER, California 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

BRIAN BAIRD, Washington 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

JULIA CARSON, Indiana 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

BRIAN HIGGINS, New York 

RUSS CARNAHAN, Missouri 

JOHN T. SALAZAR, Colorado 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

DORIS O. MATSUI, California 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio 

MAZIE K. HIRONO, Hawaii 

BRUCE L. BRALEY, Iowa 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A. ACURI, New York 

HARRY E. MITCHELL, Arizona 

CHRISTOPHER P. CARNEY, Pennsylvania 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

STEVE COHEN, Tennessee 

JERRY MCNERNEY, California 

LAURA A. RICHARDSON, California 

JOHN L. MICA, Florida 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

WAYNE T. GILCHREST, Maryland 

VERNON J. EHLERS, Michigan 

STEVEN C. LATOURETTE, Ohio 

RICHARD H. BAKER, Louisiana 

FRANK A. LOBIONDO, New Jersey 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

TED POE, Texas 

DAVID G. REICHERT, Washington 

CONNIE MACK, Florida 

JOHN R. ‘RANDY’ KUHL, JR., New York 

LYNN A WESTMORELAND, Georgia 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

(II)

(III)

CONTENTS Page

Summary of Subject Matter .................................................................................... v 

Total Accidents at a Glance, chart prepared by the Committee .......................... xvi

TESTIMONY 

Ackermans, Faye, General Manager, Corporate Safety and Regulatory Affairs, 

Canadian Pacific Railway .................................................................................... 70

Boardman, Hon. Joseph H., Administrator, Federal Railroad Administration, 

Washington, D.C. ................................................................................................. 7

Brown, David, Vice President and Chief Transportation Officer, CSX Corporation ........................................................................................................................ 70

Brunkenhoefer, James M., National Legislative Director, United Transportation Union .......................................................................................................... 38

Cook, David, Former CSX Locomotive Engineer .................................................. 38

Ehlenfeldt, Charles R., Former BNSF Conductor ................................................. 38

Grimaila, Robert, Senior AVP, Safety, Environment and Security and Chief 

Safety Officer, Union Pacific Corporation .......................................................... 70

Hamberger, Ed, President, American Association of Railroads ........................... 70

Haskin, Gregory, Former Union Pacific Conductor .............................................. 38

Joyce, Sherman, President, American Tort Reform Association ......................... 70

Jungbauer, William G., President, Yaeger Jungbauer and Barczak, PLC, Minneapolis, Minnesota ............................................................................................. 38

Knisely, Timothy, Former Norfolk Southern Conductor ...................................... 38

Schulze, Mark, Vice President of Safety, Training and Ops Support, Burlington Northern Santa Fe Corporation ............................................................. 70

Tolman, John, Vice President & National Legislative Representative, Brotherhood of Locomotive Engineers and Trainmen, International Brotherhood 

of Teamsters ......................................................................................................... 38

Wehrmeister, C.J., Vice President, Safety and Environment, Norfolk Southern 

Corporation ........................................................................................................... 70

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Altmire, Hon. Jason, of Pennsylvania .................................................................... 100

Costello, Hon. Jerry F., of Illinois .......................................................................... 101

Mitchell, Hon. Harry E., of Arizona ....................................................................... 103

Oberstar, Hon. James L., of Minnesota ................................................................. 107

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Ackermans, Faye ..................................................................................................... 113

Boardman, Joseph H. .............................................................................................. 139

Brown, David ........................................................................................................... 160

Brunkenhoefer, James ............................................................................................. 179

Cook, David F. ......................................................................................................... 188

Ehlenfeldt, Charles R. ............................................................................................. 200

Grimaila, Robert M. ................................................................................................. 223

Hamberger, Edward R. ........................................................................................... 238

Haskin, Gregory ....................................................................................................... 254

Joyce, Sherman ........................................................................................................ 259

Jungbauer, William G. ............................................................................................ 271

Knisely, Timothy ...................................................................................................... 680

Schulze, Mark .......................................................................................................... 693

Tolman, John P. ....................................................................................................... 710

Wehrmeister, Charles J. ......................................................................................... 726

Page

IV

SUBMISSIONS FOR THE RECORD 

Ackermans, Faye, General Manager, Corporate Safety and Regulatory Affairs, 

Canadian Pacific Railway:

Response to request for information from Rep. Brown of Florida ................... 95

Responses to questions from the Committee ..................................................... 128

Boardman, Hon. Joseph H., Administrator, Federal Railroad Administration, 

Washington, D.C.:

Response to question from Rep. Petri ................................................................ 12

Response to request for information from Rep. Oberstar ................................. 16

Response to question from Rep. Brown of Florida ............................................ 19

Response to question from Rep. Napolitano ...................................................... 21

Response to question from Rep. Napolitano ...................................................... 23

Response to question from Rep. Napolitano ...................................................... 26

Response to question from Rep. Napolitano ...................................................... 29

CSX Transportation Harassment and Intimidation Investigation, draft, Federal Railroad Administration ........................................................................... 154

Brown, David, Vice President and Chief Transportation Officer, CSX Corporation, responses to questions from the Committee ............................................. 172

Brunkenhoefer, James M., National Legislative Director, United Transportation Union, responses to questions from the Committee ............................... 185

Cook, David, Former CSX Locomotive Engineer, responses to questions from 

the Committee ...................................................................................................... 192

Ehlenfeldt, Charles R., Former BNSF Conductor, responses to questions from 

the Committee ...................................................................................................... 218

Grimaila, Robert, Senior AVP, Safety, Environment and Security and Chief 

Safety Officer, Union Pacific Corporation, responses to questions from the 

Committee ............................................................................................................. 229

Hamberger, Ed, President, American Association of Railroads, responses to 

questions from the Committee ............................................................................ 247

Joyce, Sherman, President, American Tort Reform Association, response to 

question from the Committee .............................................................................. 266

Jungbauer, William G., President, Yaeger Jungbauer and Barczak, PLC, Minneapolis, Minnesota:

responses to questions from the Committee ...................................................... 563

Federal Employers’ Liability Act: Issues Associated with Changing How 

Railroad Work-Related Injuries are Compensated, Report to the Chairwoman, Subcommittee on Railroads, Committee on Transportation and 

Infrastructure, House of Representatives, United States General Accounting Office ........................................................................................................... 575

Jerry J. Phillips, An Evaluation of the Federal Employers’ Liability Act, 

25 San Diego L. Rev. 49 (1988). ...................................................................... 651

Jerry J. Phillips, Symposium: Future Prospects for Compensation Systems, 

52 Md. L. Rev. 1063 (1993). ............................................................................. 665

Letter to Rep. Oberstar ....................................................................................... 672

Supplemental statement ...................................................................................... 674

Knisely, Timothy, Former Norfolk Southern Conductor, responses to questions 

from the Committee ............................................................................................. 685

Schulze, Mark, Vice President of Safety, Training and Ops Support, Burlington Northern Santa Fe Corporation, responses to questions from the 

Committee ............................................................................................................. 703

Tolman, John, Vice President & National Legislative Representative, Brotherhood of Locomotive Engineers and Trainmen, International Brotherhood 

of Teamsters, responses to questions from the Committee .............................. 716

Wehrmeister, C.J., Vice President, Safety and Environment, Norfolk Southern 

Corporation, responses to questions from the Committee ................................ 750

ADDITIONS TO THE RECORD 

Grant L. Becker, letter to the Committee ............................................................. 764

Chris Belanger, BNSF Railroad Engineer, letter to the Committee ................... 771

State of Minnesota, Office of the Attorney General, Lori Swanson, Attorney 

General, letter to Rep. Oberstar ......................................................................... 773

Utah Legislative Board of the Brotherhood of Locomotive Engineers & Trainmen, Jeff Worthington, Chairman, letter to the BLET, EEO Department ..... 775

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(1)

OVERSIGHT AND INVESTIGATIONS HEARING 

ON THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE 

SAFETY OF AMERICA’S RAILROADS 

Thursday, October 25, 2007

HOUSE OF REPRESENTATIVES

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

Washington, DC. 

The Committee met, pursuant to call, at 10:05 a.m., in Room 

2167, Rayburn House Office Building, the Honorable James Oberstar [Chairman of the Full Committee] presiding. 

Mr. OBERSTAR. Good morning. The Committee on Transportation 

and Infrastructure will come to order. Apologies from the Chair for 

being delayed. Unfortunately, people just stop in to a Member’s office, and you can’t turn them away. 

This morning, we gather for a very important hearing, a very 

critical examination of rail safety, and we do so a week after the 

House passed, by a vote of 377 to 38, the Federal Rail Safety Improvement Act, another historic act from this Committee with enormous, as the vote shows, bipartisan support to enhance safety in 

the rail sector, increase the number of rail safety inspectors and 

enforcement personnel. 

It has been a long time in coming. Only once in the last 100 

years has there been a significant amendment to and update of the 

Rail Safety Act of 1907. 

Well, the issue we consider today is that of railroad injury, accident, and discipline policies. The accuracy of the databases for rail 

safety has been criticized by a number of government reports over 

the years. Reports have documented a long history of under-reporting of accidents, under-reporting incidents, of noncompliance with 

Federal regulations; and under-reporting of rail injuries is significant because employees frequently report that harassment of those 

who do report incidents, being hurt on the job, is a common practice in the rail sector. 

One of the reasons for this pressure is the 1908 law itself, the 

Federal Employers Liability Act, and under-reporting or withholding of reporting makes accident statistics look better than they 

really are, but it denies the public, it denies regulators, and it denies the Congress a full understanding of the nature and extent of 

safety problems in the rail industry, and that is vital to improving 

safety. And it is not right for people on the job to be told you 

shouldn’t report this injury; maybe you can just sit here in the 

health room, maybe you just need an aspirin or maybe you just 

2

need a little time, and don’t put this on the report because then 

it becomes an accident, and then that looks bad for the railroad. 

Most often, these incidents happen at inconvenient times: late 

hours, during bad weather. 

I recall my own experience working in the mine, sampling ore in 

the night shift on top of a rail car. We had to crisscross the car, 

take little samples in an X, put them in a canvass bag, throw the 

bag over, and then jump to the next rail car and go on and sample 

ore on it, and then send that ore sample to the lab so it could be 

analyzed before the train was dispatched to Lake Superior for shipping. 

And it happened one of those nights, night shift, about 1 a.m., 

2 a.m. It was raining, and as I was making the move from one car 

to the next, the ore slipped out from under me and I fell 15 feet 

and landed right between two ties; smacked my head. Fortunately, 

I missed a rock that was right nearby that would have gone into 

my temple. Some of my political opponents of the years thought 

that probably would have been a good idea. 

But I sat there in the dry, as we call it, for quite some time. 

There wasn’t a car to take anybody injured to treatment, to the 

hospital, to go to town. Eventually, a first aid person came and 

looked me over and said, well, tomorrow morning you go check in 

at the hospital. It was reported under the mining laws as an on 

the job injury. 

I grew up in a mining family. My father was chairman of the 

safety committee in the underground mine. Safety, to me, was 

something that was an everyday matter; required everyday vigilance. I never forget my father coming home midday, white as a 

sheet. The mine collapsed; the drift that he was working in collapsed. He had thrown his two coworkers out the mouth of the drift 

when he heard the timbers cracking, and the ore stopped just at 

his shoulders. It took four hours to dig him out. But for weeks, as 

chair of the safety committee of the underground mine, he had 

complained to the company that they were using green wood timbers, they weren’t putting seasoned wood in the drifts to hold up 

the ceiling of the drift. 

That was just one incident, but when you are the victim or when 

you see the victims, it has a different effect, a lasting effect. 

So when I began hearing reports, which was a few years ago, 

about these matters, I said this is serious stuff: intimidation, 

threats on the job; some not so subtle, some perhaps subtle. So I 

directed the Oversight and Investigation Staff to get out in the 

field and go out and talk about injury accident reporting. Since 

then, we have had a floodgate of e-mails of alleged harassment of 

railroad employees. Some are cases where employees were cautioned by managers not to file an injury report in order to avoid 

future problems or disciplinary action. We have 200 individual 

cases with documentation of alleged management intimidation following injury reports, and they have been provided to the Committee. 

We have reviewed the most recent FRA comprehensive accident 

incident reporting and recording audits. Those audits, conducted at 

major railroads. FRA found 352 violations of Federal law for underreporting in the largest category: failure to report employee injuVerDate 0ct 09 2002 16:32 Mar 05, 2008 Jkt 000000 PO 00000 Frm 00024 Fmt 6633 Sfmt 6633 P:\DOCS\38568 HTRANS1 PsN: JASON
3

ries. That is only the number of under-reported injury events that 

FRA was able to identify. Maybe just the tip of the iceberg. 

The associate administrator of FRA for safety said she believed 

that supervisory pressure on employees to not report injuries is a 

significant issue. When the agency receives complaints, FRA does 

investigate reports. But the associate administrator maintained 

that FRA simply does not have the resources, meaning people, to 

investigate the extent of the harassment issue. If our legislation, 

H.R. 2095, is enacted, we will see an increase in personnel; FRA 

will have the staffing they need to follow up. 

Many railroads have management programs and policies that 

may give the benefit of the doubt and unintentionally inhibit or intimidate employees into not reporting injuries on the job. The result is many injury accidents may never be reported. We have seen 

a number of cases—I have looked at the docket myself—where railroad managers sometimes bring pressure on employees, one, counseling don’t file that injury report, it is in your best interest not 

to do this; finding, secondly, employees exclusively at fault for their 

injuries: you are the cause, you are the fault of your own problem; 

and, third, subjecting employees who report an injury accident to 

increased monitoring and performance testing on the job. I know 

how intimidating that can be in the mines, in the shops. I have 

seen it. And we can’t allow this to continue to happen. 

We have to find a way to have a more open, non-punitive environment for reporting of rail incidents and accidents, and an environment where railroad workers feel free to come forward and report. That will be a subject of inquiry in the course of this hearing 

today. We are going to hear some very startling and dismaying testimony, but it has to be laid out in the public, and then we have 

to move ahead to address it in a constructive manner. 

With that, I withhold further comment and yield to the distinguished gentleman from Pennsylvania, Mr. Shuster, our Ranking 

Member. 

Mr. SHUSTER. Thank you, Mr. Chairman. I first want to start off 

by congratulating you and Chairwoman Brown for the passage of 

the Rail Safety Act, and thank you for working with us. We didn’t 

get everything we wanted in there, but we certainly know we have 

another opportunity. I understand that the Senate is trying to 

work through a rail safety bill, and hopefully we will take a conference——

Mr. OBERSTAR. If the gentleman would yield. 

Mr. SHUSTER. Certainly. 

Mr. OBERSTAR. I want to express my appreciation to the gentleman for his thoughtful manner in approaching this issue. We 

had many, many hours of discussion, and constructive discussion, 

and the gentleman came forward with thoughtful recommendations 

for changes in the legislation, and the end result was, I think, a 

very good bipartisan product. 

Mr. SHUSTER. Thank you very much. And, again, congratulations, we look forward to seeing that Senate bill come forward and 

moving through the process. 

Today’s oversight hearing on rail safety is a subject that has 

been examined many times in the past couple of years by this Congress and the last Congress, and each time we found that our rail 

4

safety programs have made significant positive impact and 

progress. The railroads have a large presence in my home State of 

Pennsylvania and safety is a top priority for me. We are coming off 

a record year for safety in the rail industry, and I certainly, every 

chance I get, like to point out, especially in a public forum, some 

of those statistics. 

In 1996 there were 33 railroad employees killed. In 2006, that is 

down to 16; 16 too many, but still is an improvement, significant 

improvement. In 1996, 25 employee deaths were involved in train 

accidents; in 2006 there were only 6. Passenger trains carried 397 

million people in 1996 and 12 passengers were killed, and in 2006 

almost 550 million passengers and only 2 fatalities. 

I cannot say enough. In 2006, it was the best year yet, but there 

is always room for improvement and, of course, that is what we 

want to focus on today and as we move forward. 

Today’s hearing will focus on allegations that railroad safety policies may have unintended consequences, such as harassment and 

intimidation of employees who report injuries on the job. Working 

through these issues, coming to better understand FELA, which, as 

the Chairman pointed out, was passed in 1908, 100 years ago, it 

appears to me that the FELA, Federal Employees Liability Act, 

doesn’t encourage disputes being settled in a positive way, but, 

from what I can tell, it encourages litigation. It encourages, when 

there is a problem, both sides get attorneys and we go to war. 

And I think we need, as the Chairman pointed out, a more open 

and non-punitive process that will encourage cooperation. All types 

of businesses across this Country and across the world, when we 

are cooperating, finding problems, finding solutions, not sitting in 

a courtroom, enriching attorneys, but enriching the business by 

making it safer for employees, by improving the quality of the 

product or the quality of the service that we provide, I think that 

is what we need to focus on and, again, stay away from the courtroom and stay away from hiring attorneys that are just going to 

go out there and battle one another, instead of, as I said, sitting 

down the table, figuring out a positive solution. 

In 1997, the FRA implemented a new regulation which required 

each railroad to adopt and comply with a written internal control 

plan. This plan bans the practice of intimidating or harassing employees who wish to file an injury claim or seek medical treatment. 

My understanding is that the railroads have disciplined or even 

fired managers for violating this policy. When you have hundreds 

of thousands of people involved on both sides, I am certain situations like these occur, but I don’t believe, from what I can see, that 

it is widespread on either side. I think people with good intentions 

are out there trying to make sure that, whether they are labor, 

whether they are management, trying to improve the safety in the 

rail system. 

Additionally, hefty fines and civil penalties are placed to discourage such harassment. In fact, the recently enacted 9/11 bill imposes 

$250,000 in punitive damages on railroads who intimidate or harass injured workers. As a matter of full disclosure, it is important 

for me to point out that the majority staff will likely reference an 

FRA report today that is still in draft form, and it should be treated as such during questioning. 

5

Finally, I want to point out, in full disclosure, I am not an attorney, thank goodness. My brother is an attorney, so I take full liberty to bash attorneys whenever I get the opportunity. I feel that 

gives me the right, if I have a family member that is an attorney, 

which I am sure turnabout is fair play; I am the politician, so he 

can bash me from time to time. 

But I am troubled by the Committee’s decision to call certain witnesses who have litigation pending in the courts. This Committee 

has always avoided taking an action which might appear to prejudice litigation, and that is exactly where we are heading today, I 

am afraid. We have two witnesses who are parties to pending litigation against the railroads, and another of our witnesses is a lawyer who is suing the railroads. So I would ask our Members to 

please keep this in mind when they are questioning these witnesses today. 

With that, I look forward to the testimony today and I thank you, 

Mr. Chairman, for holding this hearing. 

Mr. OBERSTAR. Thank you, Mr. Shuster. Your last point about 

whether it is appropriate or just raising the question about witnesses who are involved in litigation, it is not at all a common fact, 

regular practice of the Committee over the many years that we 

have conducted investigations and oversight. One of my very first 

hearings as Chair of the Investigations and Oversight Subcommittee was on Galaxy Airlines crash, a fatal crash in Reno, Nevada, in which 93 people from the State of Minnesota were killed; 

one survivor. The matter was under investigation, there were lawsuits pending. We held a hearing on the safety issues, the safety 

implications of that crash. We held hearings on TWA 800 while 

lawsuits were pending and while the NTSB investigation was underway. Careful to separate those matters that were under litigation and investigation, and make sure that witnesses were not 

pressed to answer questions that were the subject of litigation. We 

held hearings on the Value Jet accident. In fact, that was a Full 

Committee hearing in which we had witnesses shielded from public 

view. 

So, we are being very careful on the line dividing courtroom testimony from a matter that is appropriately the subject of safety inquiry. 

We do have a vote in progress. We have probably 5 minutes left. 

Ms. Brown, the Chair of our Rail Subcommittee and a vigorous 

advocate for rail safety and for railroads in general and rail workers. 

Ms. BROWN. Thank you, Mr. Oberstar, for your leadership on this 

Committee and also on improving safety in all transportation sectors. 

I want to thank you, Mr. Shuster, for your leadership, along with 

Mr. Mica, in passing the railroad safety bill. 

The Railroad Subcommittee has concentrated on safety in the 

rail industry, and that includes the safety and well being of railroad employees. The railroad safety bill will address many of the 

issues that we are going to discuss today. The bill that passed overwhelming the House last week had seven provisions that would improve the reporting of railroad accidents: it would require the Federal Railroad Safety Administration to conduct audits of railroads 

6

to ensure that they are fully reporting all accidents and incidents 

to the national accident database; it increased the maximum penalty for failing to report an accident; it makes it unlawful for anyone to knowingly interfere with or obstruct an investigation by the 

Secretary of Transportation or the National Transportation Safety 

Board; it also doubles the number of Federal safety inspectors who 

monitor the railroad compliance with Federal standards. 

I have talked to CEOs and senior management of all of the major 

railroads, and I know that they do not support or condone employee intimidation in any form, but that message needs to be 

made clear to every employee in the company, including those in 

the field. There may also be a need to reconsider some of the company’s programs that encourage under-reporting of accidents, while 

still ensuring that employees have the right to make sure that 

workers are following the rules and doing their job properly. 

We also need to consider the inherent problem that is caused by 

a faulty base compensation system and need to look at improving 

a system that now seems to pit management against employees. 

Nobody wants to see people get hurt on the job, and an injury 

should not be compounded by a hostile work environment. 

I look forward to hearing from today’s panelists on ways that we 

can create a culture of safety in the railroad industry so that both 

the management and workers can safely handle the significant increased workload that is predicted for America’s railroads. 

I yield back the balance of my time. 

Mr. OBERSTAR. I thank the gentlewoman for her statement. 

We have just two minutes remaining on this vote. The Committee will recess and reconvene as quickly as possible after this 

vote. 

[Recess.] 

Mr. OBERSTAR. The Committee will resume its sitting. When we 

recessed for the vote, Ms. Brown was concluding her statement, 

and the Chair recognizes the Chair of the Rail Subcommittee, Ms. 

Brown. 

Ms. BROWN. Thank you, Mr. Chairman. I think I need to just repeat some of the things that I said to reiterate. First of all, I think 

I said that since we passed the railroad safety bill and it passed 

by a large measure and the Senate is beginning to work on their 

bill, many other problems that are inherent with railroad reporting 

and safety I think have been addressed in the railroad safety bill. 

But I think there are a couple of aspects of this program that I 

want to repeat what I said earlier. 

One, I talked to all of the CEOs and senior management of all 

of the major railroads, and I know that they don’t support or condone employee intimidation in any form. But that message needs 

to be made clear to every employee in the company, and, in particular, including those that work in the field. 

We also need to consider some companies’ programs that encourage under-reporting of accidents, while still ensuring that employees have the right to make sure that workers are following the 

rules and doing their jobs properly. 

We also need to consider the inherent problem that is caused by 

a faulty base compensation system and need to look at improving 

7

a system that now seems to pit management against employees, 

and I say may need to look at. 

No one wants to see people get hurt on the job, and injuries 

shouldn’t be compounded by a hostile work environment. I look forward to the hearing today and the panelists, and I have questions 

for all of them, that we can create a culture of safety in the railroad industry so that both the management and workers can safely 

handle the significant increased workload that is predicted for 

American railroads. 

And I yield back the balance of my time. 

Mr. OBERSTAR. Mr. McNerney? 

Mr. MCNERNEY. Thank you, Mr. Chairman. First of all, I would 

like to say that the railroad business is in my family; my grandfather was a railroad engineer, I have cousins that work in the industry. So I am keenly interested in the outcome of this hearing 

and seeing that railroad employees have a culture of safety. It is 

true that every side should be aligned on the safety issue. It is in 

everyone’s interest that safety be maintained and that injuries be 

minimized. So we can look at this objectively and find a way forward. 

I look forward to the testimony and thank the Chairman for his 

leadership on this issue. 

Mr. OBERSTAR. I thank the gentleman and appreciate his personal connection to the subject matter; it always adds a dimension 

of significance and heavy weight. Thank you. 

Does the gentleman from Wisconsin have a comment to make? 

I would ask unanimous consent to include in the record, at the 

conclusion of my opening statement, the letter from the Attorney 

General of the State of Minnesota, Lori Swanson. Without objection, so ordered. 

She concludes: ‘‘All can agree that railroads should not deny 

prompt medical attention to injured rail workers and should not 

discipline or otherwise harass and intimidate them. While it is my 

strong belief that our state law is not preempted, I nevertheless 

urge the Congress to act to ensure that rail workers throughout the 

nation, not just in Minnesota, are provided prompt medical care 

and not subjected to harassment and intimidation.’’ And this follows several paragraphs describing the State’s action in the legislature enacting protective legislation and pursuing the matter in lawsuits in Federal District and Circuit Court. 

Now we will begin, as we will do with all witnesses, Mr. 

Boardman, if you would rise and raise your right hand. Do you solemnly swear the testimony you will give before the Committee will 

be the truth, the whole truth, and nothing but the truth, so help 

you God? 

[Witness answers in the affirmative.] 

Mr. OBERSTAR. Thank you. Please begin. 

TESTIMONY OF THE HONORABLE JOSEPH H. BOARDMAN, ADMINISTRATOR, FEDERAL RAILROAD ADMINISTRATION, 

WASHINGTON, D.C. 

Mr. BOARDMAN. Thank you, Mr. Chairman. Mr. Petri, Mr. 

McNerney, thank you, all the Members today. The FRA appreciates 

the efforts of the Committee in addressing this issue and in develVerDate 0ct 09 2002 16:32 Mar 05, 2008 Jkt 000000 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 P:\DOCS\38568 HTRANS1 PsN: JASON
8

oping rail safety reauthorization proposals in H.R. 2095, the Federal Railroad Safety Improvement Act of 2007. I look forward to 

working with you on these proposals as the legislative process 

moves forward. 

Currently, each railroad carrier is required to file a monthly report with the Secretary of Transportation, under oath, listing all 

accidents and incidents resulting in injury or death to an individual or damage to equipment or roadbed arising from the carrier’s operation during the month. The carrier is required to describe the nature, cause, and circumstance of each accident or incident included in the report. 

The Secretary’s enforcement authority under the Act includes the 

power to impose civil and criminal penalties. The penalty for a violation ranges from $550 to $27,000. The Act does not address harassment or intimidation of railroad employees. 

Both the Accident Reports Act and the Federal Railroad Safety 

Act of 1970 confer broad powers on the Secretary of Transportation 

to implement the provisions of the Accident Reports Act, including 

the authority to issue regulations and investigate accidents or incidents resulting in serious injury to an individual or to railroad 

property. 

The reporting requirements of Part 225 concerning an employee 

injury are triggered generally when an event involving the operation of a railroad results in an employee dying, requiring medical 

treatment beyond first aid, missing at least one day of work, being 

placed on restricted work activity, receiving a job transfer, or losing 

consciousness due to the injury. 

The regulations also require that railroads keep records of socalled ‘‘accountable injuries.’’ These injuries are defined as any condition not otherwise reportable of a railroad worker which condition causes or requires a worker to be examined or treated by a 

qualified health care professional. 

FRA’s current accident reporting regulations prohibit railroad actions calculated to discourage or prevent proper medical treatment 

or reporting of an accident/incident to FRA. While other actions of 

a railroad or railroad official may constitute harassment or intimidation, it is important to note that only actions calculated to prevent proper medical attention or accident reporting are violations 

of FRA regulations. 

But there are other provisions, and some of them were identified 

this morning, other legal protections. Department of Labor is the 

900-pound gorilla on this issue, really, not the FRA. Discriminating 

against an employee for, among other things, notifying or attempting to notify the railroad carrier or FRA of a work-related personal 

injury or work-related illness of an employee is prohibited under 49 

U.S.C. 20109, as amended, by Section 1521 of the Implementing 

Recommendations of the 9/11 Commission Act of 2007. The employee whistleblower rights are enforced under the procedures set 

forth by the Department of Labor, and the FRA and the Department of Labor have already begun the process of coordination with 

respect to the administration of this newly amended Executive 

Branch function. 

As I said earlier, the issue of harassment and intimidation occurs 

against a much broader background than the narrow scope within 

9

which FRA works to promote reporting of accidents and incidents. 

The DOL, and before it the Railway Labor Act Boards of Adjustment, works on those complex issues. Rail labor relationships are 

complex and often involve conflicts, and the conflicts are, for the 

most part, subject to the jurisdiction of those courts and the Labor 

Board Adjustment. 

In order to create a culture of risk reduction, FRA is working to 

establish programs that will encourage employees to fully disclose 

information regarding precursors to accidents or near accidents 

without fear of blame. Such programs will allow FRA to gain a 

more complete picture of how and why accidents occur and, thus, 

identify and reduce risks before accidents occur. 

To date, two FRA-led demonstration projects, in cooperation with 

the Union Pacific Railroad Company, have been launched in an effort to support a positive change in a safety culture of the railroad 

industry: the Close Call Confidential Reporting System (C3RS) and 

the Clear Signal for Action reporting system. The FRA will remain 

aggressive in its efforts to promote accountability and will seek to 

plant the seeds of cooperative programs that may help reduce risk, 

while engendering greater trust in the railroad industry. 

Thank you very much. 

Mr. OBERSTAR. Thank you very much, Mr. Boardman, and my 

appreciation to you for those initiatives that the FRA is undertaking. They seem to be moving in the right direction. 

You are familiar with the points system. What are your thoughts 

about the point system and risk ranking indices? 

Mr. BOARDMAN. There are different systems among the railroads. 

I think that is what you are referring to. Or is it more about 

the——

Mr. OBERSTAR. No, that is exactly right. 

Mr. BOARDMAN. Okay. I think each railroad has the intent to try 

to figure out a way that it can provide the incentives that would 

provide a better record of safety and reward employees. Some of 

those kinds of systems that railroads put together—and I think 

they will freely admit—have unintended consequences of difficulty 

for those employees in terms of how they interpret and what happens to those employees as peer pressures and other kinds of concerns raise their head. 

Mr. OBERSTAR. Well, if a railroad has a ranking system and the 

employee builds up points over a period of time, eventually he becomes a problem employee in the mind of the railroad, and the 

point system, from what we have seen, from the documents—and 

by no means are every incident reported, but a very good sampling 

of incidents—do not take into account contributing factors. It is a 

fault system. You had an accident? It is your fault. Now you have 

a choice: report it or not report it. If you don’t report it, then you 

don’t get points against you. Have you looked at this? 

Mr. BOARDMAN. I don’t understand the intricacies of what you 

are asking. I mean, I would have to look at the specifics of the 

point system that we might really be talking about here. I know 

that when you determine whether there is a fault of an employee 

or whether an accident occurred, there is no question that an accident occurs. Is it a fault of an employee or is it a system that 

10

doesn’t have a fault attached to it I think is a common question 

that all operators look at. 

In other words, in my own background, not rail, as a bus operator and oftentimes you would have bus operations where you 

would line all the buses up at one time, and when those buses 

began to leave that location so that everybody could transfer at the 

same time, one of the most serious accidents that could occur is a 

rear bus running into a front bus, because what it told you immediately was the driver of the rear bus really wasn’t cleared to go 

forward; no different than somebody trying to merge onto an expressway. 

So there was always a debate, and I think one of the difficulties 

here that we need to think about is as the railroads themselves try 

to reduce risk in their operations—and we think that they really 

ought to try to reduce that risk, one of the severest judges that I 

had when I had a safety committee were the employees themselves, 

and I think that is a critical element of any risk program, any 

points program, any of the things that the railroads do. There has 

to be a structure to how they analyze those accidents; there have 

to be regular data reviews themselves; and there has to be that 

critical part, which is the employee input. 

Mr. OBERSTAR. Well, you are getting on to another issue that I 

think we need to explore in this inquiry in the course of this hearing, and that is individuals, individual incidents, and systems. Do 

you think there is, in the rail sector, a culture preoccupied with 

blame, with fault, and with individuals, rather than one that reviews the system within which safety should be addressed? 

Mr. BOARDMAN. I think, today, my observation is that two or 

more conditions exist in the railroad industry: the one you describe, 

but, paradoxically, the railroads that are becoming more progressive and understand the need for this employee input are also understanding that there needs to be, first and foremost, a focus on 

the individuals, the employees, the people that are impacted in the 

accident itself, and the third parties that pay the price of being either evacuated from a particular accident location or that are impacted at a grade crossing. 

And there needs to be an unequivocal understanding in that company that that comes first, and then the occurrence of an investigation to find out what really occurred; and I think that does not 

exist in the entire railroad industry. You have differences among 

railroads, differences among managers, but, today, I think there 

are real indications—and I won’t single any one in particular out, 

but one of the women you will have up here later I was particularly 

impressed with in the most recent review of their railroad and how 

they are really rethinking this culture of safety. 

Mr. OBERSTAR. You are quite right on that and I have been impressed with that particular railroad and their approach to the 

subject, and you touch on something that is important: the culture 

of safety. With every mode of transportation, safety begins in the 

boardroom, in the corporate boardroom. Safety is not the primary 

responsibility of the Federal Railroad Administration or of the FAA 

or the Federal Motor Carrier Safety Administration. Safety is the 

primary responsibility of the company itself. And the reason we 

11

have government oversight agencies is to keep them honest and to 

help employees train and develop their own culture of safety. 

When the Steelworkers Union was formed in 1937, one of their 

ten points was safety on the job. The conditions in the steel mills 

weren’t safe. 

I see the bells have rung. We are going to have this action 

throughout the day, until final consideration of the pending legislation, so I will withhold further questions at this point and yield to 

Mr. Petri. 

Mr. PETRI. Thank you very much, Mr. Chairman. 

Thank you for your testimony, Mr. Boardman. I wonder, based 

on your experience not only in your current job but in the transportation industry and in other positions, if you have any basis to indicate how the railroad industry stacks up with other modes of transportation so far as concern about safety or actual safety records are 

concerned. Obviously, they are not completely comparable because 

I guess the operating conditions are different between a truck or 

a railroad or an airplane and so on, but could you comment on how 

it stacks up with other transportation sectors? 

Mr. BOARDMAN. Certainly. I think, I guess, the best way to say 

this is one of the things I get surprised about—and while I think 

this is extremely serious business that we are dealing with with 

railroads, what I find surprising sometimes is that there have been 

tremendous improvements made in rail safety, and the focus—we 

have difficulty, as an industry, getting, for example, the highway 

side of the House to pay attention to our grade crossing accidents, 

which result in 600 [subsequently corrected to 400] or so deaths a 

year. 

[Information follows:]

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Mr. BOARDMAN. And part of the reason we have such difficulty—

and, yet, that is one of our key elements of reducing the number 

of injuries—one of the difficulties we have is that there are over 

40,000 highway deaths a year. 

So for the highway side that we work with, that particular mode, 

we are a very low ranking priority in terms of what they feel they 

need to do. And, yet, in my arguments with them to try to say, listen, if you took some of the resources you had and worked with us 

and this industry, what we could do and what would be a tremendous impact on reducing the number of these grade crossing accidents. It is particularly frustrating because of those differences in 

modes. 

So I am not sure I get at your question absolutely directly, but 

what I see is an industry that is willing, that wants to improve 

safety, that has demonstrated that improvement in safety, but that 

we can always do better. 

Mr. PETRI. Just a second question. I know we have to go and 

vote. I guess the statistics indicate that there has been a reduction 

in accidents over the last few years in the railroad industry. Is that 

because of underreporting or is it because of better safety? What 

would be the reasons for that? What can we learn from that? 

Mr. BOARDMAN. We absolutely believe it is because there is less 

accidents. We do not believe it is because of—I mean, what we are 

talking about today is employee injuries, and there may be some 

difficulties, and we have investigated and looked to see what the 

difficulties were on this underreporting, but when you look at the 

absolute number of accidents that are out there, they are down 

dramatically, and we appreciate that. 

What we are not content with is that here, a couple of years ago, 

we began to flatten out in terms of the rate of reduction; and the 

rate of accidents continues to bother us. So we are specifically looking at the rate of accidents at this point in time. It is something 

we really need to approach, and we are looking at that with a Risk 

Reduction Program to really get at that problem. 

Mr. PETRI. Thank you. 

Mr. OBERSTAR. Mr. McNerney? 

Mr. MCNERNEY. Thank you, Mr. Chairman. 

I was wondering about the difference in the sort of culture between the railroad industry and the airline industry. There seems 

to be a fairly good culture of reporting and encouraging people to 

report accidents in the airline industry, or incidents. Could you address that, what you think the cause of that difference and how we 

might expand that sort of culture to the railroad industry? 

Mr. BOARDMAN. Congressman, I think you have hit on a key 

point, and that is we decided to do that, exactly that, with the 

Close Call Reporting mechanism we now have in place, and we are 

beginning to expand. We modeled it very similarly to what occurred 

in the aviation industry under FAA. We think the critical element 

of that is that there be a reporting system that allows the employee 

to be anonymous; that we really find what could have happened 

here when there was a close call of an accident. We think the FAA 

did the absolute right thing when they looked at that in their particular culture. We, right now, are looking at and modeling that, 

and have begun to do so. 

14

Mr. MCNERNEY. Thank you. Do you think the difference of the 

sort of criteria between reportable and non-reportable incidents is 

any way impacting this culture or this dynamic? 

Mr. BOARDMAN. Yes. I think there is a complexity here that is 

very difficult, and that our particular area is a very narrow one on 

harassment and intimidation, it is only: was there an effort to prevent the employee from making the report or was there a manipulation or a prevention of seeking proper medical care? The rest of 

it, that because human nature becomes complicated in the relationship between the employee, the supervisor, the people involved, 

and the witnesses, are other cases or occurrences that maybe you 

or I would judge as harassment and intimidation, but do not fall 

under the authority of the FRA. They may fall under the authority 

of the Department of Labor. So that makes it much more complex. 

Mr. OBERSTAR. Mr. McNerney and Ms. Richardson, we have five 

minutes to go on this vote. The majority leader has announced that 

voting will be closed at 17 minutes, so we had better recess now, 

Mr. Petri, and we will resume as soon as possible after conclusion 

of this vote. 

[Recess.] 

Mr. OBERSTAR. The Committee will resume its sitting. 

Mr. Boardman, do the Federal Railroad Administration criteria 

for reportable and non-reportable injuries play a role in the problems that we are discussing here? The definition of reportable and 

non-reportable injuries, does that play a role? 

Mr. BOARDMAN. Well, I think, yes, it does, because I think our 

regulatory requirements are very narrow in regard to what harassment and intimidation would be. And just to reiterate for a second, 

it is really about preventing any report at all, which would be harassment and intimidation, or discouraging or preventing the proper 

treatment or a treatment at a level that would kick in the requirement to report. If it is a minor treatment, it does not require reporting, and if it is prescription drugs or a more serious treatment, 

then it does require reporting. So there is an element of that, yes. 

Mr. OBERSTAR. What should be changed? 

Mr. BOARDMAN. Well, I think, obviously, the broad concept of 

what you talked about in terms of the culture itself certainly needs 

to be changed. We think that you have stepped in the right directions with adding DOL now to actually going in and providing 

some of their resources to look at this issue in the most recently 

passed bill that came from the 9/11 Commission. 

Mr. OBERSTAR. Thank you. 

Mr. BOARDMAN. We think that the paradox that I talked about 

earlier, that there is the old and there are the newer things or 

structures within the railroad themselves, and what you talked 

about earlier. You used a corporate language, I think, as the language, and I think I would just say to you I agree with that; it is 

the leadership first, it is the leadership from the top and it is all 

the way down. 

What we found, as our investigators get into this, is that when 

you do get up to a leadership level, there is an immediate fixing 

of the problems. Whether there is a continuation and a hanging in 

there to keep them fixed is another question. But we do see and 

are encouraged, once it gets to the right level, that they fix it. 

15

Mr. OBERSTAR. Thank you. 

Can you describe in layman’s language the distinctions between 

FELA and worker’s comp? 

Mr. BOARDMAN. I guess, in layman’s language, I was trying to 

understand it for myself in regard to that, and one of the things 

that hit me here in my whole career was that there was always an 

immediate reporting of an injury under Worker’s Compensation; 

there was not any delay. And I don’t remember—I mean, there 

were times when employees themselves didn’t want to report it, 

didn’t want to go through the paperwork, didn’t want to do those 

kinds of things. I said to somebody during prep for this that there 

are injuries that—I was on a dairy farm, I wasn’t from a mine. But 

I remember basically going home every day with something cut, 

bleeding, or something wrong, and it wasn’t a reportable accident 

or injury on my own regard. And I do think you see a lot of that 

among employees themselves, that they aren’t going to normally go 

forward with that. 

I think where it begins to get difficult is that, with FELA, there 

is a necessity on the part of the employees to go forward and represent themselves to get a solution to something that is not minor, 

that is not something that they wouldn’t bother reporting. So I 

think the differences, at least in my mind, are those. 

Mr. OBERSTAR. More simply, could you describe FELA as faultbased, a fault-based system and worker’s comp as essentially a no 

fault system? 

Mr. BOARDMAN. Yes, I think that is fair. 

Mr. OBERSTAR. And in a fault-based structure, then, every injury 

becomes reportable. 

Mr. BOARDMAN. Has to be proved, yes, and reportable. 

Mr. OBERSTAR. Can FRA make changes in that structure without 

the need of legislation? 

Mr. BOARDMAN. I don’t know the answer to that, sir, but I will 

get an answer for you. 

[Information follows:]

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Mr. OBERSTAR. And, by that, then my next question would be are 

you considering any such changes, and your answer would be, well, 

no, because we haven’t fully considered——

Mr. BOARDMAN. Not that have made their way to me. 

Mr. OBERSTAR. Okay. 

Mrs. Capito? 

Mrs. CAPITO. Thank you, Mr. Chairman, I have no questions at 

this time. 

Mr. OBERSTAR. Thank you. 

I have other questions which I think we will submit to you in 

writing, Mr. Boardman. 

Mr. BOARDMAN. Yes, sir. 

Mr. OBERSTAR. Because we are likely to have another vote in a 

few minutes, so I will hold you excused and call our next panel. 

Mr. BOARDMAN. Thank you, Mr. Chairman. 

Mr. OBERSTAR. Thank you. 

Ms. BROWN. Mr. Chairman, I do have a question for Mr. 

Boardman. 

Mr. OBERSTAR. Oh, certainly. Of course. 

Ms. BROWN. In your opinion, is there a significant under-reporting of rail accidents? 

Mr. BOARDMAN. No, there isn’t. We do not believe that they are 

significantly under-reporting. We believe there are occurrences, but 

with the modifier ‘‘significant,’’ no. 

Ms. BROWN. What would the FRA need to more thoroughly investigate railroad accidents, what tools would you need? 

Mr. BOARDMAN. We have begun to change our concept of how we 

would use tools, and we are using much more today a Risk Reduction Program that we would really be looking at. So what we really 

would want to see, for example, in human factor accidents—and I 

have got a rule of eight requirements, and I would be happy to give 

those to you or I can go through them right now. But what we are 

really looking at today is to try to find a way to reduce risk to have 

railroads themselves look at their hazards and then make decisions 

on mitigating those kinds of things. 

Ms. BROWN. You indicated that a lot of the intimidation kind of, 

and I guess civil rights kind of violations, came under the Department of Labor, and it seems to me, under this particular Administration, Department of Labor is kind of weakening. And I know you 

can’t respond to that——

Mr. BOARDMAN. Thank you. 

Ms. BROWN.—but how can we improve the system, then? 

Mr. BOARDMAN. I think what we are doing, Congresswoman,—

and I think that you have worked with us very well on this with 

your Committee and your leadership and your ranking in the 

past—is that these kinds of things that we are looking at today to 

reduce risk, to have our railroads more involved in the RSAC process, for example, and the labor unions, we are finding real success 

in those areas. This is not an area that we have particularly put 

into that process, and I am not even really considering that at this 

point in time, but we are making the kinds of improvements I 

think that are driving down the number of accidents and trying to 

get out and make sure we investigate the ones that are under our 

18

national inspection program, that we begin to look at where we 

would use or get the most bang for our buck in the process. 

Ms. BROWN. My last question. I guess you have taken a look at 

the safety bill. Do you see provisions in there that would strengthen how we investigate accidents? 

Mr. BOARDMAN. Well, in this particular area I see, in particular, 

Section 506, which is one that addresses this very directly, and, 

yes, that would help. 

[Information follows:]

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Ms. BROWN. Thank you, Mr. Chairman. 

Mr. OBERSTAR. I apologize to the gentlewoman. I lost track of 

who was where with all these votes. 

Ms. BROWN. I know. Thank you. 

Mr. OBERSTAR. Mrs. Napolitano. 

Mrs. NAPOLITANO. Thank you, Mr. Chairman. I am sorry I kind 

of missed a little bit of the ongoing statements, but I have a question in regard to what role the inspectors play in assisting the FRA 

in collecting and categorizing the incident and accident data. And 

then do the States all receive all of the same incident reports as 

reported to the FRA? 

Mr. BOARDMAN. In the State that the accident occurs in, Congresswoman? 

Mrs. NAPOLITANO. In any State. 

Mr. BOARDMAN. Yes. As far as I know, we do. Am I right on that? 

Yes, they do. And we have our operating practices inspectors, for 

example, in this particular subject area, both in FRA and the 

States. I think there are about 90 plus or minus. I think there are 

88, actually, for FRA and in the States there are another 30 folks 

that investigate these particular incidents, so they provide that 

data. 

Mrs. NAPOLITANO. You are talking about incidents that happen 

outside on public-private property. What about on rail property? 

Mr. BOARDMAN. Oh, I was really specifically talking about the 

harassment and intimidation subject of the hearing. In terms of the 

rail property and all of the inspectors we have out there, we have 

a little over 400 of them. 

Mrs. NAPOLITANO. I am not asking you about the number, I am 

asking do they report to FRA——

Mr. BOARDMAN. Yes. 

Mrs. NAPOLITANO.—as they report to the States. Because, in my 

State, I know the CPUC specifically told me that they were not getting the reports of incidents on rail property. 

Mr. BOARDMAN. Oh. We will check that for you, Congresswoman. 

Mrs. NAPOLITANO. I think they are now, after I brought it up on 

one of the Committee hearings. 

Mr. BOARDMAN. Okay. 

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Mrs. NAPOLITANO. But that is why I am asking are they required 

to report all incidents, whether on their own property, outside of 

their property. 

Mr. BOARDMAN. Yes. If it meets the criteria for reporting, which 

is either generally monetary-or injury-based, they are required to 

report. 

Mrs. NAPOLITANO. Is there a difference between an accident that 

the railroad companies are required to report and one that is not 

required to be reported? What is the criteria specifically that differentiates? 

Mr. BOARDMAN. I will respond to you in writing and give you a 

general answer and then give you——

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Mrs. NAPOLITANO. Okay. I would really appreciate it. One of the 

other questions I would have, and one of those that is very near 

and dear to my heart because of what I have been through in my 

area. The appellate courts have found that the local safety hazards 

do not exist in any State because local safety hazards can be encompassed within Federal regulations, even if the Federal Government has not acted. 

Should the States be allowed to regulate the railroad industry 

when the Federal Government has not acted in order to protect 

against local safety hazards? And I find that quite often is the case 

with the cities that I represent, and I keep getting information that 

not once has any State been successful in getting some alleviation 

to the issues. 

Mr. BOARDMAN. I think, Congresswoman, we know that this is 

a particular interest area of yours and that we are working with 

the California PUC right now to try to resolve any of their issues 

that they have. 

[Information follows:]

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Mr. BOARDMAN. But there is certainly a right, and I think your 

point is that even though there is a right for the locals if the feds 

have not ruled to make a rule, that in fact that hasn’t happened. 

There are cases where that has happened, and this is a very difficult area right now, and we understand it, certainly the Chairman as well has brought it up with Minnesota in regard to the particular subject area that we are dealing with. 

We will continue to work with California or any other State, but 

we think it would create more difficulties by having 50 different 

regulations to cover a particular area than it would to continue to 

work——

Mrs. NAPOLITANO. That is the argument that I heard, and I understand that. However, if we are still continuing to have States 

in some and those national regulators say we need some assistance, 

isn’t it proper for you to be able to begin to work on having some 

relief for them? 

Mr. BOARDMAN. I think that it is proper for us to work with them 

continually, and I think, for the most part, we resolved their issues, 

and there are some that seem to be intractable and that we really 

can’t get resolved. All of us, as humans, don’t like to be told ‘‘no,’’ 

in the end, that we are not going to do this particular part of it, 

but we will continue to work with them, ma’am. 

Mrs. NAPOLITANO. I would appreciate it. And if you could send 

some of that information as to what you are doing, what outreach 

or what is it specifically that we may be able to share with some 

of our individuals that we work with, that would be very helpful, 

especially at the local level. 

Mr. BOARDMAN. Yes, ma’am. 

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Mrs. NAPOLITANO. Thank you, Mr. Chairman. 

Mr. OBERSTAR. Mr. Boardman, we hold you excused. 

Mr. BOARDMAN. Thank you, sir. 

Mr. OBERSTAR. Thank you very much for your testimony. 

Our vote is now in progress, but I will call the next panel. Mr. 

William Jungbauer, Mr. James Brunkenhoefer, Mr. John Tolman, 

Mr. David Cook, Mr. Gregory Haskin, Mr. Timothy Knisely, Mr. 

Charles Ehlenfeldt. 

Gentlemen, please rise. Raise your right hand. Do you solemnly 

swear that the testimony you will give before this Committee in the 

matters now under consideration will be the truth, the whole truth, 

and nothing but the truth, so help you God? 

[Witnesses answer in the affirmative.] 

Mr. OBERSTAR. You are now sworn in and we will—I hate to do 

this, but I will ask Mr. Jungbauer to begin, and I will interrupt you 

at about three minutes into your testimony. 

TESTIMONY OF WILLIAM G. JUNGBAUER, PRESIDENT, YAEGER 

JUNGBAUER AND BARCZAK, PLC, MINNEAPOLIS, MINNESOTA; JAMES M. BRUNKENHOEFER, NATIONAL LEGISLATIVE DIRECTOR, UNITED TRANSPORTATION UNION; JOHN 

TOLMAN, VICE PRESIDENT & NATIONAL LEGISLATIVE REPRESENTATIVE, BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN, INTERNATIONAL BROTHERHOOD OF 

TEAMSTERS; DAVID COOK, FORMER CSX LOCOMOTIVE ENGINEER; GREGORY HASKIN, FORMER UNION PACIFIC CONDUCTOR; TIMOTHY KNISELY, FORMER NORFOLK SOUTHERN 

CONDUCTOR; AND CHARLES R. EHLENFELDT, FORMER BNSF 

CONDUCTOR 

Mr. JUNGBAUER. Thank you, Mr. Chairman. My name is Bill 

Jungbauer. I am an attorney; I am proud of it. The reason I am 

here is I want to tell this Committee and the Country about all of 

the abuses that are going on of rail carriers harassing and intimidating injured employees. 

The Congresswoman had asked a question a little while ago and, 

Mr. Chairman, you mentioned the Minnesota statute. The State of 

Minnesota, the State of Illinois have found, they had legislation 

passed because there was so much harassment of injured employees going on that they passed criminal statutes, criminal statutes 

to stop these railroads from denying injured people medical care. 

You know what these railroads did? They went to Federal court 

and they sued to stop the States from trying to protect their injured citizens. What these railroads are saying is, States, don’t go 

out there, don’t do anything to protect your citizens. And now they 

are coming to Congress and saying, Congress, don’t you do anything either. 

I am here to tell you that, based on my experience in this Country, that railroad workers, if you go home in your districts, they 

will tell you, every one of them, that this is a huge problem. 

If I can get the Elmo up, please. This document I want to show 

you is an exhibit from Burlington Northern Santa Fe. I had to subpoena it. I had to fight for it. This is their red-green program. If 

you look at the things in the yellow, you will notice that for an employee they get 40 points if they have a reportable incident; 5 

39

points if it is non-reportable. This is it in a nutshell. This is the 

type of programs that cause harassment and intimidation, because 

if you are a trained yard and engine employee, TYE employee, 47 

points makes you a red employee. 

I have personal examples—and you are going to hear from one 

of them today—of individuals who have been fired because they 

have an accident, they get 40 points, and then a minor little thing 

comes along again, or another accident, even though it is not their 

fault. And that is the most disturbing thing of all. Congressman, 

you brought this up before, yourself, Mr. Chairman, that people are 

being punished for getting hurt even when it is not their fault. 

I also have for the Committee a transcript that is attached, it is 

Mr. Cloud’s transcript. This is a CSX employee. We have tape recording, court reporter transcript of a CSX official saying don’t file 

that accident report, and then saying we are going to go make up 

an accident; we are going to say that somebody threw a rock and 

hit you in the head and escaped. It is all in my—I have submitted 

it to the Committee. Nothing has been done. 

What makes an individual cheat like that? And what the Congresswoman was asking before, what is the culture? And I have 

studied this for a long time, and I believe that it is the management programs at these railroads that cause middle and lower 

management people to harass their employees, and that, I believe, 

is the compensation system. 

I also have attached as exhibits the fact that, in most of these 

railroads, the compensation, in part, for first-line supervisors and 

middle management is based on whether statistics go down or not. 

It doesn’t matter if they try hard. If a defective rail car comes in 

from somewhere else and an accident happens in their territory, 

their family doesn’t eat as well. That causes good people to become 

bad. And if you want to change the culture, change those programs 

that cause good people in these railroads to become bad and harass 

employees. That is what I am trying to argue for. 

Again, the Minnesota——

Mr. OBERSTAR. I am going to interrupt you at this point because 

we have seven minutes remaining on this vote, and we will reconvene as soon as possible after the vote. 

[Recess.] 

Mr. OBERSTAR. The Committee will resume its sitting. 

Mr. Jungbauer, you were, I think, nearing completion of your 

statement when I interrupted you for the vote. 

Mr. JUNGBAUER. Okay. Shall I start again? 

Mr. OBERSTAR. No, you may continue at that point and conclude. 

Mr. JUNGBAUER. Thank you. 

There are three quick points I want to make. I take strong issue 

with FRA statements that this is not a problem. Statistics in our 

own office: 38 of the last 108 cases we have had in our office have 

either been not correctly filed with FRA or misfiled. 

Secondly, FRA fines do not work. If anyone goes—and I have 

done a Freedom of Information Act request. Fines that are assessed 

against these corporations are reduced and paid in pennies. Billion 

dollar corporations don’t worry much about thousand dollar fines 

that end up being negotiated down to hundred dollar ultimate payments. 

40

And, finally, on Worker’s Compensation, the problem with worker’s compensation is it doesn’t pay the injured person enough. A 

perfect example I can give you is the State of Arizona. I have a client who lost a foot in a switching accident. Under worker’s comp, 

he would get $75,000. A foot is worth a lot more than that to my 

client. 

Thank you very much. 

Mr. OBERSTAR. Thank you, Mr. Jungbauer. 

Mr. Brunkenhoefer. 

Mr. BRUNKENHOEFER. Yes, sir. First, I want to give you a hypothetical story. 

Mr. OBERSTAR. Pull the microphone around in front of you. There 

you are. Thank you. 

Mr. BRUNKENHOEFER. I want to give you a hypothetical story. 

There is a couple named Jean and Jim, and they are out on their 

bicycles between a place called Beulah and Chisholm, and someone 

bumps the nice lady with a car, and Jim gets very concerned about 

her health, and the person gets out of the car and says before I can 

render you aid, we have to contact my insurance company, we have 

to fill out these forms, we have to have a conversation about this 

not being reported to the insurance company because my insurance 

rates will go up and I will lose my bonus. 

And before I take you for medical care, I need my supervisor to 

come over from Hibbing or Virginia, and when you are through 

being treated, we are going to require you to go to a specialist in 

Duluth or Superior during the week, and the lady says, well, I can’t 

do that, I don’t have anybody except my son, who works for a railroad or works for someone, and he will have to take off work or 

my husband will have to take off work to transport me back and 

forth. And they tell you that is your problem, that you are going 

to have to handle it yourself. 

Now, I believe, in the State of Minnesota, when you do not 

render aid to someone who is injured, it is a felony. If you do it 

on the railroad, you get a bonus. That is the culture. 

Why are we here today? Because of a culture that says because 

I don’t like FELA, it is my right, because there is a law I don’t like, 

I have a right to torment, torture, commit fraud, abuse, and the list 

goes on. So the way I am going to do this is I am going to keep 

seeing people suffering; I am going to keep insisting that they can’t 

report an injury; I am going to keep insisting they can’t take medication; I am going to keep insisting that I have this right, because 

this is my way of protesting a law. 

Now, I have done some protesting in my life, but I have never 

made anybody physically suffer because I didn’t like it. That is not 

the way we are in the United States. Everybody here that is going 

to testify later is going to talk about these beautiful numbers we 

have. Well, I think we have established that it is garbage in and 

garbage out; that the numbers they are basing their testimony on 

we have already shown that they are not reporting what is going 

on, so how can you put faith in numbers? 

The front of this testimony here says that we are going to have 

a hearing about injuries, harassment, intimidation. I didn’t know 

that you could just come up here and change the subject to whatever you wanted to. So they are going to talk about FELA. They 

41

don’t want to talk about their culture that says it is okay. And 

something is very wrong, and I have read the testimony, and all 

I see is they want to defend the system the way it is now. 

We are all doing a wonderful job on the management side and 

we want to keep doing it just like it is doing, because it works so 

well. They want to talk about FELA. I think Mr. Jungbauer and 

I can come to agreement. We will talk about it as long as treble 

damages are on the table. I mean, this game about we are always 

going to talk about FELA, I don’t think this Congress is going to 

repeal FELA, and I don’t think, if I am reading the numbers right, 

the next Congress is going to be interested in talking about it. And 

they are liable to talk themselves into a bigger problem than what 

they have. 

Let’s talk about harassment and intimidation, and people not 

getting medical care. Let’s talk about families. Let’s talk about people that hide injuries, find out two weeks later they are hurt and 

then they suffer the rest of their lives, the rest of their lives with 

pain because some manager wants his damn bonus. And this stuff 

about transferring them or docking them on pay or firing them, it 

is not working. 

This hearing is about what is not working. People are hurt, people are suffering, but, yet, I haven’t seen anything that says here 

is how we solve this problem. So the only concept I have been able 

to come up with, Mr. Chairman, is that we make it more punitive, 

because I haven’t heard anything that says that anything else 

works. It is like we have got a bad culture out there and we have 

got a renegade official, and that renegade official is not going to 

make his safety numbers, so we are going to out here and we are 

going to tell the injured worker. 

Now, I will agree with the railroads, we are not having the people who lose their legs or dying; they are getting reported. But 

what we are not getting reported is the small injuries that we 

could all work on and come to a solution. 

Now, we hear all about this terrible program that we can’t talk 

about called FELA. Eighty percent of all the people who are injured 

on the railroads settle between the employee and the employer 

without the help of any lawyer. Eighty percent. They want to tell 

you that every injury has something to do with a lawyer. That is 

not true. That is not true. I believe that is GAO. Twenty percent 

hire lawyers. Of the 20 percent, 19 percent settle short of jury settlement. They have lawyers all the way through the process, from 

the time you hit the ground, they are on the phone telling their law 

department, but, boy, they get all stirred up if one of our guys goes 

to a lawyer. Boy, that is horrible. 

Then that 1 percent that goes to trial, two thirds of that one percent end up getting an award; one third doesn’t. So they are trying 

to contend that all of this that is going on, all these people suffering, all these families are suffering because one percent of the 

time they have to go to trial. One percent. 

What system do we have that we have to come before here to sit 

down and say these people—nobody in America has the right to 

treat people that are injured and hurt and denying them medical 

care? No one has the right to try to use their own employees to essentially cause them additional pain. I call that torture. They 

42

didn’t twist the guy’s arm, but the guy’s arm was already broke. 

So he is being tortured, he is being denied medical care, or she is 

being denied medical care, and, gee, because I don’t like a law, I 

am going to keep torturing my people until I can get that damn 

law repealed. 

God, I am Jewish. The history of my religion is people being tortured because they wouldn’t change their faith. Now we want to 

torture the railroad employees until they somehow come to you and 

say we have had enough, Jim, we have had enough, Mr. Chairman, 

we want you to change the law. 

I will answer questions. 

Mr. OBERSTAR. Thank you, Mr. Brunkenhoefer. 

Mr. Tolman. 

Mr. TOLMAN. Good afternoon, Chairman Oberstar, Ranking 

Member Shuster, Members of the Committee. I appreciate the opportunity to be here today. 

The subject of today’s hearing is something that has been a bone 

of contention for the Rail Conference members and all railroad 

workers for generations. We believe these policies originated because of ties between the industry and military that go back quite 

a way. 

This history underlines why managerial culture in the railroad 

industry is known as command and control. It should come as no 

surprise that railroads react swiftly and harshly when something 

goes wrong. This is true across the board. Whether an incident produces an injury to a railroad worker results in an accident or merely involves an act or omission that causes nothing more than a 

rules violation. 

It is vitally important for this Committee to understand the industry’s culture, dating back for more than a century, and a half 

is the root of this problem. This culture manifests itself in aggressive, draconian tactics across the board. 

The carriers are fond of blaming the Federal Employees Liability 

Act as the culprit and suggest that it is far more adversarial than 

other programs designed to address workplace injuries and occupational illnesses. However, the railroads are wrong for two reasons. 

First, injured employees work to seek out the assistance of an attorney, as Jim just said, in only a minority of cases. In fact, a number of studies have been done dating back for years which show 

that a percentage of cases in which an attorney is involved in 

FELA matters is significantly smaller than the percentages of 

worker’s comp cases in which an attorney is retained. Moreover, 

the GAO study said that an overwhelming majority of FELA claims 

are resolved in upwards of 90 percent and less than 1 percent end 

up in court. 

Second, if the industry’s argument is valid, then we would expect 

to see a noticeably more lenient response to railroads in cases of 

accidents where no personal injuries are sustained and in simply 

disciplinary matters. This is simply not the case. 

For example, the FRA first published a final rule governing locomotive engineers in 1991. The industry command and control culture went into overdrive. Scores of locomotive engineers found that 

certification revoked for incidents that would not have triggered a 

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ness on the part of the carriers forced the FRA to reopen the rule 

for major revisions barely a year and a half after it went into effect. On April 9th, 1993, the FRA published an interim final rule 

that significantly scaled back some of the revocational offenses and 

clarified others. 

Although the industry has been hemmed in somewhat by the 

FRA in terms of locomotive engineer certification, command and 

control remains the philosophy when related to railroad worker’s 

discipline. The June 27th Senate Appropriations Committee report 

on Senate Bill 1710 points out that the Railway Labor Act arbitration cases—many, if not most, involving discipline—take an average of 30 months to resolve and funding for such cases routinely 

runs out several months before the end of the fiscal year because 

of the caseload. 

It doesn’t matter whether an event involves an injury, an accident, or merely a disciplinary matter; the industry’s response is 

swift and harsh, and that is what command and control is all 

about. 

In conclusion, the 19th century ended over 107 years ago, and it 

is time to bring the treatment of railroad workers into the 21st century. The culture of the industry must change now, and together 

we must share ideas, cooperate to implement programs where labor 

is treated as an equal partner throughout the industry and workers 

are considered a valued resource and not a disposable commodity. 

Thank you, Mr. Chairman and Members of the Committee. 

Mr. OBERSTAR. Thank you, Mr. Tolman. Your complete testimony, of course, will be in the record. 

Mr. Cook. 

Mr. COOK. I would like to thank the Members for this opportunity to state all factors regarding my injury while at work on 

CSX Railroad in January 2006. I was employed at age 18 by the 

Seaboard Coastline Railroad in May 1970, as a locomotive fireman 

and promoted to engineer position in January 1972, working over 

36 years and 12,000 days until September 2006. I held elected positions with the United Transportation Union through 1992 and 

joined the BLE in 1993. 

In 2005, I helped handle complaints of CSX employee fatigue 

from extended overtime, positive job changes were made in November, and I, as the senior engineer in our Orlando, Florida terminal, 

did work one of the newly reduced hour jobs. In late December I 

was told by a young CSX manager that ‘‘if I couldn’t work 12 hours 

every day, CSX could pull me out of service and send me to a doctor,’’ which I considered as a threat. 

On January 12, 2006, after working over 10 hours, I told the 

same officer I was tired and felt unsafe. The following morning I 

was informed that I had failed three operational rules tests the 

previous work day at the same time he ordered me to leave. I knew 

of no personal test failures since 1993, and I filed a CSX code of 

ethics complaint for falsifying my personal employment records. 

On January 20, 2006, after working over 10 hours with a relief 

crew available and ready to take over, this same CSX officer deliberately held me on extended overtime and I sustained my only career injury. After a medical check of my condition, it showed a back 

injury which was reported to the FRA. My crew and I were subVerDate 0ct 09 2002 16:32 Mar 05, 2008 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6633 P:\DOCS\38568 HTRANS1 PsN: JASON
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jected to increased operational rules tests ordered by the same CSX 

officer who took me for a medical injury evaluation and CSX officer 

test teams held tests much over the average two to four per employee per month. 

The FRA requires the railroad officers to perform normal tests 

for education, not discipline. From January 24 through 26 of 2006, 

I was administered 13 tests, but only 11 were noted, with 2 alleged 

failures for me only, and on January 31st I was charged with another test failure and two more compliances were not recorded 

again. 

After five area incidents from 12/05 through my injury, CSX ordered tests for 56 days, with 457 total employee tests, 19 failures 

by 13 different employees. I had 7, and 12 others had singular failures. From January 12th through February 16th of 2006, 35 days, 

there were 334 total tests wherein I had all six failures. These test 

failures showed CSX was only interested in building up a quick 

record of rules failures on me as a senior engineer and very active 

union member who was injured to cover up their goal to terminate 

me, sending a clear message to other local employees not to report 

any injuries in the future. 

As a result, I was ordered to four separate investigations and no 

other failed employees were charged, with CSX officers acting as 

the prosecutor, judge, and jury. In three investigations my fellow 

crew members were called as Carrier witnesses, even though they 

were guilty of rule violations at the same test times, and my witnesses requested were refused to be made available by CSX. 

On January 18th, 2006, I sent CSX President Michael Ward an 

18-page letter about this harassment, copying other CSX execs, the 

FRA union officer, six Federal agencies, and three U.S. 

Congresspersons. On March 1st, CSX administered me 85 days of 

unpaid suspension, which was more discipline than our entire 100-

man terminal had in a year. My four discipline cases were appealed by the BLET, my regional officer and one Congressperson’s 

staff advised me that these actions by CSX toward an injured employee were unethical, unlawful, and suggested I needed legal advice. 

In July of 2006, I filed an extensive Federal Labor lawsuit 

against CSX based on discrimination, harassment, and intimidation of me because I was injured while working for them. In early 

August 2006, the UTU and BLET presidents wrote a joint letter to 

CSX President Ward about injured employee incidents where CSX 

used terms of the ‘‘CSX Action Plan.’’ This plan directs CSX terminal officers to name five BAD ACTORS in each location and all 

are to be targeted, stalked, and followed to find ways to terminate 

such persons. 

In early 2006, most employees were told, in face-to-face rule 

meetings required by CSX, that if you get hurt, we will fire you. 

I had been checked regularly by numerous doctors and it was discovered that I have four bulging upper back and neck discs, causing my constant pain. After September 7th, 2006, I could no longer 

work based on my lack of ability to climb, sit extended times, or 

stand the whole body vibrations present while performing my engineer duties. I consulted my doctors and found that they are not opVerDate 0ct 09 2002 16:32 Mar 05, 2008 Jkt 000000 PO 00000 Frm 00066 Fmt 6633 Sfmt 6633 P:\DOCS\38568 HTRANS1 PsN: JASON
45

timistic about my injury improvement, so I filed for full railroad retirement disability, which was granted March 1st, of 2007. 

In December of 2006, I was ordered to a fifth investigation using 

my crew members again as witnesses, disregarding their guilt, 

which was a final step to terminate me only after I was injured, 

and it was postponed until I will ever be able to return to work. 

This treatment by CSX caused a mental strain based on my personal disability, pain, and my employer attempting to paint a picture of me to take me from excellent, long-term employee, who 

trained many new hires for CSX, to deserving termination only because of my injury. 

Mrs. NAPOLITANO. [Presiding] Mr. Cook, I hate to ask, but could 

you wrap it up, sir? 

Mr. COOK. Yes, I am. 

I started in September of 2006 with psychiatric counseling and 

meds which continue to date to be able to cope with such treatment. The CSX Action Plan and their clear actions against me 

show that CSX intends to terminate any employee who reports an 

injury using manipulated, false test records, threats, harassment, 

and/or discrimination. 

All railroad workers hope this hearing and future legislation 

based on clear facts you are presented show that we are bullied in 

our workplace by officers in a transparent effort to intimidate employees from reporting injuries or face termination. The U.S. workers deserve to be treated with dignity and respect in their workplace. This Nation’s railroad companies should continue to educate 

employees to improve safety, but by intimidating employees 

through any means is unacceptable to create misleading and faulty 

safety records. 

Thank you. 

Mrs. NAPOLITANO. Thank you for your testimony, sir. 

Mr. Gregory Haskin? 

Mr. HASKIN. Good afternoon, Chairwoman Napolitano and Members of the Committee. My name is Greg Haskin and I would like 

to thank you for the opportunity to testify today at this important 

hearing. I felt immediate impact of the failed railroad industry injury policies and hope this hearing can bring to light the abuses 

perpetrated by the railroads. 

November 5th, 2001 started out as a normal workday for me. 

Less than two hours later, my life as I knew it would change forever. As a young boy, I was a typical kid, fascinated by trains. My 

grandfather worked for 27 years for the Union Pacific and my father 43 years. I couldn’t wait for my chance to do what I was born 

to do. In 1997, I was finally hired into train service on the Union 

Pacific Railroad. 

That dream was cut short at the age of 28 and became a nightmare that I may never awaken from. I was truck in the head by 

a piece of steel projecting from a rail car. I would later find out 

that this bar had been broken for more than three weeks prior to 

the accident, but the company needed the car to lay rail in the yard 

and couldn’t afford to take it out of service. 

When I came to, I was laying face down on the car in my own 

blood and wasn’t sure what had happened. Minutes later, Union 

Pacific management was on scene and my lesson in harassment 

46

and intimidation was just beginning. I was on scene for two hours 

while management decided what to do with me. No call to 911 was 

ever made. No one stepped up to take me to an emergency room. 

No one with medical knowledge was ever brought to the scene. 

They just sat back, hoping and waiting to see if my head would 

eventually quit bleeding. 

Finally, after two hours, I was told that I would be taken for 

medical attention. Instead of taking me to the nearest emergency 

room, the director of operations drove me 30 minutes to a clinic located less than a quarter mile behind Union Pacific’s Central Regional Headquarters. I was injured in Kansas, but this clinic was 

in Missouri. 

On our way there, we passed four major hospitals. I entered the 

clinic soaked in blood with the manager by my side. A nurse behind the desk rushed to me with a towel to help control the bleeding. She informed the manager that the clinic didn’t handle injuries this serious. He replied that a UP nurse had called ahead and 

was told the doctor on call would handle it. 

A doctor entered the room within minutes only to be told by this 

same manager he was not the doctor we were here to see. The doctor, stunned and amazed, turned around and left the room. 

About 15 minutes later, that doctor entered the room. After quick 

examination, he told me I would need staples to close the wound 

and to talk with the manager about what I wanted to do. The manager stated if I received staples, my injury would turn into an FRA 

reportable accident, which would follow me for the rest of my railroad career and that I would have no chance of promotion and it 

could ultimately cost me my job. I was scared to death. I was doing 

the job I was born to do and here I was about to lose it all. 

I chose not to have the staples. The doctor told me he could prescribe something, but it would be the same as taking four 200 milligram Tylenol, that I probably had at home. The nurse then informed the doctor that I had not had a tetanus shot in over 10 

years. The doctor informed the director and myself that they would 

love to give me a tetanus shot, but they were all out of it because 

of 9/11. 

I didn’t know it at the time, but if the doctor would have prescribed the 800 milligram Tylenol or given me a tetanus shot, my 

injury would have become reportable to the FRA. I now know why 

he was so reluctant to do either. 

I left with a bandage on my head, resigned to live with the pain 

until I could get home and take some Tylenol. I was driven the 30 

miles back to the yard in Kansas, to my vehicle, and I drove myself 

30 minutes to my home, which I barely remember doing. 

I got home at about 5 p.m., almost eight hours after the accident, 

and I took four 200 milligram Tylenol, as directed, and went and 

laid down. I woke up at 9 a.m. the next day., 17 hours later. My 

head was pounding, I was nauseous, and the sheets were a bloody 

mess. I took more Tylenol and vomited throughout the day. My 

mother became worried about me and called my sister, who is a 

neurological ICU nurse at St. Luke’s in Kansas City. When she 

came to check on me and heard about my symptoms, she called a 

friend of hers who is a neurological surgeon at St. Luke’s, and after 

hearing the symptoms, told her to get me there immediately. I was 

47

diagnosed with post-concussive syndrome and referred to a neurologist. The emergency room doctor told me I was lucky to awaken 

after being asleep all that time. 

When UP learned that I went to the emergency room, they 

changed my work status to OS, short for other service, saying I 

was in training. I spent the next month at home in bed on narcotic 

pain medications to try and control the headaches, and was shown 

as OS the entire time, meaning that the UP did not have to report 

my injury to the FRA because I had lost no time from work, according to UP’s records. 

I then returned to work, continued to work with the railroad’s 

approval for over two years, while still undergoing treatment for 

the headaches. In December of 2003, UP told me I could no longer 

work while taking the narcotic pain medications unless one of my 

treating physicians would put it in writing I was safe to perform 

my duties. I was devastated, to say the least. I went to all my doctors, pleading for a written statement that I was safe to work, but 

all the begging in the world could not persuade them. 

From my injury in 2001 until 2004, I underwent seven surgical 

procedures on my head and neck trying to alleviate the headaches 

so I could keep what I thought was the best job in the world. My 

last surgery was one last attempt to stop the pain. In this surgery, 

a probe was heated to 178 degrees and placed on three separate 

nerves in my neck. Each nerve was burned for 60 seconds. No anesthesia could be given, as the doctors needed to make sure they 

were not burning the wrong nerves. The only way to describe this 

pain is to place your hand on a stove top on high and leave it there 

until you can no longer feel your hand. I still battle headaches 

every day. I have lost every ounce of pride I once had and deal with 

impotency and depression that no 34 year old man should ever 

have to go through. 

There will be more stories like mine as long as railroads are allowed to harass and intimidate employees, as is current practice. 

The current reporting procedures give incentive to the railroads to 

keep an accident from becoming FRA-reportable. I do not know if 

those first 48 hours prior to my laying in the emergency room 

would have made a difference in my health today, but I do know 

if every injury, no matter what type of medical treatments are involved, had to be reported to the FRA, workers like me would be 

treated by emergency room doctors that are trained to treat traumatic injuries like mine. In my case, the doctor that first treated 

me at the clinic behind UP Headquarter was a retired ophthalmologist. That is right, an eye doctor. 

The UP records show my accident never became an FRA reportable. The director of operations that handled me that day has since 

been promoted twice since my injury and is currently a superintendent. 

To finish up, I only wish that—I am sorry. Excuse me. I am almost done. 

I have not worked for the Union Pacific since December 1st, 

2003, but to this day the Union Pacific still shows I have never lost 

a day because of my injury. The most ironic thing about my accident is that, according to the Union Pacific records, I never even 

48

worked on November 5th, 2001. That was the day that I was injured. If only it was that easy to erase my headaches. 

Thank you for the opportunity to address you here today. 

Mrs. NAPOLITANO. Thank you, Mr. Haskin. 

Mr. Timothy Knisely. 

Mr. KNISELY. Thank you, ma’am. Good afternoon, Chairman and 

Ranking Members of the Committee. My name is Timothy Knisely. 

I used to be a conductor for the Norfolk Southern Railroad. I hired 

out in October 1974, at the age of 20. In 2001, I was injured in the 

course of my duties. 

On the evening of March 9th, 2001, I reported to work as usual. 

I was required by the Norfolk Southern to take a train from our 

Homestead Yard in Oregon, Ohio to CSX’s Stanley Yard in 

Walbridge, Ohio to pick up a number of rail cars and bring them 

back to Homestead Yard. After arriving at the CSX Yard, I went 

to disconnect the air hose from the set of rail cars. The brass fitting 

on the air hose fractured because of metal fatigue and old age. 

When this happened, the air hose, being under approximately 80 

pounds of pressure, began to whip around in the air much like a 

fire hose, and with its brass fitting on its end. The hose struck me, 

knocking me all around. It repeatedly hit me in my legs, back, 

chest, and head. Each time I tried to get up off the ground, it 

would knock me back down. This lasted for about one minute. It 

finally stopped when the hose got caught underneath one of the 

cars and permitted me to get on my feet as best I could. I knew 

I was seriously injured and called for help. 

The Norfolk Southern trainmaster came to the site to investigate 

the incident. He transported me to the local hospital that the railroad uses. The trainmaster attempted to persuade me not to report 

my injury. When I refused his coercion and reported the injury, the 

next day I was charged with making a false injury report. The 

trainmaster did acknowledge that I in fact was struck in my legs, 

back, and chest, but claimed, because he could not see any injury 

on my head, that, therefore, I must have lied about being struck 

in the head. After 27 years of dedicated and loyal service to the 

railroad, I was subsequently charged with lying about being struck 

in the head and eventually fired. This charge happened solely because I dared to report my injury. 

The day after the incident, the trainmaster, with others, went 

back out to the CSX yard to videotape a re-enactment in order to 

prove at my hearing that I could not have been struck in the head 

by the hose, to show that it could not go that high so as to support 

my firing. Unbeknownst to me, the videotape was altered and those 

portions that showed that the hose would in fact go even higher 

than my head, were removed from the videotape. The railroad contended that the hose would only go five to ten inches off the 

ground. The railroad proceeded to have their hearing and fired me 

after 27 years of service, allegedly not because of the incident and 

not because I claimed to be hit on other places on my body, but 

simply because I claimed I was hit on the head. 

The truth was that they fired me because I chose to report my 

injury and the claim that I was not struck in the head was simply 

the best they could come up with. The railroad fired me even after 

I submitted voluminous pages of medical documentation specific to 

49

my head injury. The medical reports included the emergency room 

treatment of the day of the injury and the immediate months 

thereafter, not the least of which was extensive examination right 

here with doctors from George Washington University School of 

Medicine. 

The railroad chose to ignore both my statement and the volumes 

of medical proof of severe head injury. Nevertheless, I remained 

permanently fired not because of my work that night, nor because 

of my injuries, but solely because I chose to report my injuries. 

During the civil FELA litigation that followed, the railroad was 

required to produce that videotape. It was then that it was discovered that the videotape had been tampered with and a portion out 

of the middle of the tape, which proved that the hose under these 

circumstances would fly in the air up to 9 feet or more, was taken 

out. When this was brought to the attention of the court, the railroad acknowledge and admitted in court to the tampering of the 

videotape. The court made a finding that ‘‘a videotape recreating 

an equipment malfunction which was videotaped by Defendant 

Norfolk Southern and produced during the course of discovery in 

this case was deliberately and intentionally changed for the purpose of deception before it was provided to Plaintiff. 

Of particular concern to the court was the fact that the Defendant Railroad edited a significant portion from the videotape which 

helped substantiate the type of injuries Plaintiff received on March 

9th, 2001 by the malfunctioning and defective equipment, and 

which controverts the basis upon which Defendant Norfolk Southern terminated Plaintiff’s employment.’’

It was my belief then, and it remains my belief today, that I was 

charged and fired for daring to make an injury report so as to be 

made an example of and so that others in the future would think 

twice before filing a Federal Railroad Administration required injury report. 

I am aware of other colleagues of mine at the same yard—Arthur 

Richter, Michael Linkenbach, Susan Sheidler, and others—who 

have been similarly charged for allegedly filing false injury reports 

within days or hours of such reporting of their injuries. It is my 

belief, as well as the belief of others, that the purpose of such 

firings is to maintain a chilling effect throughout the Toledo area 

on the abilities and initiative of other injured people who might 

dare to report their injuries as required by the FRA. 

Thank you all for taking the time to listen to me today. 

Mrs. NAPOLITANO. Thank you for your testimony, sir. 

Mr. Charles Ehlenfeldt? 

Mr. EHLENFELDT. Yes, Ehlenfeldt. Good morning. I am a former 

employee of the Burlington Northern Santa Fe. On August 1st, 

2002, while operating a poorly maintained switch, I was injured. 

Since the accident, I have had two major back fusion surgeries. 

Despite this, the BNSF reported the cause of my injury to the 

FRA as a human factor. They blamed me for the injury. In my 

opinion, the BNSF did not accurately report my injury to the FRA. 

From the date of incident, I have been harassed, intimidated and 

treated unfairly by the railroad. 

I was called into the supervisor’s office almost immediately after 

the incident. Both the superintendent and train master were in the 

50

office. I had no union representation or even a neutral person with 

me at that time. The two officials closed the door and drilled me 

with questions. 

The BNSF used my injury to fire me. When I called BNSF and 

told them I could not work due to my back injury, the Burlington 

Northern Santa Fe would not allow that. I had to lay off sick rather than lay off due to my on the job injury. 

This counted against me in BNSF’s attendance policy. I was 

eventually to attend an investigation where they alleged I violated 

the policy. I had an on the job injury, and the BNSF was going to 

punish me for that. The worst form of harassment and intimidation 

came when the BNSF terminated me. 

On January 6th, 2006, while working on a train, I heated a can 

of soup in a sidewall heater. Engineers and trainmen do this because BNSF does not provide any way to heat food on a train. We 

often work 12 hours a day and sometimes must remain on the 

train for up to several hours more without access to food. When I 

opened the can of soup, it splashed on my face and burned it. 

I reported this incident to the BNSF as I was required to do. The 

BNSF then forced me to attend an investigation concerning this incident. Prior to the investigation, I gave the railroad a doctor’s note 

that I was unable to work due to my back injury. I was permanently terminated after this investigation. 

In the investigation, Randy Cartwright, Road Foreman, a Burlington Northern Santa Fe official admitted that it was common 

practice to heat food on locomotive equipment including sidewall 

heaters. Mr. Cartwright had been with the railroad since 1969, and 

he himself had used locomotive equipment to heat food. To my 

knowledge, he was never investigated by the railroad. 

He also testified that he knew that other people had used the 

sidewall heater to heat food in the past. Despite the railroad’s 

knowledge of this common practice, there was no rule against it. 

In his deposition, Mr. Cartwright was unable to explain, in his position as a railroad official, why I was fired and he was not when 

we both had engaged in the same common practice. 

I believe the facts of my case show that the Burlington Northern 

Santa Fe harassed and intimidated me because I was involved in 

an FRA reportable injury. 

In a time when I was physically hurting—I had two major back 

fusion surgeries and was in significant pain—the Burlington Northern Santa Fe made the conscious decision to kick me while I was 

down. They cut my healthcare insurance during the time I was 

scheduled to have my second major back surgery and, while in the 

hospital, they had my car towed. 

They brought trumped-up charges against me on two occasions 

and assessed discipline both times. The second trumped-up charge 

resulted in permanent dismissal. The only difference between my 

case and the numerous other employees that have done the same 

thing, including company officials, is that I had an FRA reportable 

injury. 

The pain I have endured through 13 hours of surgery and the 

long months of recovery pales in comparison to the emotional pain 

and financial stress that Burlington Northern Santa Fe has put on 

me and my family. 

51

Members of this Committee, thank you for listening to my story 

and taking on the issue of railroad harassment and intimidation. 

Individual employees, such as all of us here and many who are too 

scared to say, are not any match for the large railroad corporations, 

such as the BNSF. I believe we need Congressional action to solve 

this serious injustice. 

Thank you. 

Mrs. NAPOLITANO. Thank you, sir, for your testimony, and 

thanks to all of you for being here. 

Unfortunately, we are going to be recessing for about an hour 

until after the vote. We are currently just about ready to go for another vote, and I have been instructed to please ask for the recess 

for one hour. 

So, again, thank you so very much and please stand by. 

[Recess.] 

Mr. OBERSTAR. [Presiding.] The Committee will resume its sitting with, again, apologies to all, especially witnesses who have 

traveled a long distance to be here for this hearing and expected 

to be heard and to be heard in their entirety. 

None of us could anticipate all the procedural motions that were 

offered on the House floor throughout the morning and into the 

early afternoon and the consequential votes that occurred because 

of those procedural motions. But I think my message from the floor 

from both sides of the aisle—I think Mr. Buchanan can confirm—

is that we are safe for at least the next hour and a half. 

Mr. Jungbauer, Mr. Brunkenhoefer, very powerful, compelling 

testimony, Mr. Tolman, Mr. Cook, each of our individual accident 

victims who told their stories in very compelling ways, I thank you 

for your testimony. Thank you for having the honesty, integrity 

and courage to come forward and express your particular case. 

The purpose of this hearing is to give voice to those who have 

not been heard to an issue that has not be aired publicly in the 

hearing process and to seek redress. 

Mr. Jungbauer, you have had a lot of experience in the courtroom, experience intimately engaged with the experiences of individual railroad workers. Why do you believe railroads systematically underreport accident and injury? 

Mr. JUNGBAUER. Mr. Chairman, I believe, after studying this for 

quite a number of years, that there are programs that most carriers have that provide a financial incentive to middle managers 

and first line supervisors which, as I tried to say earlier, can cause 

even good people to turn bad. If it is a matter of whether or not 

they get a bonus or part of a bonus or promotion, people will start 

to put pressure on the injured people. 

I think that is what has gone wrong because I have done this 

long enough that at the beginning of my career I didn’t see this 

type of harassment. This is a much more recent thing that has gotten worse. Since about 1992 is about the best I can put a timetable 

on it, that it has really gotten worse since about then, major 

changes. 

Some of the other witnesses had said that the FELA is combative. I have had wonderful relationships with some major rail 

carriers where we did everything on a handshake, but things have 

52

changed. It is not just because of the FELA. It is because of other 

things that I can’t fully put a finger on. 

But in trying to think, to give advice to this panel, to this group, 

I think if we could convince railroads to get rid of the financial incentives to middle management and first line supervisors, that 

would go a long way to being able to protect our workers with the 

new legislation that has come forward and the legislation recently 

passed by the House. 

Mr. OBERSTAR. I am a little reluctant to raise it, but that is the 

Harriman Award because it was started for a laudable purpose to 

reward and recognize railroads that have excellent operating practices and injury-free and accident-free practices. It has been alleged 

that in the rush and the pressure to win the Harriman Award that 

railroads are repressing adverse information. 

Mr. JUNGBAUER. I believe that to be the case. 

Mr. OBERSTAR. Mr. Brunkenhoefer, you said that 80 percent of 

injuries are settled within the company or railroad. 

Mr. BRUNKENHOEFER. Yes, and Mr. Jungbauer corrected me. He 

says it is 90 percent. He said it was 90 percent. 

Mr. OBERSTAR. Ninety percent. 

Mr. BRUNKENHOEFER. A significant number are settled between 

the employee and the representative of the employer. 

Mr. OBERSTAR. Only 1 percent of cases go to trial. 

Mr. BRUNKENHOEFER. That is my understanding. 

Mr. OBERSTAR. How many cases does that represent? One percent is how many? 

Mr. BRUNKENHOEFER. I have absolutely no idea how many FELA 

cases are filed. 

Mr. OBERSTAR. Mr. Jungbauer, do you have any idea? 

Mr. JUNGBAUER. In my firm, if I try, we have similar statistics. 

We have to work the cases right up to trial, and that is a difference 

by the way. In the old days, there was not so much friction between 

the railroads and us. We could settle cases early which saved 

money for everyone, but now because of certain polices in claims 

departments where the operating people are having something to 

say as well as claims on whether or not a case can settle, that is 

what I believe is driving things right down the courthouse steps 

also. 

But I do believe, Mr. Chairman, it is a very small number that 

actually go to trial. Many, many cases go right to the courthouse 

steps, which is too bad. 

Mr. OBERSTAR. Mr. Tolman, do you have any way of knowing 

how many injuries are never reported? 

It is hard to prove a negative, but how many are not reported? 

Mr. TOLMAN. No, I mean we don’t have the statistics. I mean I 

think the credible witnesses on my left did a brilliant job presenting what is happening in the industry, and it is unfortunate 

that it shouldn’t be happening like that. 

The GAO did the study on those numbers that were presented 

today, 90 percent resolved before it got to court, 1 percent that did 

go to court, and we don’t have the numbers even on how many or 

what they were actually looking at. 

Mr. BRUNKENHOEFER. If I can interrupt, we have had regional 

meetings of where we will have 700 to 1,000 members, and I have 

53

said, anybody who believes that they will be injured and not be 

fired that works for a railroad, would you stand up? It doesn’t happen. So the perception among railroaders is if you have a reportable accident, you at least expect to be fired. 

Mr. OBERSTAR. Well, management obviously has the responsibility to distinguish among various kinds of behavior, to identify 

unsafe behavior and safe behavior, and to educate employees, work 

with employees on safe practices. 

Mr. Cook, are you aware of such practices within the railroad 

sectors? Do they have programs for employees on how to operate 

this, that or the other piece of equipment safely and conduct themselves safely? 

Mr. COOK. Yes, sir. In all my years with the railroad, the number 

one priority was always safety. In the last few years, as a past 

union representative is when I started seeing this trend to where 

they started disciplining people vigorously because of any injuries, 

but they have had safety programs for years and made them their 

number one priority. 

Mr. OBERSTAR. When Mr. Tolman says in the old days or Mr. 

Jungbauer, he means prior to 1992? 

Mr. COOK. Yes, sir, that is right. 

Mr. OBERSTAR. What caused this sort of demarcation point? 

What happened from 1992 on to change practices? 

Mr. COOK. I don’t really have a credible answer for you. All I 

know is what I have seen. I had never been injured in my career, 

so I didn’t have to face it, but I did represent a lot of members who 

were injured and none of them, up until the last few years, were 

targeted, stalked or intimidated until they were fired. That was 

their intent they have started in the last few years. 

Mr. OBERSTAR. Now Mr. Haskin and Mr. Knisely and Mr. 

Ehlenfeldt, the Federal Employers Liability Act, FELA as it is popularly known, enacted in 1908 was enacted at a time when railroading was the largest or one of the two or three largest employers in the Country. Railroading was the preeminent industrial activity. 

A job on the railroad was highly sought after, a very good paying 

job, better than working in the steel mills and, for a good many 

Americans, better than working on the farm. They went to work for 

the railroad. 

Railroads have, from time to time and I know in the last, oh, 

eight or ten years, suggested that these problems could be corrected. These problems of reporting and of assigning points and all 

could be corrected if FELA could be amended or rescinded, repealed 

and a worker’s comp type program substituted forward. What 

would you think about that? 

Mr. HASKIN. Mr. Chairman, in regards to my case, I have had 

a lot of time in the last six years since I was injured. Every day, 

four or five times a day, I am reminded that I got hurt, and so it 

is emotional at times for me to talk about it. It is something that 

I am very passionate about, that I would love to, if I can just make 

a difference and keep it from happening for one other person, then 

being here today or anything that I do is worthwhile. 

I truly believe that, without FELA, the day that I was injured, 

who knows? I might not even be here today to talk about it because 

54

I truly believe that once Claims showed up on the scene and took 

over the case, that that was the whole reason for we need to do 

something with him because his head hasn’t quit bleeding. 

I think, without FELA, it will be a graveyard in the railroad 

yards. I think there will be injuries, deaths, and I think the statistics will go straight through the roof when they are actually reported. 

Mr. OBERSTAR. Thank you. 

Mr. Knisely? 

Mr. KNISELY. Yes, sir, Mr. Chairman, I believe that we really 

need FELA desperately because as I believe it is one of the only 

programs that the railroad pays attention to when workers are injured. If we were going to go to workman’s compensation, I believe 

there would be caps on what the workers would be allowed to get 

as far as being compensated for lost arms, legs, catastrophic injuries. 

I just believe that the railroads pay much more attention to 

FELA, and the actual employees have much better ability and protection because the railroad does have to pay attention to FELA. 

So, therefore, I believe it is much more important to have that than 

workman’s compensation which I think could become corrupt easier 

than the FELA system. 

Mr. OBERSTAR. Thank you. 

Mr. Ehlenfeldt? 

Mr. EHLENFELDT. Yes, sir, I believe the reason they have FELA, 

especially in the rail industry, is when an accident does occur, a 

lot of them are pretty serious since the heavy equipment. When 

you do get hurt, you are probably going to have a good likelihood 

of getting hurt bad. I just feel that I guess I have to ask a question. 

Why would the difference between FELA and the labor act that 

they would like it to go to? Why would that matter of it being treating people like human beings? 

If somebody was hurt, why should it matter if they are subject 

to FELA or subject to State industrial tax or State industrial? Why 

would that matter? 

Why would this man have to sit there? He is lucky he is not dead 

for getting hit in the head and Mr. Haskin. 

I don’t really see why should that cause somebody to act like a 

decent human being to take care of somebody that is hurt? 

I don’t really understand the reason why they would want to get. 

Why would they want to get rid of it if everything is cool, if everything is okay? I don’t really see what. That is our only protection 

is the way I see it. 

Mr. OBERSTAR. Thank you. 

Mr. Buchanan. 

Mr. BUCHANAN. Thank you, Mr. Chairman. 

I want to thank all our panelists today for coming in. 

I am a guy that has been in business for myself for 30 years, and 

I have had my fair share of issues over the years, but primarily it 

has been the workman’s comp field. So this is something new for 

me today as I have to try to understand it. 

Let me just ask you. You had mentioned, Mr. Jungbauer, the 

thing about 1 percent go to trial. That doesn’t unreasonable. Are 

you saying that is high, low? You made that comment. 

55

Mr. JUNGBAUER. The reason I make the comment is if some people that are tort reform advocates say that civil cases such as 

FELA clog up the court systems. The fact is they don’t. The fact 

is that business litigation clogs up the court systems a lot more 

than civil cases do. So it is not a strain on the court system. 

As far as statistics that tort reformers might want to say that, 

oh, there is so much spent on this and that, if railroads would just 

be safe, carriers would be safe early, they could put lawyers out of 

business. Put me out of business. I don’t need to be here. I can find 

something else to do. Just be safe. 

Mr. BUCHANAN. I am the first one. I have had a lot of employees, 

and if we have someone that gets hurt, we are motivated to make 

sure they get back. We take care of them, do the right thing. I 

would think the railroads have that mind set. I don’t see why they 

wouldn’t want to deal with that in a positive way, but maybe I am 

wrong on that. 

But I can tell you that the proliferation, at least in the State of 

Florida, with trial lawyers has been enormous. It has put a lot of 

small businesses out of business. I was Chairman of the State 

Chamber two years ago, and we represent 137,000 businesses. But 

I can tell you a lot of lawyers in my case have created a lot of 

value, but it just seems like there is a lot of issues that sometimes 

get abused, not many but some. 

I was just trying to get back to the 1 percent comment you made. 

I think in the system that doesn’t seem because you are not always 

in workman’s comp either able to resolve all those issues all the 

time. One percent seems kind of normal or low. I don’t know if that 

is. I was only trying to get my understanding. 

Mr. JUNGBAUER. I think it is a low number. If 50 percent were 

going to trial, we would really be clogging up the court system. The 

fact is most cases can be settled. As I testified to earlier, if we can 

get claims people that will actually talk to us, we can settle cases 

early. 

In the old days, like at Burlington Northern, there was a guy 

Jack Lambrick, one of the best guys around. The biggest case I 

ever settled, I settled with him in 15 minutes because we had a 

trust with each other. 

Sioux Line, Chuck Nelson was one of the best in the Country. If 

I even made a flinch with my eyebrow, it could cost me money. He 

could read me so well. 

Those were good, honorable, wonderful people. If we can get back 

to that type of relationship of trust, lawyers can still represent 

their clients. 

The best thing is injured people won’t go to lawyers if they have 

a trust relationship with their carrier, with their employer. So if 

I was the employer and wanted to put lawyers out of business, I 

would just treat my employees better. 

Mr. BUCHANAN. Well, I think that should be the mind set, and 

that is what we have tried to do is do everything we can. 

As I was in the automotive retailing business part of my career, 

we had a lot of people dealing with the equipment and automobiles. 

So, safety and putting a lot of emphasis on that because we 

couldn’t afford to have our people be out of work, and so we would 

try to deal with it as aggressively as we could. 

56

Mr. Cook, let me just ask you in terms of your experience, what 

happens when someone gets hurt with the company you are with? 

How do they deal with it? 

What happens? What do you do when someone gets hurt? 

Mr. COOK. Mr. Buchanan, in my case, I reported to my immediate supervisor. They took me to the nearest local hospital, major 

hospital in Orlando. I sat in a wheelchair for nine hours. I had my 

vitals taken twice. 

About six hours prior to the nine hours expiring, we were told 

that I would be five or six hours being seen, and I told the supervisors after nine hours and twenty-one and a half hours on duty, 

if my back wasn’t hurting from my injury, it was now hurting in 

addition because of sitting in this wheelchair. 

So this is what happens. I could have been taken to another hospital, but instead we stayed in that one place which was a major 

hospital in Orlando. 

It was after that, that weekend, I was on my off days. They had 

told me to take an extra day off when I was due back to work to 

see how my back was doing, to attend a safety seminar which I did. 

When I tried to return to work the next three days is when I was 

besieged by these test teams who were ordered to do whatever they 

could to fail me to make me appear to be a person that was an excellent employee by record to a lousy employee within a matter of 

three days. That is what happened. 

Mr. BUCHANAN. You were working with CSX, is that it? 

What do you think? Why are they motivated? Why is the company motivated to do that in your opinion? 

Mr. COOK. In my opinion, we found out later what it was. It was 

what is called the action plan. They are ordered, the CSX officers, 

to label five bad actors in each terminal. 

You generally will not know, and I didn’t know that I happened 

to be on that list, but the only reason I was on the list was because 

I got injured. It was the first one in my career. I did everything 

to avoid it. 

But their orders are to increase the FRA testing, which is not 

meant to be disciplinary, and use it as a disciplinary tool in an effort to terminate you. That is going to be the final step. 

Mr. BUCHANAN. In your case, you are a good employee. Why 

would the company be motivated to do that? 

I am just trying to understand, myself. If I have a good employee, and I have had employees for 30 years that I have dealt 

with. If I have a good employee that is productive, I don’t understand why it is in the company’s best interest to terminate you and 

not get you back to work right away. 

Mr. COOK. Well, I agree with you, but in reality what they have 

done with this action plan and this point system or whatever you 

may want to call it, they have a created a method so that to terminate a person that is injured will send a message to following employees: Don’t report that injury unless you want to have the same 

thing happen to you. 

Mr. BUCHANAN. Mr. Haskin, what is the procedure with your 

company if you get hurt? Do you feel like they have the employees’ 

best interest in terms of safety and your health? 

57

I know you had a pretty tough incident, but I was just curious 

about from your standpoint. 

Mr. HASKIN. You know with having a father and a grandfather 

that worked for the Union Pacific for over 70 plus years combined 

or 80 plus years combined, when I was a young boy, I thought they 

did. I really grew up that way and thought it was a great place to 

work and felt the same way when I hired out. It shortly changed 

thereafter where I kind of saw how the changes were, the discipline, the intimidation when it came to injuries. 

Union Pacific, constantly on their web site, or they at least did 

when I was working—I assume they still do—would track FRA reportable injuries on the front page for each region. In my case, 

Kansas City was at the top of that list or was probably a number 

one when I was injured. 

You might say, well, what is big about an award? Well, these 

managers, the manager that handled me that day that I was injured has since been promoted twice and is now superintendent of 

a major city or major region. I think it is incentive to them. 

Obviously, we don’t know any financial or have any facts of financial gains for them but as far as promotions, I think my case 

speaks for itself, that this manager went right up the ladder. He 

had a pretty well stalled career for six or seven years prior to my 

incident and since then has been promoted to superintendent. 

I think it sends a sign to other managers that you be tough because in my case I know for a fact that how they treated me kept 

at least five to ten other people that had minor, smaller injuries 

than I did from reporting it because they were scared to death that 

they were going to be terminated. They would rather not report a 

sprained ankle or what have you because they didn’t want to lose 

their job over it. 

Mr. BUCHANAN. So what you are saying is if someone had a 

minor injury that got reported, they would be terminated. Is that 

what you are saying at this company? 

Mr. HASKIN. One hundred percent. I was also in 2003, and I will 

make this quick. In 2003, I became after the railroad told me. After 

they let me work for two years on a narcotic pain medication, they 

told me that I could no longer work. I became. I wanted to be active, and I wanted to do something about it because I knew that 

they couldn’t intimidate me financially because they already told 

me I couldn’t work. 

They couldn’t hurt me any worse than they already had with the 

headaches and everything else physically that I went through every 

day. So I decided that I was going to be somebody that they 

couldn’t intimidate. 

I personally watched the same little business and industry clinic 

that employees were taken to with the doctor, the specific doctor 

that they wanted to see. I watched that to where injuries weren’t 

reported. They might fill out an accident report, and it is the same 

as I did. 

I filled out an accident report, but the manager specifically said 

we are going to put this down as first aid. I was given first aid the 

day that I was injured. Okay, so it is not a reportable injury to the 

FRA if it is first aid. That is why none of the medication was prescribed to me. 

58

But one of my first cases that I had as a local chairman was an 

employee that sprained his ankle in the Kansas City yard, and he 

called me and said I sprained my ankle. I was like, well, you need 

to fill out an accident report. They have already told me they are 

going to fire me or they are going to have an investigation if I fill 

out this report. Anyway, I was like, so we talked. 

Long story short, they had him come to work for three days, and 

he sat in the crew room while they called another employee to work 

his job and that way it didn’t have to turn into an FRA reportable 

injury. He got paid by sitting on a couch in the break room for 

three days, three tours of duty, just so they would not have to report it to the FRA. 

Mr. BUCHANAN. That is unbelievable. 

Mr. Knisely, let me ask you, in your incident, did you receive 

prompt medical attention on behalf of the company or what happened there? 

Mr. KNISELY. Excuse me. Yes, sir, I did receive prompt medical 

attention. I was taken to the hospital that the railroad normally 

takes their employees when there is any kind of an incident. Like 

I say, they tried to coerce me not to make out a medical accident 

report which is required by the FRA to do. 

When I told them that, yes, in fact, I needed to go to the hospital, 

they did in fact take me. However, after I reported my injuries, 

even though they had records, they wanted to make an example 

out of me to send a chilling effect to any other employee that heard 

that I was injured so that they would keep them from reporting injuries which are required by the FRA to report. 

Mr. BUCHANAN. How did they coerce you? 

You said they coerced you. What do you mean by that? What did 

they do? 

Mr. KNISELY. Saying things like: Oh, well, you don’t feel that 

bad, do you? Gee, it was night time. Let me look. Oh, I don’t see. 

I don’t see any blood coming out of your head. There is no way that 

you could have been hit. Well, let’s just do this as a precaution. 

I was limping on one leg. I still had a lot of adrenaline going 

through my system and all the bruises hadn’t come to the surface 

yet. 

But that was their form of saying, well, gee, you don’t really, this 

isn’t really that bad or anything. So that was the way that they 

went about handling that situation at the scene of the accident. 

Mr. BUCHANAN. Thank you. 

Mr. Ehlenfeldt, what is the safety policy in your situation with 

the company? What was involved there? 

Mr. EHLENFELDT. The safety? 

Mr. BUCHANAN. When you had your incidents, how did the company respond? 

Mr. EHLENFELDT. Well, they basically put me on trial inside the 

office, trying to tell me that, just asking me questions on what happened, and then they tried to tell me how it could possibly happen. 

Basically, the crew that was with me, the engineer, he had over 

30. Maybe he had even 40 years experience, and the brakeman 

that was with me on that job was probably about the same amount 

of seniority. Both of them, I wasn’t going to turn in the injury beVerDate 0ct 09 2002 16:32 Mar 05, 2008 Jkt 000000 PO 00000 Frm 00080 Fmt 6633 Sfmt 6633 P:\DOCS\38568 HTRANS1 PsN: JASON
59

cause I was too scared to turn it in, but they could see that I was 

in pretty bad shape. 

So I had to drive about an hour because we were working at a 

remote location. When I told the superintendent there, the way he 

handled it was to drill me with questions about what happened, 

why did this happen, where did it happen, and tried to basically. 

They offered to take me to the doctor’s office, but I thought that 

I had just strained myself and figured I would be able to feel better 

if I just was able to lay down for a day or so. 

They called me and asked me more questions on not really how 

I was feeling or anything but of what happened, how I could possibly get hurt. 

When I finally found out that I really had severe problems, then 

when I returned to work for light duty, the local supervisors there 

would pull me aside and ask me why, different questions about 

why it was taking me so long to come back to work, when my next 

appointments were, why I would take so long to get certain appointments with a specialized surgeon, when my specific appointments were and why they had to be during time when I should be 

at light duty and why. It was just a big harassment about two or 

three times a week. 

I believe that if a guy gets hurt, from what I have been told by 

fellow employees, the railroad, the Burlington Northern anyway, 

they tried to assess any answer for an injury, that it is the employee’s fault no matter what it is. 

A recent injury that happened at Hauser, Idaho, in the last year 

or so, a fellow was walking at night, fell in a hole, injured his 

ankle, and they brought him into the office and questioned him for 

two or three hours before they would let him get medical attention. 

By that time, they had filled the hole, took pictures of where supposedly he had fallen in this hole. That is just kind of the way. 

That is the way they treat you. 

Mr. BUCHANAN. Well, thank you for your testimony. I want to 

thank all the witnesses. 

That is it for me, Mr. Chairman. 

Mr. OBERSTAR. Thank you, Mr. Buchanan. 

Ms. Brown, the Subcommittee Chair. 

Ms. BROWN OF FLORIDA. Thank you, Mr. Chairman. 

These are certainly some horror stories. I guess I want to start 

with you, Mr. Cook, but before that, I want to ask Mr. Haskin. 

When you had your accident, you indicated that you laid on the 

ground for two and a half hours and they didn’t take you to the 

hospital or anything? 

Mr. HASKIN. Actually, there was a maintenance away truck that 

was within 100 yards of where I was injured, and they took me 

over there and laid me in the bed of the maintenance away truck 

for the two. It was two hours. 

Ms. BROWN OF FLORIDA. Why didn’t you say something? 

You felt intimidated. I mean you were bleeding. You were injured. You needed medical attention. 

Mr. HASKIN. Right. Well, at the time, I was asked that question. 

I know my dad asked me that question. 

60

Ms. BROWN OF FLORIDA. Your mama had to make sure you got 

some help the next day. I don’t understand why you didn’t speak 

up. Maybe we can get to the root of this. 

Mr. HASKIN. Right. When I was injured, and obviously when you 

only get five minutes, you can’t tell all the details. I could have 

went on for 15 and added a bunch more horror details in there, but 

I tried to bring out the most important things. 

When I was laying in the back of the maintenance away truck 

and, as I said, the director of operations was on scene within five 

minutes after this happened and walked over. Showed up and 

walked over to the car that I was injured on first. Looked at for 

I don’t know how long it was. I mean I was a little groggy and 

didn’t know how bad it was. Then came to me and says. 

Ms. BROWN OF FLORIDA. You were bleeding? 

Mr. HASKIN. I was bleeding, laying back, laying down there. 

They didn’t have any first aid equipment in the truck. The only 

thing they could find was a towel that the maintenance away employee had in his front seat, and they applied that to my head. 

Ms. BROWN OF FLORIDA. I understand that the company wasn’t 

responsible, but why did you not say, listen, take me to the doctor? 

Mr. HASKIN. Yes, ma’am. 

Ms. BROWN OF FLORIDA. You felt intimidated? 

Mr. HASKIN. Well, the manager showed up and instead of saying, 

are you okay, the first thing he said was, how in the hell did this 

happen? 

Ms. BROWN OF FLORIDA. Okay, and your response should have 

been: I need help. Take me to the hospital. 

Mr. HASKIN. Right. 

Ms. BROWN OF FLORIDA. I would have done it. 

Mr. HASKIN. Absolutely. 

Ms. BROWN OF FLORIDA. But you felt intimidated? 

Mr. HASKIN. Absolutely. I knew that I had watched enough other 

people, employees that I knew, that when you get hurt on the 

Union Pacific, it is pretty well written law that you will have an 

investigation. No matter how the accident happened, you will have 

an investigation. 

I was scared. I was scared that I was going to lose my job. This 

is what I wanted to do since I was eight years old. 

Ms. BROWN OF FLORIDA. Yes, sir, I understand that. 

Let me find out. There are four of you that testified. Can you 

give me a couple of things? 

Give me your status, where you are now. I think several of you 

said you got fired. Did you get reinstated? Did you get money? I 

mean did you get taken care of and how would you recommend 

that we improve the system? 

Then I have other questions for the other speakers, but we will 

start with you, Mr. Cook. 

Mr. COOK. Ms. Brown, my status is, in September of 2006, I 

could no longer physically work. I couldn’t climb, sit long hours or 

anything else that had to do with engineer duties which is what 

I had been doing for 36 years. 

I had to apply for railroad retirement disability. That is where 

I am. I continue to go to doctors and chiropractors. They are not 

optimistic that I am going to ever get any better. 

61

I have exhausted all the medical changes I have. Not as serious 

as some of these guys are, but still I am not able to do my job because of my injury. 

Ms. BROWN OF FLORIDA. I understand that. So you are getting 

railroad retirement as we speak? 

Mr. COOK. Yes, ma’am. 

Ms. BROWN OF FLORIDA. All right, and Mr. Haskin? 

Mr. HASKIN. As I had said, December 1st, 2003, the railroad, the 

medical director sent me a letter stating that I had to have the doctors okay me to work or say that it was safe for me to work on that 

medication. None of them would. 

Ms. BROWN OF FLORIDA. I applaud them too. If you weren’t eligible, you should not be working. You should not have been working. 

Mr. HASKIN. Absolutely, and in hindsight that was a lot of the 

questions of why the Union Pacific medical director okayed me for 

two years to work on narcotic pain medication. Obviously, I wasn’t 

going to pull myself out because this was what I wanted to do forever, and I truly believed in my own heart that I was safe to work. 

In hindsight, looking back into the picture, there were times that 

I know that I wasn’t attentive as I what I needed to be. So they 

told me that I couldn’t work anymore. 

I was still local chairman at the time and continued to be. I took 

the local chairman’s position after, in January of 2004, after they 

told me I couldn’t work. I needed to do something and continued 

to do that until 2005. 

In 2004, my case went to trial. Speaking of FELA, and I know 

that that has been or FELA has been brought up a lot. In my case 

and you have heard my testimony, and the railroad knows all these 

facts. They knew them all at the time. 

It was kind of ironic. In December of 2003, they finally took responsibility that it was their fault to cause my injury, but for the 

two years prior to that, they denied it, completely denied it. 

My case went to trial in April of 2004. My attorney had been 

doing this for 27 years, and the day before trial he told me this is 

the first time I have never had not one nickel offered to settle this 

case, not one nickel. 

I had no choice but to go through, went in front of a jury and 

my peers, a 10 day trial. We put on 10 days worth of evidence. The 

railroad came back and put on 45 minutes worth, and the jury 

awarded me $3 million. 

Ms. BROWN OF FLORIDA. Okay. Mr. Knisely? 

Mr. KNISELY. Yes, ma’am. I am sorry. Could you repeat the question, please? 

Ms. BROWN OF FLORIDA. What is your status now? 

Mr. KNISELY. I am on occupational. 

Ms. BROWN OF FLORIDA. How can we improve the system? 

Mr. KNISELY. How can I improve the system? 

Ms. BROWN OF FLORIDA. No. We, Members of Congress, what can 

we do? 

Mr. KNISELY. Okay. First of all, I would say, and I want to thank 

everybody for doing all the work they did on the bill here, but I 

would recommend that we keep FELA. Do not allow workman’s 

compensation because of the great potential for abuse. 

62

I would say not only make the railroads themselves, meaning the 

company, liable for intimidation and those types of practices but 

possibly make the people, the immediate supervisors, have some 

kind of liability now because they are protected under the financial 

blanket of these very wealthy railroads. That is what I would do. 

I would make not just the railroads liable, but I would say if a 

train master or superintendent or local management was found to 

do things against the law, as in my case they tampered with tape, 

actually took out sections of tape which I would say would be illegal. The court did not approve of it, obviously. 

I would say make them liable also. I think that would help a lot 

as far as the harassment goes among the employees and the middle 

management people. 

Ms. BROWN OF FLORIDA. You got fired also, sir? 

Mr. KNISELY. That is correct, ma’am. 

Ms. BROWN OF FLORIDA. What was the end result? You took 

them to court and what was the end result? 

Mr. KNISELY. Okay, we settled out of court right before our court, 

as a matter of fact. The end result was there was a settlement. 

There is a confidentiality agreement which I am not supposed to 

talk about. 

Ms. BROWN OF FLORIDA. That is fine, but how would you encourage other employees because I don’t understand why let’s say the 

person sitting next to you didn’t speak up when he needed to go 

to the hospital? 

What we can do to ensure that if someone is seriously injured, 

that they will ask for assistance? 

Mr. KNISELY. What you could do is hopefully pass these laws 

that are in this bill, saying that an employee is protected if they 

do report their injuries and afford some sort of protection to the 

employee that they can’t be fired until it is proven somehow 

through not a company court but through some sort of substantial. 

I don’t necessarily know if it has to be a court system but some 

kind of a substantial panel that the railroad doesn’t own themselves. 

Ms. BROWN OF FLORIDA. Okay, the last person. 

Thank you, Mr. Chairman, for giving me a little extra time. 

Do you think an ombudsman would be helpful to have on the job, 

the last person? 

Mr. EHLENFELDT. I am not sure. I am not sure how they would, 

what the best policy would be, but I believe that the way they have 

it set up now is that your local management team in different terminals, you are basically stealing their money if you file, if you get 

hurt on the job. 

Ms. BROWN OF FLORIDA. You are speaking of bonuses? 

Mr. EHLENFELDT. Yes, and I think they take it. Instead of working as a job to take care of your fellow employee, I think they take 

it personal. I am sure there are a few good train masters or first 

line supervisors, but for the most part they are well aware that if 

you do get hurt on the job, it is going to affect their pay. 

I don’t know how you would have to go about eliminating that, 

but that is a big problem, I believe. 

Ms. BROWN OF FLORIDA. What is your status now? 

63

Mr. EHLENFELDT. I am just fired. I have not been offered any 

other jobs. After my first back surgery, I went and got good enough 

to pass the test for the physical ability test and went back to work 

for a couple of years. Then I was burnt, and they fired me, and that 

was it. So I was fired March 13th, 2006. 

I work a part time job now, and my wife makes enough money 

to pay the bills. Thank God, she has insurance because they had 

cut my insurance. I had to pay 550 some dollars every month just 

to cover myself. I couldn’t afford to do that, so she at least has coverage for me and our family. 

Ms. BROWN OF FLORIDA. Yes, sir. 

Mr. Chairman, are we going to have another round? 

Mr. OBERSTAR. Yes. 

Ms. BROWN OF FLORIDA. Okay. 

Mr. OBERSTAR. Thank you. 

The railroads have established hot lines for their employees to 

use. Are you aware of procedures? 

First of all, are you aware of the existence of a hot line, aware 

of procedures for calling and of what might happen if you do use 

that hot line or do you know of anyone who has used the hot line 

and what has happened when they have done? 

Mr. Tolman? Mr. Brunkenhoefer? 

Mr. TOLMAN. Yes, I have heard some war stories on the hot lines. 

When a particular individual reported an incident to the hot line, 

the very next day a manager approached him and accused him. 

What are you doing not working with us? You are going to do stuff 

like that. 

I mean the harassment and intimidation in the industry is very 

prevalent based on these stories. Until the railroads recognize that 

we have a problem and we need to address it by working together 

and cooperatively, these will continue. I don’t even know which 

railroad that was in particular. 

It is a good idea to have hot lines, obviously, to call in. Confidentiality isn’t always covered. I mean you can’t always. People recognize each other’s voices, et cetera, et cetera. 

The thing is the railroads, some of them recognize that they 

should change and have stepped up to the plate, but there is an 

awful big, big plate to step up to. That plate is a round circle, and 

when you are only doing a small percentage of it, a small percentage of the railroads or a little piece of it in one area, one geographical area or another, you are not going to resolve the problem. 

The CEO of any one of these major railroads could make a recommendation that we need to change this culture. However, the 

superintendent in ABC State doesn’t know what the superintendent’s directive is. The message doesn’t trickle down. Until the message really trickles down from the CEO to the superintendent or 

the train master that adversely affected these individuals here, we 

are going to continue having this problem. 

Some of the railroads have stepped up to the plate, I said. One 

of the issues at BNSF, after going through this process, I was surprised that it even existed. They have a 72 hour soft tissue injury 

reporting. So if you get a back injury or a soft tissue injury, you 

have up to 72 hours to report it. 

64

You have to report it immediately, but you have up to 72 hours 

if your knee feels better tomorrow. But if you say it initially, you 

are covered, so they won’t fire you for not reporting the injury. Now 

that is an issue that should be right across the board unequivocally. 

CP Rail, terrific new culture there, they understand that we are 

doing things wrong. They understand that labor has a piece to offer 

here and understand that profits can be better for all of us. Growth 

can be better for labor unions. Growth can be better for the railroads if they move in those directions. Now those are the things 

that we need to do. 

Some of the other railroads have stepped up to the plate and listened to our general chairman, who have stepped up and said this 

guy has been harassing and intimidating on this particular property, and they fired him. Those are the things that have to be done 

to change the culture, and hopefully we get there, Mr. Chairman. 

Thank you. 

Mr. OBERSTAR. Thank you. 

Mr. Brunkenhoefer? 

Mr. BRUNKENHOEFER. Just two things, one is that for my particular union, nobody is perfect, but Norfolk and Southern has 

moved forward to try to help solve the problem, and so we don’t 

want to condemn everybody all the time everywhere. There are 

some people that at least look like they have tried to take a step 

forward. 

On a carrier which I really don’t want to name unless pushed to, 

I got a complaint from the field. I wrote a handwritten letter, faxed 

it to the vice president of operations. I said: Attached is information. This is wrong, and I know you are the kind of guy that is not 

going to tolerate this. 

So he sent it back a division. They fired that superintendent, and 

they fired the guy who blew the whistle. So it left a real good message. Yes, they took care of the manager, but they took care so everybody in that terminal knows what happens if you complain to 

the boss. Yes, the supervisor got fired, but the worker got fired too. 

So why have a hot line? 

Mr. OBERSTAR. That was the next question. While they have and 

profess to have policies, is there any disciplinary measure taken 

against managers and supervisors, demoted, fired, that the opposite as you just said applies to the workers? 

Mr. Cook, are you aware of any such. Mr. Tolman did mention 

that just a moment ago. 

Mr. COOK. Not on our railroad, Chairman Oberstar. In fact, with 

the action plan, they are encouraged to target, stalk and intimidate 

you until they do fire you. 

Mr. OBERSTAR. The CSX Safety Action Plan is what you are talking about? 

Mr. COOK. Yes, sir. 

Mr. OBERSTAR. It instructs supervisors to identify and target 

their five most ‘‘at-risk employees’’ for monitoring. 

Mr. COOK. Right. 

Mr. OBERSTAR. How do you classify that? How do you describe 

that? 

Mr. COOK. Well, I don’t know how they——

65

Mr. OBERSTAR. Does that qualify as harassment? 

Mr. COOK. Well, what they are going to do according to the terms 

of that plan is that you will not know that you are one of those 

at-risk persons, but if you get injured, you are going to be at risk. 

You are going to be one of the five. 

If you try to move to another terminal to avoid scrutiny, you are 

going to be placed on the new terminal’s list. In your original terminal, there will be a vacancy, and they will add another bad actor. 

So they are going to keep a list of people that they are going to 

target. 

Mr. OBERSTAR. It sounds to me like the old days of blackballing 

in the iron ore mining industry. 

Mr. COOK. Yes, sir, it does. 

Mr. OBERSTAR. They have a list. If you are an at-risk person, you 

don’t know it. It doesn’t take long before someone has reported 

what you said at the pool hall or in the barber shop, and then you 

are out. 

Mr. COOK. That is right. 

Mr. OBERSTAR. Ms. Fallin, any questions? 

Ms. FALLIN. Thank you, Mr. Chairman. 

I just came into the meeting, so I missed out on a lot of the discussion, but I was interested in some of the comments made about 

the harassment and intimidation as I have just heard a little bit 

of the testimony. I guess not knowing a lot about this issue because 

I missed part of the testimony, but I would think that the union 

leadership might be able to protect against some of the harassment 

and intimidation. 

Now I don’t know how the system works, but is there not a better way for the union membership to be able to protect the employees once they are a member of that group? 

Mr. BRUNKENHOEFER. There is an expression. I come from Houston. It is called you can beat the rap, but you can’t beat the ride 

which means in the inner city that they can arrest anybody and 

take them to the police station. 

In the case of what we have to do is when we have an employee, 

it takes any place from one to three years to get them before a tribunal, and so you are working with a person who is injured. You 

are working with a person who is vulnerable with having bills 

come to. You are working with a person that will be glad to come 

back after a very short period of time, almost anytime, because the 

foreclosure notice comes in the mailbox long before we can get the 

hearing done, and so that delay, it works against a solution. 

Now if you get down to the end, you may win. But by that time, 

you have probably compromised. The cases that we have, that we 

end up having to go all the way through the process, those are by 

far our weakest people that have no hope because if they have any 

hope at all, if you will go back and sign a document that says, gee, 

it was all my fault, your house note is paid that month. Your kids 

have dental care. 

So the process is so strung out that it works against us, but we 

try the best we can. 

Ms. FALLIN. How can we streamline that process where it doesn’t 

take one to three years? 

66

Mr. BRUNKENHOEFER. Well, if I can kind of move off, we would 

like to get the root of what the issue is. 

We believe that the carriers have an award called the Harriman 

Award. This is an award they give to themselves that is based on 

FRA documentation, but it is garbage in, garbage out. The railroads report to FRA. Then FRA takes those same numbers that 

they have and say you are the best railroad based on the numbers 

that you gave me. 

Then you are able to go to Hartford and go before your insurance 

people and say, I am a safe railroad and I am an award winner. 

The difference between the premiums that they have to pay and 

the premiums that the best railroads have to pay get incentivized, 

the process by which it goes back then down to the line managers 

who, at not all railroads but at some railroads, are given again 

once a situation of a quota. 

From Tulsa to Dallas is my territory. I live in Oklahoma City. 

I get the boss who sits down and says, you get five injuries, you 

are okay. If you get a sixth injury in your territory, we are going 

to whack you $10,000 off your bonus. 

And so, that is supposed to be your incentive to go out and enforce safety. Instead, it is our belief that it is an incentive to cover 

up. The process works to the advantage, that to us, it is no different than an Enron, that you get bonuses for the trades that you 

didn’t do. 

This case is there is a tremendous amount of pressure for the 

guy who is also a supervisor trying to raise kids and pay college 

and all. Over here is $10,000, and over here is an employee that 

if I can talk him in whatever method out of filing that report, that 

is my kid’s college education. That is Norman or Stillwater or 

wherever. 

So they become incentivized, and so they are put in a bind. In 

other words, I don’t want to maybe not report, but if I do report 

that he is injured, then I am not going to get my money. It is layer 

upon layer. 

It is not one simple thing that says it is an interpersonal relationship. If you work for a small company, the odds are you have 

a very good relationship with your employees and know them at 

first hand. So you know which ones are good and which ones are 

bad. 

But when you work for somebody that has 50,000 employees, the 

process is significantly different. So the person in Oklahoma City 

is really taking orders from Chicago, and to me that is part of the 

problem. 

What we have to do is take the incentives out of the system that 

rewards what I call fraud and reward. The guy who is the biggest 

fraud gets the biggest reward, and the guy who tells the truth gets 

his pay cut several thousand dollars. The incentive ought to be who 

reports the most and who gets those situations corrected. Instead, 

we punish the ones who tell the truth. 

Ms. FALLIN. Okay, thank you very much. 

Mr. OBERSTAR. Thank you. I think that was a very revealing response. 

Ms. Brown, the Subcommittee Chair. 

Ms. BROWN OF FLORIDA. Thank you. 

67

I want to change the subject just a little bit, but before I do that, 

Mr. Ehlenfeldt, I want you to give us your resume. We are going 

to spread it around because I think we can do some employment 

here. He is not working. Somebody is going to offer him a job hopefully. 

Now I have a question for Broken Rail. You and I had a little 

talk in the hall, and I want you to know that I am very concerned 

about the influence that the hedge funds are trying to have over 

the railroad industry and the way it operates. If hedge funds, like 

the Children’s Investment Fund, were to get their way, they can 

tell what would happen to the railroads’ ability to make capital investment and safety improvements. 

In the Brotherhood of Locomotive Engineers and Trainmen, there 

is an article, and it quotes and the Times-Union also reported that 

they, that the hedge funds caused this Dutch bank to break up. 

While the investors got money, we lost 550 jobs in Jacksonville, 

Florida. 

I guess my question for you, do you think that hedge fund investors care anything about union workers or anything other than how 

they invest their money? 

Mr. BRUNKENHOEFER. I think they care as much as Michael 

Ward does. 

Ms. BROWN OF FLORIDA. Now Mr. Ward is not here to defend 

himself. 

Mr. BRUNKENHOEFER. Neither are the hedge funds. 

Ms. BROWN OF FLORIDA. I will meet with them, but I ask you 

and perhaps you are not going to answer my question. 

Mr. BRUNKENHOEFER. I will be glad to answer the question. 

Ms. BROWN OF FLORIDA. Well, answer it. 

Mr. BRUNKENHOEFER. Yes, ma’am. The hedge funds are essentially about the governance of a corporation. It is not unique to 

CSX that people feel that the current management is not doing 

well. There is a term that is used some of the time. It is called 

greenmail, to get a settlement to make the hedge funds go away. 

Our particular problem involves only one employer, and that is 

one in your district. They have led us to believe, through over a 

long period of time, that they do not particularly want the members of our unions to be their employees. They have been rewarding 

Mr. Tolman’s union with what we believe are jobs. He will disagree, and I will have a respectful disagreement. 

So we have tried to work through the issue. In the process of 

wanting to work through the issue, we have been met by silence. 

We don’t talk, and it is not us that is not talking. 

So we have somebody that comes in and says, we would like to 

talk to you. We would like to have dialogue with UTU, and let’s 

see about changing management in such a fashion to get a management in place that wants to have dialogue with us. We are shut 

out of the process. 

Ms. BROWN OF FLORIDA. Okay. My question to you, and Mr. 

Oberstar constantly raises this issue all the time. It is very important that we know history. My question for you is when it comes 

to the hedge funds because they have come in and destroyed 550 

jobs in Jacksonville, Florida. My question to you is do you have any 

information how hedge funds view unions, period? 

68

Mr. BRUNKENHOEFER. It depends on the hedge fund. I know that 

I had lunch with a fellow by the name of John Snow, and Mr. Snow 

and I had a lengthy conversation in a friendly way about UAW and 

Chrysler and their next contract. Mr. Snow also leads a hedge 

fund. 

Some of them are horrible, horrible. Some of them sit down at 

the table. That is how I want to say Weirton Steel was saved. 

There are other groups, and so it will depend, hedge fund by hedge 

fund. 

Our circumstance is we have a group of people who will talk to 

us. We have another group of people who will not talk to us. I 

think it is kind of automatic that when that happens, you are going 

to turn to someone who wants to sit down and have a conversation 

with you, and so that is what is going on. 

Ms. BROWN OF FLORIDA. Well, I think conversations go both 

ways. 

Mr. BRUNKENHOEFER. Yes, ma’am. We will be more than happy 

to sit down and talk. 

Ms. BROWN OF FLORIDA. All right. I yield back, Mr. Chairman. 

Mr. BRUNKENHOEFER. I would like the privilege to come to your 

office and listen. 

Ms. BROWN OF FLORIDA. I don’t have any other questions for this 

panel. Does anyone else in this panel want to make any closing remarks? 

Yes, sir. I am sorry. I didn’t have a question for you, but you 

wanted to make a comment. 

Mr. JUNGBAUER. If I could, yes. There are a couple other things 

that I think would be nice to be addressed. 

One is what is called the availability policies that a lot of railroads are putting into place. What these are is they are trying to 

have quotas for people to work a certain number of days, a certain 

number of hours. The real problem is employees that want to go 

back to work after they are injured and if the railroad says if you 

don’t work X number of hours, you are not an employee anymore. 

Now what kind of a rehab program is that? 

You ask the question, can unions do anything about it? If they 

won’t talk to the unions. I have people I have represented, and we 

have said to union people, can you do anything about it? BNSF 

says they will not talk about availability policy. They won’t do it. 

They like it. They won’t talk about red-green that we talked about 

before. 

The things that we are finding out, these abusive programs, we 

have to get court orders or have whistleblowers give them to us to 

find out about them. So it is really frustrating to try to represent 

folks and help them to get better, help them to move on when these 

carriers are so mean to them, so rotten. 

Ms. BROWN OF FLORIDA. In closing, what do you recommend that 

you think needs to happen to improve the system? 

Mr. JUNGBAUER. Well, number one, I think that passage, the bill 

that has passed the House with Section 606 and it needs to be 

passed by the Senate. I would hope that this hearing, if you can 

get the message to the Senators, I can’t imagine any Senators out 

there saying I am in favor of harassment. Go run on that next 

term. 

69

They shouldn’t be in favor in harassment. They shouldn’t be in 

favor of carriers saying we want the right to harass our employees 

to prevent them from getting medical care. So that is number one. 

Number two, we have to see how well the——

Ms. BROWN OF FLORIDA. Excuse me. So you are saying step one 

would be to pass the safety bill? 

Mr. JUNGBAUER. Yes. 

Ms. BROWN OF FLORIDA. Okay. 

Mr. JUNGBAUER. Definitely. 

Ms. BROWN OF FLORIDA. You think there are provisions in there 

that will strengthen the problems that we are discussing today? 

Mr. JUNGBAUER. There are some. With regard to the employees 

who are denied medical care, yes. With regard to other employees, 

it is the previous bill that can work. 

What I am worried about, frankly, is that you have a very short 

statute of limitations, 180 days, and if you have to turn your report 

into the Secretary of Labor, what if the Secretary of Labor doesn’t 

want to help? Are you left of limbo? 

I am not sure of that. I have to go back and look at the bill. So 

I think you may need to look one more time in another session if 

this isn’t working. I would hope, though. 

The last thing I would say is if the members of you, when you 

talk to carrier officials, ask them, will you promise us today that 

you will go home and you will eliminate these programs of harassment? Just promise us today that you will do that. 

I think that would be because they will listen to these folks. See, 

if you passed bills, they would go home and say, fix it. But they 

are not going to fix something unless they know what the sense of 

Congress is. We need to know the intent of Congress. Once we 

know that, they will listen, the courts will listen and everything 

will be safer. 

Thank you. 

Ms. BROWN OF FLORIDA. Sir, thank you very much. I assure you 

I don’t believe one of them will tell me that they are doing what 

you are suggesting. 

Mr. JUNGBAUER. As long as you ask them the question, that is 

good. 

Ms. BROWN OF FLORIDA. Thank you. 

Mr. OBERSTAR. I want to thank this panel for your candor, your 

straightforward, heartfelt testimony. 

I will affirm that our Section 606 in the Rail Safety Bill goes a 

long way to addressing the issue of harassment, gives new authority to the Federal Railroad Administration. It was language that 

was not adopted idly or easily. It was thoroughly discussed, debated, negotiated with the minority on the Committee, and we 

have a consensus bill. That is why it passed with such an overwhelming vote in the House. I hope the Senate will act upon it. 

I want to thank again the panel for your testimony today. I think 

it is very illuminating. 

We will dismiss this panel and call the next panel: Mr. David 

Brown of CSX, Mr. Mark Schulze for BNSF, Mr. C.J. Wehrmeister 

of Norfolk Southern, Mr. Robert Grimaila for the Union Pacific, 

Ms. Faye Ackermans for the Canadian Pacific, Mr. Hamberger and 

70

Mr. Sherman Joyce, President of American Tort Reform Association. 

I ask all the witnesses to stand while Mr. Miller gets your names 

out there for you and your water. Raise your right hand. 

Do you swear that the testimony you are about to deliver to this 

Committee will be the truth, the whole truth and nothing but the 

truth, so help you God? Thank you. 

I want to say to this panel that you have been very patient 

throughout this long day. We didn’t anticipate being here, starting 

with this panel at nearly 4:00, but that is the way the House floor 

works. You have had an opportunity to hear all the preceding testimony, and now is your opportunity to respond. 

We will start with Mr. Hamberger. 

TESTIMONY OF DAVID BROWN, VICE PRESIDENT AND CHIEF 

TRANSPORTATION OFFICER, CSX CORPORATION; MARK 

SCHULZE, VICE PRESIDENT OF SAFETY, TRAINING AND OPS 

SUPPORT, BURLINGTON NORTHERN SANTA FE CORPORATION; C.J. WEHRMEISTER, VICE PRESIDENT, SAFETY AND 

ENVIRONMENT, NORFOLK SOUTHERN CORPORATION; ROBERT GRIMAILA, SENIOR AVP, SAFETY, ENVIRONMENT AND 

SECURITY AND CHIEF SAFETY OFFICER, UNION PACIFIC 

CORPORATION; FAYE ACKERMANS, GENERAL MANAGER, 

CORPORATE SAFETY AND REGULATORY AFFAIRS, CANADIAN PACIFIC RAILWAY; ED HAMBERGER, PRESIDENT, 

AMERICAN ASSOCIATION OF RAILROADS; SHERMAN JOYCE, 

PRESIDENT, AMERICAN TORT REFORM ASSOCIATION 

Mr. HAMBERGER. Thank you, Mr. Chairman. I do appreciate it. 

Mr. OBERSTAR. Who, I might say, does a superb job on behalf of 

the railroads as the President of their association. He is very attentive. He attends these hearings. He is learning to develop a new 

set of iron pants. 

Mr. HAMBERGER. Yes, indeed. Speaking of which, I want to thank 

you and Chairwoman Brown and Congresswoman Fallin for being 

here as well. 

Notwithstanding the fact that it is not 1992, I do want to emphasize that these are good, honorable, wonderful people who do their 

job every day to try to make this industry safer, and we appreciate 

the opportunity to be here and to, as you put it, tell our side of the 

story. 

You opened the day today, Mr. Chairman, by talking about your 

father and his commitment and your commitment to safety, and we 

share that focus on safety. For railroads, operating safely is not an 

option; it is an imperative. 

Railroads are currently at the forefront of advancing safety from 

a technology standpoint as well as an operational standpoint, and 

the overall U.S. rail industry safety record is excellent. In aggregate, 2006 was the safest year in the history of the industry, and 

2007 is on track to be even better. 

According to the U.S. Department of Labor, railroads today have 

lower employee injury rates than other modes of transportation 

and most other major industry groups including agriculture, construction, manufacturing and private industry as a whole. We have 

71

an employee injury rate well below those of most major foreign railroads. 

Let me just get right to a couple of themes that have been running through this hearing today. The first one is the claim that 

railroads intimidate and harass rail employees when the employees 

are notifying the FRA of an injury or illness or when reporting a 

hazardous condition. Likewise, it has been claimed that railroads 

regularly and as a matter of course deny, delay or interfere with 

medical treatment given to employees. These claims are not accurate. 

Let me be clear. Railroads reject the use of harassment and intimidation against their employees and agree with your opening 

statement, Mr. Chairman, that it is just not right that an injured 

employee is not given immediate medical attention. That violates 

FRA regulations. It violates internal operating procedures. It violates the internal regulations and safety plans of each of these railroads. There is a zero tolerance policy within the industry for violation of these policies. 

Now my colleagues on the panel will describe in more detail the 

many programs and initiatives the individual railroads have established to ensure accurate reporting of workplace injuries and timely 

treatment of injured employees. 

Of course, no industry, especially one with some 185,000 employees, is completely free of mistakes or transgressions, and therefore 

my colleagues can also attest to the fact that swift disciplinary action will be taken against any supervisory employee who withholds 

or interferes with medical care to injured employees or who intimidates and harasses employees. 

The second theme running through the hearing today is that we 

need to establish a culture of safety through cooperative relationships with our employees and not a command and control environment. At the outset, I think we have to agree that any organization 

has to have some sort of command and control. Given the danger 

of freight railroading, that has given rise to very detailed rules and 

the need for meticulous adherence to those rules. 

The safety of the individual employee, his or her fellow employees on the job and, of course, the communities in which we operate, 

given the materials that we are forced to haul through those communities, demand adherence to strict operating safety procedures. 

At the same time, there is a need for cooperation and collaboration 

to get everybody involved, to get the bottom of safety issues and get 

to the root cause of safety problems. 

Each of our railroads has a myriad number of programs in place 

in cooperation with labor and is striving to reach that proper balance of collaboration and command and control. That is true in any 

environment, in any institution around the Country, in any part of 

the economy. 

There has been some talk about the Federal Employers’ Liability 

Act, and I would be remiss if I didn’t finish by mentioning it myself. This 99 year old statute serves as the railroad industry workers’ compensation system. 

The vast majority of employees in the United States are covered 

by, as you pointed out, Mr. Chairman, no fault worker’s compensaVerDate 0ct 09 2002 16:32 Mar 05, 2008 Jkt 000000 PO 00000 Frm 00093 Fmt 6633 Sfmt 6633 P:\DOCS\38568 HTRANS1 PsN: JASON
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tion systems where workers are compensated for work-related injuries regardless of the fault; not so for railroad employees. 

In order to receive compensation under FELA, railroad employees must prove their employers’ negligence caused the injury. If the 

employee’s negligence is found to have contributed to that injury, 

compensation is reduced accordingly. Under FELA, when a rail employee is hurt on the job, he or she and the railroad become adversaries, where each side is incented to blame the other for the injury. 

From a safety perspective, nothing could be more counterproductive. This adversarial relationship breeds mistrust, hampers 

and delays investigations and fosters the blame game that you 

talked about earlier, Mr. Chairman, rather than the collaborative 

approach that we want to see, where the employees and the railroads can sit down and address the root cause of accidents or near 

accidents. 

Now I don’t care how many of these cases go to trial or how 

many of them get settled or how many of them hire lawyers. That 

is not the point. The point is the adversarial relationship that is 

inherent in a negligence-based worker’s comp system. 

It is something that I think you could learn a lot about, frankly, 

from Faye Ackermans, and I hope you will ask her to talk to you 

about the difference that she lives with every day because, of 

course, she operates both north of the border in Canada where 

there is a worker’s comp system that is not negligence-based and, 

of course, they operate major mileage here in the United States 

under FELA. I can’t get into it, obviously, but I hope you will take 

the time to ask her what difference that means in the culture of 

each of those operations in Canadian Pacific. 

My time is up. I do want to thank you for staying here today to 

listen to these men and women who have come here to talk about 

the effort that they put in every day to make our industry safer 

and thank you for everything you do to help our industry as well. 

Mr. OBERSTAR. I thank you, Mr. Hamberger. Was there something else you wanted to add in your opening? Your time really has 

not expired. 

Mr. HAMBERGER. I appreciate that. 

Mr. OBERSTAR. The five minutes has gone but if there is more. 

Mr. HAMBERGER. These are the experts, and I would prefer to 

yield back the balance. 

Mr. OBERSTAR. Okay, thank you. 

Mr. Brown. 

Mr. DAVID BROWN. Mr. Chairman and Committee Members, 

thank you for this opportunity to address this very important matter. 

I am David Brown, Vice President and Chief Transportation Officer of CSX Transportation. My responsibilities include ensuring a 

safe operation on CSX’s 23-State system. I have over 26 years experience in the railroad industry. I have been with CSX since May 

of 2006 and have considerable experience with railroad operations 

and safety reporting protocols. 

I would like to discuss CSX’s safety programs, training, technology and capital investments that we have made to make our 

73

railroad even safer and especially our parallel commitment to the 

fair and ethical treatment of all of our employees. 

First, a little bit about recent safety improvements because we 

are proud of what we have accomplished: Our managers and employees are expected to perform their work and interact with each 

other consistent with our core values, very important to us, and 

they include safety. One injury is one too many, and our ultimate 

goal is an accident-free, injury-free workplace. 

Our employees, through safety programs that I will talk about in 

a minute, are achieving great success. For example, FRA reportable 

train accidents have improved 44 percent since 2004. Human factor-caused train accidents—these are the accidents caused by 

human error—have improved 56 percent since 2004. FRA reportable injury rates have improved 46 percent in that same period. 

During the first nine months of 2007, 149 fewer employees on CSX 

were injured than during the same period of 2006. 

CSX employees are delivering service more safely and successfully than ever in our history. CSX safety improvements do not 

mean we are satisfied. To reach our safety goals requires continuous improvement, and we want to send every employee home in 

the condition in which they report to work. 

We have a variety of key programs that support continuous safety improvement. These programs include management-labor safety 

committees at the local, at the division, regional and system levels. 

Training on operating safety rules for our employees is key. We do 

root cause analysis of accident injuries to learn how to prevent 

them. 

Formal leadership training for supervisors and labor safety coordinators is ongoing, and full time labor safety coordinators at each 

of our 10 divisions are an integral part of our safety process. We 

have also enhanced safety through capital investments and improvements to our infrastructure. 

Also, we have an innovative program to handle rule infractions. 

Adherence to safety and operating rules is essential to maintain 

safe railroad operations. Improved compliance has been a key factor in the safety improvements that I mentioned earlier. 

The individual development and personal accountability policy, 

IDPAP, builds on our belief that the vast majority of our employees 

want to do the right thing and do their jobs in a professional manner day in and day out. Their heart is really in the right place. 

The policy states clearly that managers must provide fair and 

consistent treatment to all employees using alternatives to formal 

discipline wherever appropriate when an infraction occurs. For all 

but the major offenses, the policy provides for a progressive approach and includes a non-punitive opportunity to correct isolated 

instances of unsafe behavior. 

In recent past years, we have modified our policy to focus even 

more on education when an infraction occurs, so that we can move 

forward with improved performance. 

Let me be very clear. CSX is fully committed to the complete and 

accurate reporting of all workplace injuries and accidents, and we 

are equally committed to ensuring that no harassment or intimidation occurs that may limit reporting in any way. 

74

We will continue to focus on these important matters and have 

made changes in several areas. Training is ongoing for managers 

in the proper and timely reporting of injuries or accidents. We are 

also continuing to communicate our policies that clearly forbid intimidation or harassment of employees to prevent reporting or 

proper medical treatment. 

This training makes it clear that managers should not discuss reportable criteria with an injured employee or treating hospital personnel. They should not try to change a doctor’s recommendation 

and should not discuss discipline or rules infractions when arranging treatment for an injured employee. 

We also have directed that internal investigations of any report 

of intimidation or harassment are immediately investigated. We 

have a zero tolerance policy, and we conclude that investigation 

within a 30 to 60 day time frame, depending upon the complexity 

of the incident. In addition, discipline where appropriate will be assessed within 30 days when a case is decided. 

CSX maintains an ethics hot line, as we heard talked about earlier today, that any employee, manager or outside party can access 

by calling a widely-known, widely-published toll-free number. This 

call then is received directly by or internal audit group, which investigates each and every call to the hot line. Some of those investigations have led to discipline against management and employees 

who have not followed proper protocols for reporting injuries or 

who have engaged in isolated instances of intimidation or harassment. Those actions have included dismissals, demotions, reductions in compensation, reprimand and coaching and counseling 

where warranted. 

I hope my comments are helpful to this Committee. We regret 

that any incident of intimidation or harassment has occurred with 

respect to injury reporting and pledge our continued vigilance to 

prevent future occurrences. CSX’s core values state it best: people 

make the difference. And our employees are our most valuable resource. 

CSX would also invite the Committee to examine the overwhelming data related to the company’s significant and sustained 

improvements in safety, service to our customers and re-investment 

into the rail infrastructure over the past few years. These results 

are evidence of a commitment to safe, reliable and efficient rail 

transportation. 

CSX is similarly committed to fair and equitable treatment of our 

employees. Throughout this period of continuous improvement, the 

company has worked to improve relationships with employees 

while fostering a safer workplace. That work will continue. 

Thank you. 

Mr. OBERSTAR. Thank you, Mr. Brown. We appreciate your statement. 

Mr. Schulze? 

Mr. SCHULZE. Thank you, Chairman Oberstar, distinguished 

Members of the Committee. My name is Mark Schulze, I am Vice 

President of Safety, Training and Operations Support for the BNSF 

Railway Company. In my previous position, I was general manager 

of transportation on BNSF’s Texas division. Thank you for the opportunity to be here today. 

75

In my testimony to you, I want to make three key points. First, 

safety in the railroad industry has improved enormously over the 

years. That is not a product of managed reporting, that is a fact. 

Ten, 20, 30 years ago, more employees were getting hurt and there 

was more risk in rail accidents. 

Second, our railroad safety plans are important. At BNSF, we develop our safety processes with a thoughtful balance between employee empowerment and accountability. Railroading is and always 

will be a unique work environment. The factory work force 

stretches across vast distances. In many instances, our employees 

are independent operators, substantially self-directed in their work. 

The routine work of handling heavy moving equipment in an outdoor environment makes adherence to uniform safety rules even 

more important. That adherence to safety processes and eliminating at-risk behaviors can be life or death critical. 

Third and most importantly for the purposes of this hearing, 

there is no place in our railroad for harassment or intimidation, 

neither for meeting safety goals nor for managing employees. 

BNSF has zero tolerance for harassment, intimidation or discrimination. Our position on that is clear. 

At BNSF, safety is our number one priority. A safe railroad 

aligns with every aspect of our corporate vision; return, corporate 

citizenship and being a valued employer. Our safety vision is to operate accident-and injury-free. This is about our employees going 

home after work injury-free, not about managing to statistics. We 

believe our vision is achievable, because we believe every accident 

is avoidable. 

All employees in BNSF are empowered to take responsibility for 

their own safety and the safety of their colleagues and our communities. They are expected to take that initiative to stop work processes when they feel safety may be compromised, and they do. Like 

all U.S. railroads, BNSF is required to comply with all safety regulations of the Federal Railroad Administration. We utilize a federally-mandated operations testing program to confirm that our employees are working safely and in adherence with those requirements. Tests under that program occur in the normal operating environment and require employees to show understanding of the 

concepts involved in our operating rules. The majority of our employees show clear demonstration of those requirements. 

To assist our employees in properly understanding those safety 

processes and policies and improve their performance, BNSF offers 

state of the art training. The vast majority of our employees are 

committed to working safely, and our safety program is aimed at 

respecting that commitment. However, with any human organization, a small percentage of employees are either risk-takers, distracted or do not maintain awareness of consequences for their actions. We are focused on identifying those employees who present 

risk to themselves and others through an employee review process. 

As with any solid risk management program, this process allows 

us to appropriately focus our safety resources. This employee review is a problem-solving process that does not impact an employee’s employment record, nor is it in any way related to discipline. 

Coaching, training and understanding the employee’s perspective 

are at the heart of this process. 

76

In a safety-critical work environment, accountability for compliance with safety processes matters. Our goal at BNSF is to consistently but fairly apply employee accountability so that the seriousness of safety rule violations is appreciated. Our accountability 

policies are designed to encourage all employees to be actively engaged in safe work behaviors and in ensuring a safe work environment. 

Formal discipline, whether an employee personal record notation, 

suspension or termination, represents a very small percentage of 

follow-ups to rules violations. The vast majority of rules infractions 

are handled through coaching and counseling by supervisors. BNSF 

additionally has alternative handling agreements that include 

training and other non-disciplinary, non-punitive responses to identified or self-reported rules violations in lieu of formal discipline. 

Lastly, BNSF’s injury handling and safety reporting policy clearly outlines supervisory responsibility regarding injury reporting 

and medical treatment. Our injury handling and safety reporting 

has been communicated extensively to supervisors in a number of 

ways. Employees can report harassment or intimidation many 

ways, such as to the Federal Government, internal management or 

even an anonymous third-party toll-free hot line. All concerns are 

then investigated by appropriate personnel and reviewed by senior 

management. 

Taken together, we believe we have processes and procedures 

and a culture that rejects harassment and intimidation and promotes a cooperative approach to safety. Much of our safety program 

was developed in cooperation with labor unions over the years, and 

we will continue to improve our processes with their input and 

commitment to safety. In fact, General Chairman Pat Williams of 

the BLET was wanting to testify also at this meeting just to talk 

about the extensive labor cooperation that we do have, the general 

chairman, local chairman and local level. 

At the same time, we do not believe the management of employee 

expectations and accountability is harassment or intimidation. 

Thank you. 

Mr. OBERSTAR. Thank you, Mr. Schulze. 

Mr. Wehrmeister? 

Mr. WEHRMEISTER. Chairman Oberstar, Ranking Member Fallin, 

Members of the Committee, thank you for the opportunity to testify 

here today. I am Charles Wehrmeister, Vice President, Safety and 

Environment, of Norfolk Southern Corporation. My responsibilities 

include personal injury safety, highway-rail grade crossing trespasser initiatives, and environmental and hazardous materials 

training and response initiatives. 

At the outset, I would like to state unequivocally that any type 

of supervisory conduct which delays medical treatment of injured 

employees or has the effect of discouraging the reporting of accidents or injuries is absolutely prohibited at Norfolk Southern and 

is not tolerated. Safety at Norfolk Southern begins with our corporate vision, and that is to be the safest, most customer-focused 

and successful transportation company in the world. 

First, please note that I have identified safety at NS as a process. It is not just a program or a list of responsibilities neatly cataloged in a dusty three-ring binder. It is a living, breathing process. 

77

It is our culture, a way of life for a committed group of men and 

women 30,000 plus strong. Safety is the way Norfolk Southern people do business. 

It is also about prevention. Even before an injury occurs, our goal 

is to prevent incidents and injuries by being proactive rather than 

reactive. Safety has been an evolutionary process at Norfolk Southern, and we have developed in stages over the years from a very 

top-down process to mutual participatory safety and on now to an 

even higher level of safety awareness that I call voluntary safety, 

in which our people actually participate, just because it is the right 

thing to do. 

As a result of our employees taking ownership of their safety 

process, NS’s people have earned the E.H. Harriman Gold Medal 

Award each year for the past 18 years. As you know, this award 

is presented to railroads for their outstanding performance in safety. In the last 7 of 11 years, an NS employee has also received the 

Harold F. Hammond Award, which is presented annually to an individual railroad employee in North America for outstanding 

achievement. The 2006 winner was Kenneth Cheek, a mechanical 

department employee from Bellevue, Ohio. 

At the Harriman ceremony this year in May, in a video presentation, Mr. Cheek talks about the commitment Norfolk Southern 

people have for each other and for their safety process. A copy of 

that transcript is on my expanded presentation. 

Norfolk Southern’s people celebrate our safety success each year 

at a big expo and awards meeting, unique, I believe, unto our industry and perhaps all of American industry, usually held in 

March of each year. Chairman Oberstar, Ranking Member Fallin 

and Members of the Committee and staff, I would like to issue an 

invitation to you to join us and we would be truly honored to have 

you in attendance. 

The keystone of our safety process and injury prevention effort 

is our bedrock Six Point Action Plan outlined on page 5 of my prepared statement. Our efforts are reinforced also by NS’s strict adherence to our Internal Control Plan, adopted pursuant to FRA 

regulations, which prohibits all employees from taking actions to 

delay the receipt of proper medical care for injured persons. This 

ICP expressly prohibits any form of intimidation or harassment 

that would have the effect of discouraging the reporting of accidents or injuries. Furthermore, the plan imposes disciplinary action 

against an employee or supervisor who commitments any such harassment or intimidation. 

Some years ago, a joint United Transportation Union-Norfolk 

Southern task force was formed to review Norfolk Southern policies 

and procedures in this area. NS encouraged UTU to bring to our 

immediate attention any instance in which it believed an employee 

injury had not been handled appropriately. UTU has done so one 

to three times a year. Each time, we have conducted a thorough investigation. All supervisory officers involved, and in some cases, 

the employees bringing the complaints as necessary, were interviewed personally by Norfolk Southern’s Executive Vice President 

of Operations and our Vice President of Labor Relations. NS believes this process has been constructive and the United Transportation Union has told us that it does, too, and that our investigaVerDate 0ct 09 2002 16:32 Mar 05, 2008 Jkt 000000 PO 00000 Frm 00099 Fmt 6633 Sfmt 6633 P:\DOCS\38568 HTRANS1 PsN: JASON
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tions, they have told us, have provided thorough and honest responses to the issues we were asked to address. 

In many of the cases, Norfolk Southern determined the handling 

of the employee injury had in fact been appropriate and complied 

with company policy and our ICP. However, where we found that 

it had not, appropriate discipline was assessed against our supervisory officers. 

In conclusion, I would like to reiterate that Norfolk Southern 

Management indeed has zero tolerance for any delay in providing 

medical care. We have learned from our past mistakes, and I am 

personally convinced the message has gotten through to all levels 

of supervision. Procedures are in place to ensure that supervisors 

understand that an employee’s health and safety are our first priority. 

Thank you very much. 

Mr. OBERSTAR. Thank you, Mr. Wehrmeister. 

Mr. Grimaila? 

Mr. GRIMAILA. Chairman Oberstar, Ranking Member Fallin, my 

name is Bob Grimaila. I am the Chief Safety Officer for Union Pacific Railroad, and I thank you for the opportunity to testify today. 

At Union Pacific, safety is our first priority. This means that ensuring every one of our 53,000 employees does their job in a safe 

manner and returns home safely every day. Our safety program is 

a commitment to a vision and process aimed at creating a total 

safety culture. Our goal is zero accidents, and we have systematic 

practices and policies for managing our programs and reporting. 

Unfortunately, accidents do happen sometimes. Our internal control plan, our ICP, and our safety policy specify how our managers 

are to handle personal injuries and the associated reporting. 

This ICP is posted system-wide and it spells out the complaint 

procedures available to all employees to report a potential violation 

of policy or an instance of suspected harassment. Reporting is done 

on a confidential basis and with the assurance of no retaliation. 

We are committed to complete and accurate reporting of all accidents, incidents and injuries arising from the operation of the railroad. UP will not tolerate harassment or intimidation of any person 

who seeks medical treatment or reports an accident. Disciplinary 

actions, up to and including termination of employment, will be 

taken against any employee who commits a violation of this policy. 

In fact, we have issued 61 cases of discipline and have dismissed 

4 high level managers in just the last few years for violations of 

this policy. 

Today we are moving beyond the traditional command and control approach to safety. I will briefly describe three programs we 

have in place now at Union Pacific. First, as you know, we are required by the FRA regulations to test employee competency in our 

operating rules. I have covered our program improvements in my 

written testimony, showing that we have moved to a progressive 

system with a much greater emphasis on coaching and training, 

rather than discipline. In a process that was developed in partnership with our labor people, rules offenses are now regularly handled with coaching and training and employees gain credit for demonstrating rules compliance. 

79

In addition to gearing our testing program to favor constructive 

coaching, we are also working to share the day to day responsibility 

for safety management with our employees. Our total safety culture, or TSC, is a peer to peer safety engagement process. Its goal 

is to fundamentally change the safety culture at the railroad. TSC 

has employees watching out for each other in a manner that reinforces safe behavior, and in a voluntary and non-punitive way. It 

is a formal observation and feedback process where an employee 

will observe and comment on another employee’s behaviors at 

work. They look for and identify and correct unsafe behaviors rather than looking for rules violations or taking exceptions. 

This is done without direct management involvement, but with 

full management support. Where this peer to peer concept has been 

implemented, it has produced dramatic safety improvements, as 

employees actively watch out for each other. Union Pacific’s North 

Platte, Nebraska service unit is currently engaged in one of the 

most progressive safety programs in the history of the rail industry. We found that accidents are often preceded by close calls or 

near hits. Through a pilot program developed, again, with our 

unions and with the FRA, a confidential close call reporting system 

has been established. Employees are free to report a close call without fear of discipline. The data gathered is used to develop a safer 

operating environment. This means that safety information that 

would otherwise not be reported is now collected, and it allows the 

local team, labor and management, to identify and manage risk on 

a proactive basis. While this type of close call reporting system has 

become common in the airline industry, it is revolutionary in the 

rail industry. We are finding that it enhances partnerships, trust 

and communication across all parts of the organization. 

We will always need programs to ensure our employees are competent in the rules and that they can demonstrate safe behavior at 

work. We are working diligently to do this by creating a total safety culture with our employees. We are doing this in partnership 

with our employees. The programs I have mentioned today are evidence of steps we are taking to form a safety culture based on collaboration, respect and trust. 

That concludes my statement. I would be happy to answer questions. Thank you. 

Mr. OBERSTAR. Thank you very much. That is very enlightening 

testimony. 

Ms. Ackermans? 

Ms. ACKERMANS. Chairman Oberstar, Ranking Member Fallin, 

my name is Faye Ackermans. On behalf of the Canadian Pacific 

Railway, thank you for the opportunity to address this Committee. 

For the past decade, as General Manager of Safety and Regulatory Affairs, I managed the safety function at CP. This included 

train accident cause finding, FRA reporting, FELA claims, safety 

program development and delivery, operating rules and practices, 

regulatory and security oversight. 

While on the surface it looks like my job has been to make the 

railway a safer place to work, in fact my most important job has 

to been to change the safety culture at CP. I have concentrated on 

two areas: changing attitudes on how we deal with the mistakes 

80

people make at work, and putting processes in place to reduce the 

potential for human error to cause accidents. 

All humans make mistakes every day. At CP, we have systematically tried to understand how and where human error plays a role. 

We developed a world-class set of investigation tools, which we call 

the investigation of safety-related occurrences protocol. This protocol is designed to investigate all aspects of the work system, determine multiple causes of occurrence, determine appropriate and 

effective corrective actions. 

ISROP has improved the quality of both our investigations and 

our corrective actions. The impact of ISROP within the mechanical 

department at three locations in Canada is currently being evaluated by the Federal Railroad Administration . A final report is expected in 2008. 

You have heard today the railroads described as militaristic or 

command and control. In this culture, rules are created, people are 

trained to follow the rules, and when a rule is broken, punishment 

is required to ensure the person who broke the rule won’t do it 

again. CP has been slowly moving away from this model. We have 

introduced an understanding of the human factor into our safety 

processes: how and why people make mistakes; what systemic 

changes can be made to avoid or trap errors. This has made us 

much more conscious of where processes may be vulnerable or 

where defenses may be lacking. 

This is a journey. The progress we have made is still fragile. 

There are wide disparities within CP on acceptance and use of this 

approach and the various tools that we have introduced. There is 

much more work to do. But we are trying to move from a culture 

that blames the individual who ultimately makes the final error in 

the chain of accident causation to one where we ask system-based 

questions; such as what defenses failed, how did they fail, and how 

can the system be made more resistant. 

However, we are not talking about a system free of accountability. Rather, we need to create a balance between necessary discipline and an environment where employees freely report incidents without fear of unreasonable, adverse consequences. This is 

what is known as ‘‘Just’’ reporting culture, based on the concept of 

justice. CP is actively pursuing the ‘‘Just’’ reporting concept in two 

ways. The first is the FRA-supported confidential close call reporting system, which you have just heard from Mr. Grimaila. The 

United Transportation Union, the Brotherhood of Locomotive Engineers, Teamsters, and CP management are partnering with FRA in 

this effort. We will be the second FRA-supported C3RS pilot site, 

and we very much appreciate the efforts the FRA has made to advance and support this program. 

Equally, we are pleased with the contributions made by our labor 

colleagues. C3RS holds great potential to improve safety in this industry. 

The second is an internal dialogue at senior levels of the operating department begun one year ago about the future role of formal discipline and how to change our discipline practices. We have 

sent senior staff from operations, safety, human resources and 

labor relations to educational seminars on ‘‘Just’’ reporting culture. 

In early October of this year, we also introduced the topic to the 

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top 125 operating and safety officers at our semi-annual safety conference. This effort I call a work in progress, don’t know where it 

is going to lead, but we are looking for some answers. 

When accidents do happen, CP has policies and procedures in 

place, as required by FRA, for reporting personal injuries, train accidents and serious rules violations. These policies articulate whistleblower protection and consequences for both managers and employees of interfering with these reporting procedures. CP also has 

policies and processes to deal with unacceptable behavior or performance. Our positive behavior and performance development policy is designed to identify and change unacceptable performance 

behavior to recognize good performance and to acknowledge an employee’s satisfactory achievement of change and development. Its 

focus is on coaching and improving performance. 

Where informal coaching fails to achieve the desired changes, formal coaching may be used. This step is intended to clarify responsibilities and confirm performance expectations. An employee who 

demonstrates success and consistently fulfills their responsibilities 

for 24 months is removed from the automatic progression to the 

formal discipline process under the collective bargaining agreements. If formal coaching fails to improve behaviors or technical 

job performance issues, the next step is formal investigation/discipline under the applicable collective bargaining agreements. 

Finally, I want to touch a bit on CP’s safety performance. CP’s 

vision is to be the safest, most fluid railway in North America. We 

are achieving results. In the past decade, train accidents have fallen by 61 percent and personal injuries by 72 percent. Human factor 

train accidents on CP are currently about one-third the rate seen 

in the rest of the U.S. rail industry. CP’s safety success is a testament to union-management commitment and involvement in hundreds of safety, health, training and business process activities. 

Safety is not a bolt-on activity or afterthought. It is how we do 

business. Our employees recognize our efforts. On employee insight 

surveys conducted by an internal consultant every two years, safety 

gets high marks. Seventy percent of our employees agree or strongly agree with this statement: ‘‘I feel that workplace safety receives 

appropriate attention here.’’

Safety culture or shared beliefs and values is the manifestation 

of the day to day practices that employees encounter as they go 

about their work. CP has been striving to create a more people-centric approach to safety. This is a long journey. Culture change 

takes a long time. But I believe we are focused in the right direction. 

Thank you. 

Mr. OBERSTAR. Thank you very much for your testimony. 

Mr. Joyce? 

Mr. JOYCE. Chairman Oberstar, Representative Fallin, thank you 

very much. 

I am here today not as a railroad person. You have heard from 

a number of the leading experts on the railroads. I am here to talk 

about our litigation system. In particular, I would like to highlight 

some of the overarching challenges that we see within our legal 

system and how they have manifested themselves within the 

FELA, a sense about how this unique statute dealing with railroad 

82

employees and their employers and workplace injuries changes the 

nature of that relationship and how this Committee might improve 

the FELA or even consider replacing it with an alternative. 

Very briefly, and Mr. Hamberger touched on this, but prior to the 

enactment of the FELA nearly 100 years ago, all workers in this 

Country, not just railroad employees, faced almost insurmountable 

burdens to receive compensation when they were injured in the 

workplace. For railroad workers, however, the FELA in 1908 did 

make that better. It improved their status, and it was considered 

a progressive reform and helped them at that time. 

We believe, however, that that status as a progressive statute 

was, in fact, quite short-lived. Literally at almost the same time, 

workers compensation laws were adopted around the Country. To 

amplify the points made earlier, the FELA continues to be a faultbased system, requiring the proof of negligence on the part of an 

employer with respect to the injury of an employee. By contrast, 

there is no need to prove negligence in a workers compensation 

context. A worker simply needs to demonstrate that there was an 

injury, and that that injury occurred within the scope of employment. 

Now, workers comp systems are not perfect, and they are certainly not free of litigation. Litigation about what constitutes the 

scope of employment is not uncommon. We do believe that it is beyond debate, that workers comp is the clear trend in the law. 

Moreover, while the FELA allows for settlements, we heard discussion about that, at its core the FELA does something that is 

also, I think, quite significant and has been discussed as well. That 

is the creation of an adversarial relationship between employer and 

employee. The compensation mechanism under FELA litigation has 

several problems that I will mention very briefly. 

As a general matter, litigation creates delays. As a general proposition, it takes longer to compensate people when they go to court. 

That includes cases that may settle on the courthouse steps. Tort 

litigation also as a secondary matter is uncertain. Frequently we 

see in all areas that an award of X amount in one set of circumstances may be far less or far greater under identical circumstances in a different case. 

Last is efficiency. A recent study that we have reviewed finds 

that less than 25 cents out of every dollar expended goes actually 

to compensating injured parties. 

FELA’s shortcomings, though, are not limited to those broader 

policy issues. No doubt, Members of this Committee have heard 

about some of the most egregious abuses in our civil justice system, 

the Milberg Weiss case over securities litigation, and Judge Janice 

Graham Jack down in Corpus Christi, Texas with some silicosis 

litigation. I won’t go into details on these cases. They have a common theme, though, and that is that these lawsuits demonstrated 

that some small number of plaintiffs’ lawyers put the interests of 

their own selves and their firms ahead of compensating any injured 

people. These lawsuits were driven for their benefit and not for the 

benefit of injured parties. 

We have seen in the FELA context, according to public records 

cases, a case where four employees at the United Transportation 

Union pleaded guilty to racketeering for accepting payments of as 

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much as $30,000 from personal injury lawyers. More recently, we 

have seen out of West Virginia a case involving CSX, a plaintiff 

named Rodney Chambers and his lawyer, alleged to have committed fraud against CSX by submitting a medical report. That 

medical report was certified by a Dr. Oscar Frye. Dr. Frye has 

never been located and the address he gave in Huntington, West 

Virginia is fictitious. CSX is bringing a separate legal proceeding 

against Robert Gilkison and his employer, the Pierce Law Firm, 

which at one time was Mr. Chambers’ counsel, at the time of the 

Dr. Frye episode. Interestingly, one of the co-conspirators’ was a 

Dr. Ray Herron, who came under criticism as one of the doctors 

mentioned in the silicosis lawsuits in Judge Jack’s lawsuit down in 

Texas. 

ATRA believes very strongly that it is important to recognize 

that the adversarial nature of employees in the railroad context is 

unique. As you consider both regulatory and litigation issues, that 

needs to be taken fully into account. We also would point out that 

in enacting compensation statutes, this Congress twice, under the 

Federal Employees Compensation Act, as well as the Longshore 

and Harbor Workers Compensation Act, has enacted reforms more 

akin to workers compensation, with its no-fault type structure. 

As you look at this situation and consider the interests of both 

management as well as employees, we strongly encourage you to 

weigh the distinctions between the no-fault systems that are out 

there and, what we believe, is an antiquated system: FELA. No 

system is so good that it can’t be changed. We believe at a minimum it should be improved. We would be pleased to work with 

you on alternatives to the FELA. 

Thank you. 

Mr. OBERSTAR. Mr. Joyce, thank you. Do you have some suggestions? Do you have some written ideas for legislative changes to the 

FELA system, short of repealing it? 

Mr. JOYCE. We would be happy to provide you some. I didn’t 

come with any today, but if you are interested, we would be happy 

to develop those. 

Mr. OBERSTAR. For the record, I would appreciate having that. 

Mr. Brown, we have in our files the CSX Safety Action Plan for 

the southern region. It instructs supervisors to identify and target 

their five most at-risk employees. How is that not an intimidation 

program? 

Mr. DAVID BROWN. Thank you, Chairman Oberstar. 

That program was briefly in effect in 2006 on part of our system. 

I think you heard mentioned earlier, sometimes a well-intended 

program can have unintended consequences. So as we began that 

program, looked at it, really were focused on the understanding 

that in any group of employees, on any team of employees, you always have some who have strengths and weaknesses. You want to 

focus on developing people around their weaknesses, so the team 

gets stronger. 

After we saw how that went into practice and the issues that 

came from that in terms of the allegations of intimidation and harassment, certainly not our intentions whatsoever, we quickly 

moved away from that. We put that program aside, it doesn’t exist 

any longer. 

84

Mr. OBERSTAR. It is no longer company policy? 

Mr. DAVID BROWN. No, sir. It was only in effect for a few months 

until that sort of grassroots result occurred. We just said, well, let’s 

move on from this. We are focused on leadership development. We 

are really focused on returning results through our leadership in 

a very positive, engaging type of coaching style leadership that 

some of my colleagues mentioned here today. That is where we are 

moving forward. 

Mr. OBERSTAR. We have heard a great deal of testimony, and we 

have a great deal of information in our Committee files as a result 

of inquiry and investigation done over a period of time about a 

points system. Now, Mr. Brown, you are moving away from, or 

have abandoned the action, Safety Action Plan, because of, as you 

call it, unintended consequences. How many of you still have in 

place a points system that rates employees with point rating up to 

a certain maximum where they then become a problem employee? 

Mr. SCHULZE. We do at the BNSF Railway. We have a system 

in place today. 

Mr. OBERSTAR. You do have a point system? 

Mr. SCHULZE. That is correct. It is the employee review process 

that I referenced. 

Mr. OBERSTAR. Mr. Wehrmeister? 

Mr. WEHRMEISTER. We do not. At Norfolk Southern, we endeavor 

to annually have a performance appraisal done between employee 

and supervisor in the privacy of an office, not on the train, not out 

in the shop, where in a pre-arranged fashion, the supervisor takes 

time to assemble materials that he or she knows that have to do 

with the employee. We meet with individuals who have not been 

injured and we meet with individuals who may have been injured 

to talk about their performance overall and how the supervisor and 

the employee might jointly improve. It has very positive results. 

Mr. OBERSTAR. You don’t rate employees under this process by 

how many accidents they have had? 

Mr. WEHRMEISTER. We do not, no, sir. 

Mr. OBERSTAR. Or whether they have frequently been in accidents? You don’t do that? 

Mr. WEHRMEISTER. We do not, sir. 

Mr. OBERSTAR. Mr. Grimaila, at UP? 

Mr. GRIMAILA. Mr. Chairman, we do have a tracking system for 

rules compliance. It does not include any points for tracking of personal injuries. 

Mr. OBERSTAR. How do you track the individual, then? 

Mr. GRIMAILA. Under the provisions of Part 217 of the FRA, we 

have an employee testing program for rules compliance, and we 

note the success or lack of success in their ability to demonstrate 

competency on the rules. 

Mr. OBERSTAR. But when an employee has an injury that is reported, you don’t put a point alongside his name or a marker? 

Mr. GRIMAILA. That is correct, we do not use points or a marker 

that has anything to do with the personal injury, no. 

Mr. OBERSTAR. Mr. Schulze, what is the purpose of the point system at BNSF? 

Mr. SCHULZE. The employee review process, we believe, is a solid 

risk management process, somewhat modeled off other safety leadVerDate 0ct 09 2002 16:32 Mar 05, 2008 Jkt 000000 PO 00000 Frm 00106 Fmt 6633 Sfmt 6633 P:\DOCS\38568 HTRANS1 PsN: JASON
85

ers in other industries. Dupont has an employee process, a little 

less formal than what we have. We believe it gives us a way to 

identify individuals who might be exhibiting at-risk behaviors, 

whether through human factor accidents, certain types of injuries 

or through rules violations. 

It is a non-punitive, non-disciplinary piece. It is where we can sit 

with the employees, go through coaching, counseling and additional 

training, whatever they need. Whatever might be distracting them 

or whatever help they might need. 

Mr. OBERSTAR. Each of you are denying the existence of what the 

employee panel said in fact exists. 

Mr. SCHULZE. Denying—what was that? 

Mr. OBERSTAR. The existence of a point rating system that finds 

and rates problem employees. You are denying what they said earlier, denying the existence of what they said earlier, is that correct? 

Mr. SCHULZE. No, when you first asked, I said we do, at the 

BNSF Railway, we do have a point system. 

Mr. OBERSTAR. Yes. But you are saying you don’t use that to rate 

employees for punishment or use it for other purposes. But the employee panel said that is exactly what the railroads are doing, rating the employees and then finding them to be problem persons 

and to eventually be dismissed. 

Mr. SCHULZE. It is not part of their discipline. It is not on their 

employee transcript. It is a way to identify people that we might 

need to work with through, again, additional coaching, counseling, 

training, whatever they might need in order to——

Mr. OBERSTAR. What happens under, how many points does an 

employee have to get to be subject to counseling? 

Mr. SCHULZE. Currently on the transportation side, it is 89. 

Mr. OBERSTAR. Eighty-nine points. At that point you call, not you 

but the human resources person calls that employee in and counsels the person how to operate more safely? 

Mr. SCHULZE. The employee’s supervisor would work with that 

individual. They would have monthly interviews, discussions that 

would take place either during the 6 month period or 12 month period, depending on the tenure of the employee. 

Mr. OBERSTAR. Okay. We have a few more minutes before we 

will have to go and vote. Ms. Fallin. 

Ms. FALLIN. Thank you, Mr. Chairman, and thanks to all of you 

for coming today and presenting your testimony. In my former 

State, I headed up a commission to reform workers compensation 

for our business industry in our State. My number one goal was 

to prevent the injury in the first place. That is my best form of protecting the workers, and helping to lower workers compensation 

cost or any type of injury cost in the workplace itself. So I was interested in your comments about how you have programs in place 

to allow injured workers to report injuries, or even to report any 

type of safety concerns or even potential mishaps that might occur 

on a job that can be at risk for injury. 

I was interested in the Chairman’s comments about the point 

system and how you rank injuries and how you help evaluate different job classifications that might be at risk for injury. Just 

thinking back, as an employer myself who had maintenance workers who worked in one of the jobs I used to work in years ago, that 

86

I wanted to know who was at risk for injury, so I could prevent the 

injury in the first place. As I said earlier, it helps you to lower your 

costs on your insurance premiums and also helps protect your 

workers, which should be your number one goal, because that will 

help you as a business with your profit margins and with your employee relations. 

So I guess in listening to the comments about a point system or 

how you evaluate risky levels of professions within your railroad 

industry, why wouldn’t you want to protect your employees and 

find out those different job skills that might be vulnerable to having accidents? 

Mr. GRIMAILA. There is no reason not to do it. In fact, it is incumbent upon us to understand that the person driving that train, 

perhaps hauling hazardous materials, is qualified, has demonstrated competency, and that we know they have a good working 

understanding of the rules. That is what we do with our testing 

programs. We need systems like that to keep track of and watch 

for risk emerging in that type of operation. 

Ms. FALLIN. Are there any statements that were made by the 

previous panel that gave testimony that any of our witnesses on 

this panel would like to make comments on? 

Mr. SCHULZE. I guess I will take a couple. On one, on the bonus 

system, there was perhaps a hypothetical that talked about an employee that had operations between Tulsa and Dallas, and the employee said, or the supervisor said, you get five injuries, you get 

six, you lose $10,000 of bonus. I am assuming that could have been 

pointed toward our railroad, because we operate between those territories. 

We don’t have an incentive compensation or a bonus structure 

anything like that. There is a portion of all management employees 

and a large number of our union employees that their overall compensation, a small percentage of it, is tied to safety. And that is 

tied to the overall corporate safety number. So the frequency ratio 

or severity ratio that the FRA tracks, whatever that is for the company, all management employees and a large number of scheduled 

employees participate at a certain level. It is not tied down to the 

individual local level how many injuries might take place on a local 

territory. So we would like to make that clarification. 

Ms. FALLIN. Yes, Mr. Joyce? 

Mr. JOYCE. There was discussion in a previous panel about how 

many lawsuits go to verdict, and whether that was unusual. Our 

experience across different areas of our civil justice system is that 

really very few do, in fact, go to verdict. I would take a little bit 

of issue with the idea that a case has to go to verdict to have a 

potential clogging effect. The reality is that a lot of cases go considerably pretty deep into the whole process before a settlement may 

be reached. 

And again, just coming back to the overarching point about workers compensation, I think there was a sense of, well, we are never 

going to get as much. The reality is that there is a certainty to 

workers compensation. It can always be adjusted. And the clear 

trend, as I discussed a moment ago, is very much in the employment context. That trend is clearly toward the no-fault type of situation. 

87

Ms. FALLIN. Let me follow up on that. I heard one panelist say 

on the previous panel that it took one to three years to get a claim 

settled. Do you have suggestions on how we could help injured 

workers get their medical care quicker and their settlements 

quicker? 

Mr. JOYCE. Well, I think that the workers compensation system 

is quicker. It tends to be. We saw data from, I think a web site of 

a law firm that represents FELA claimants, saying that they take 

up to two years generally to bring, or 22, 23 months to bring a 

claim. I think clearer, simpler processes, recognizing that there is 

a need to compensate someone. There are tradeoffs involved, obviously, and the potential higher awards that you can see through a 

court verdict are a consideration. But balanced against that is the 

need not to have to prove negligence on the part of an employer. 

I think it has been judged overall to be a pretty reasonable tradeoff. 

Ms. FALLIN. Sir, did you have a comment? 

Mr. WEHRMEISTER. Thank you, Ranking Member Fallin. Yes, 

please. Reference was made on the previous panel by one of the 

gentlemen about an incident surrounding an incident on Norfolk 

Southern. For the record, I would like to point out that that happened some six plus years ago, and as that gentleman pointed out, 

there was indeed a mutual settlement amongst the parties and a 

confidentiality agreement was signed. 

Notwithstanding that fact, though, and for the benefit of this 

Committee, if it be of help to you, I have the tapes in hand that 

were spoken of. If deliberation on this matter requires your seeing 

the tapes, I would like to convey them today and/or provide them 

later with as many copies as may be necessary for the Committee. 

Ms. FALLIN. Thank you very much. 

Mr. OBERSTAR. We will receive that for the record, and we are 

going to have to recess at this point. We have two votes, motion 

to recommit and a vote on passage, following which we will reconvene the hearing. You all can take a respite break. 

[Recess.] 

Mr. OBERSTAR. The Committee will resume its sitting with again, 

apologies to witnesses and to all in attendance for the interruptions. Little comfort to you, those are the last votes of the day and 

of the week. Doesn’t change your lives any. It may change ours. 

Mr. Schulze, BNSF has a points system, which we described earlier, and you cited the maximum is 89 points. But within that system, as I understand it, it assigns 40 points to an employee for reportable injury, 5 points for a non-reportable injury. How did you 

come to this rating system? What is the value of 40 and what is 

the value of 5? 

Mr. SCHULZE. I am not entirely sure how the exact numbers, how 

we did come up with those. But I do know through the safety assurance compliance program that is joint FRA, labor and BNSF, in 

the early 2000 time frame, it was discussed. We used to have reportable and non-reportable injuries at the same level, point level. 

At that time, labor had a concern that that was going to put under 

the table those non-reportable, those first-aid type injuries. So we 

discussed through that process in the early 2000 time frame, making the non-reportable point system lower. 

88

That is something that is currently under review. We keep looking at best practices and trying to improve it the best we can. 

Mr. OBERSTAR. I understand from one of your colleagues that 

had a point system and reviewed it and said it had unintended consequences that they are terminating it. Are you moving in that direction? Are you moving in the direction of terminating the points 

system? 

Mr. SCHULZE. It is not something that is under discussion right 

now. We are looking at refining it, trying to make it better. We believe it is a valuable tool. We are open for discussion to make sure 

it is the best tool. 

I have not heard any employee discontent about this. We regularly meet with labor, either safety coordinators, which are union 

appointed leaders, on each of our divisions, that BNSF pays for 

them full-time to focus on safety, either through our local chairman, general chairman that we meet with regularly. ERP has not 

been a system that they have taken much umbrage to. 

Mr. OBERSTAR. Well, you are certainly hearing from different employees than we have been hearing from since the outset of the inquiry into this matter. Clearly, they have told us that they don’t 

report, they even fear discussing the points system for fear of retribution. I don’t know of another industry that has, maybe some 

that do, but I have been engaged in industrial safety issues for a 

great many years, in mining safety issues, mining industry, a 

wretched record until there were a few strikes that shut the company down and shut down production lines, because of hazardous 

practices. And the industry changed. 

But establish a point system that moves an employee from green 

status to a red status and then according to reports that we have, 

if an employee gets hurt on the job, goes to the doctor, gets prescription strength Tylenol, the action goes unreported but the employee gets 40 points. It is a bizarre and byzantine system, don’t 

you think? 

Mr. SCHULZE. The accident goes unreported? I am sorry? 

Mr. OBERSTAR. Yes. 

Mr. SCHULZE. And still gets—the injury goes non-reportable? 

Mr. OBERSTAR. That is what they have told us. 

Mr. SCHULZE. And it still gets points? 

Mr. OBERSTAR. And it still gets point. 

Mr. SCHULZE. No, that is—that wouldn’t take place. A non-reportable injury under the current system is five points. And not all 

reportable injuries get 40 points. Say for instance, you were in a 

van accident——

Mr. OBERSTAR. Can you think of a better way to manage relations with your employees than to give them a point system based 

on an injury? 

Mr. SCHULZE. It is just one process of many that we utilize. As 

we have discussed, safety is very important to us. We have a lot 

of processes and programs out there. This is one of them that we 

believe is a solid part of any risk management program. 

Mr. OBERSTAR. But if I were an employee who was subject to a 

rating system, for example, when I worked in a ready-mix concrete 

block factory, and because things were—accidents happen when a 

lot of things go wrong. Not always, but that is frequently. There 

89

was a lot of things going wrong, and I got my hand caught in the 

mixer blade, a mixer, big two-ton mixer. I ripped a fingernail off 

my finger and a lot of other things. Old Zip Rawley put me in his 

truck and rushed me into the hospital, not to the company doctor, 

because they didn’t have a company doctor. 

But that would have been a reportable injury. Now, under your 

points system, if I had had this happen and I was worried about 

my job, I would have said, oh, hell, I will just shove it back and 

wrap some bandage around it and not report it. 

Mr. SCHULZE. But that is where, again, we make that clear distinction, this is not part of discipline, it is not part of the employee 

transcript. This is simply an opportunity to spend time with the 

employee, find out if there are any issues, take time to coach, counsel, train. It is a discussion. It is not harassment and intimidation. 

Mr. OBERSTAR. Well, that is the way it is seen, and that is what 

we heard from the previous employee witness group. And it seems 

that CP has moved away from, Ms. Ackermans’ testimony reported, 

from a command and control culture of blame to a system based 

approached, in which there is an inclusiveness and an involvement 

that management and labor in emphasizing interior dialogue and 

positive behavior and performance. Have you looked at their system? 

Mr. SCHULZE. We regularly benchmark against all the Class I 

railroads. We believe our partnership with labor is very strong. 

Again, I mentioned the meetings we had last week with the safety 

coordinators, also some general chairmen. Next week again in Kansas City, I am meeting with the general chairman specifically to 

talk about safety. 

Mr. OBERSTAR. Will you talk to them about the point system? 

Mr. SCHULZE. I sure will, if that is something you would like. 

Mr. OBERSTAR. I think you should. I think it is giving railroad 

safety a bad name. 

Mr. SCHULZE. We will discuss it again. 

Mr. OBERSTAR. Do all of the railroads represented at this table 

have a hot line, confidential hot line? You are all nodding. For the 

record, they are all nodding. The record is not visual, it is verbal, 

so we will say yes. 

But one of the previous panel said, oh, when we call in, everybody knows our voice, they know who we are, it is not confidential 

at all. How can you assure confidentiality? 

Mr. WEHRMEISTER. I can only speak for our workplace at Norfolk 

Southern, Mr. Chairman. We have a number of multiple avenues 

or channels available to the employee. In our ICP, we outline that 

there are avenues, both through the FRA and through the labor organization, if an employee chooses to go that route. But additionally, to speak with their supervisor or to the system director of 

safety. And we outline the telephone number. 

We think that we have evolved a culture such that anonymity is 

not necessary. But in the event that there are some employees, and 

there well may be some in our workplace, who do believe that that 

is necessary, we have a completely confidential ethics hot line, a 1-

800 number that employees can call in that is divorced from the 

rest of the operating department and is controlled by our internal 

audit department. All of that is published to our employees for 

90

their knowledge. Coincidentally, in this regard, in our workplace, 

we have an initiative that happens to be going on right now, an 

eight-hour safety training workshop that includes many modules 

and a great deal of training. 

But perhaps of interest to this Committee, one of the modules 

that is given, that is presented to all of our train and engine service people and dispatchers out in the field and the facilitators, perhaps, believe it or not, are agreement personnel, unionized personnel and a supervisor, teams of two who teach a subject that is 

called in this booklet and has its own slide presentation that goes 

with it, Intimidation and Harassment. This module, the entire 

booklet, in fact, the eight-hour training program, was built by three 

local chairmen and three assistant superintendents, field supervisors working in conjunction with the safety department. There 

were a few items, like security, that we just have to cover. 

But people themselves came up with the topics in that training 

program, our folks and their peers as well as their peers’ supervisors, let folks know of the availability of these and what their reporting requirements are and what the supervisor is expected to do 

for respectful treatment in the event that an employee is in fact injured. 

Mr. OBERSTAR. That is a training manual for both supervisory 

personnel and line? 

Mr. WEHRMEISTER. This is for all of our agreement personnel for 

some 15,000 or 18,000. 

Mr. OBERSTAR. Will you leave that for the Committee? 

Mr. WEHRMEISTER. I would be delighted to, yes, sir. 

Mr. OBERSTAR. I would like to go through it. 

Chairwoman Brown. 

Ms. BROWN OF FLORIDA. Thank you, Mr. Chairman. 

Mr. David Brown, would you believe that that is my brother’s 

exact name, too, and he works at CSX? David Brown. I bet your 

checks are never mixed up. 

[Laughter.] 

Ms. BROWN OF FLORIDA. I do have a series of questions. I know 

you all heard the other panel, and those were some horror stories. 

Can you respond to it? Also, expand more on what we can do to 

move the industry forward. I am very excited about the railroads 

and what could happen in our Country as far as the next 25 years. 

But we cannot have this culture that has existed in the past that 

the employees feel intimidated, this man was bleeding and he was 

afraid to say, take me to the doctor. It is hard for me to understand 

that. 

But I guess you have your life and your family and you think 

that you are going to lose your job, it may be a factor. So can you 

help me out here? We can start with Mr. Hamberger. 

Mr. HAMBERGER. Than you, Madam Chairwoman. I believe that 

H.R. 1 that was just signed into law in August provided for an additional parallel whistleblower protection through the Department 

of Labor. While I happen to believe that the current system provides plenty of access, this is yet another way for the employee to 

be protected if they do blow the whistle, so that there is not retribution, and if there is, that there would be punishment meted out 

91

to the railroad. So I think that that provides another layer of safety, if you will. 

I guess the other option, the other alternative I mentioned, just 

going back to the FELA issue, is just to ask the Committee to take 

a look at that and think about whether or not getting rid of that 

adversarial underlying negligence-based workers comp system 

might also lead to more collaboration and cooperation than the adversarial approach that that necessarily breeds. 

Ms. BROWN OF FLORIDA. So you are saying that the way the system is presently set up, it is negative for an employee to report an 

accident? 

Mr. HAMBERGER. Well, I think, and I don’t want to be incendiary 

here, but I do have a number of pieces of advice from lawyers to 

our employees. You have to remember that FELA is a fault-based 

statute. You must put something in your accident report to show 

that your accident was caused by something the railroad did 

wrong. Giving a statement can hurt your claim. You are not legally 

entitled to be compensated for your injury unless it was caused by 

the fault or negligence of the company. And this is the kind of advice and kind of system that fosters legal advice. 

But it is the system that leads to advice that you should not 

make any statements, either orally or in writing, as to how the accident occurred until you see your lawyer or union representative. 

So it sets up just an underlying conflict, instead of sitting down 

and getting to the root cause of, if there are three slip and falls, 

let’s sit down and find out what is at the bottom of it. On our side, 

we are saying they are acting badly, and on their side, they are 

saying there is something wrong. It just doesn’t lead to collaboration, to that culture change that Ms. Ackermans was talking about. 

The other thing I think that is going on is that each of the companies here is trying to move to a proper balance. As I mentioned, 

I think you have to have some command and control. At the same 

time, there has to be collaboration. I think they are all trying to 

find that proper balance for their particular company. So I think 

we are moving very much into a culture of safety. 

Mr. OBERSTAR. Would the gentlewoman yield? 

Ms. BROWN OF FLORIDA. Yes, sir. 

Mr. OBERSTAR. You touched on a very important line of inquiry, 

a very important issue. If I understand your response, and the responses of other members of the panel, you are saying that the 

FELA creates this adversarial condition between employer and employee, that workers comp, which is essentially a no-fault system, 

and we have already discussed the FELA position, you seem to be 

advocating for a workers comp approach. 

But workers comp is managed State by State. Would you be willing to accept the development of a national workers comp system 

that applies only to railroads? 

Mr. HAMBERGER. Yes. 

Mr. OBERSTAR. I think we might be able to write one. 

Mr. HAMBERGER. We would have some thoughts on that to share 

with you, sir. 

Mr. OBERSTAR. Thank you. 

Ms. BROWN OF FLORIDA. Thank you. 

Mr. Brown? 

92

Mr. DAVID BROWN. Thank you, Congresswoman Brown. Yes, I 

would say a couple of things. As far as progress we have made, 

what can we do, I think as I mentioned in my statement, we have 

made real progress. We feel very strongly about the positive 

progress that has been made, and we would reiterate the importance of the Committee looking into how that progress is occurring. 

Look at today’s momentum, where we have come in the last three 

years and how that has occurred, and then working together how 

we are going to move forward. 

Just like Mr. Wehrmeister has mentioned, that sort of collaborative training that has been developed, certainly at CSX we have 

done the same types of programs, so that we sit down with employees and learn together, educate ourselves so that our employees are 

better educated. We have developed our leadership abilities to be 

more positive, more effective and engaging. 

Another area that I think is of particular concern to you is that 

we continue to build our performance financially, so that we can reinvest and make our railroads safer, through new technology, 

through improved infrastructure, through updated equipment and 

the things you have seen us doing here in the last several years. 

It is paying real dividends in terms of performance improvements, 

and it is our plan to continue that. Thank you. 

Ms. BROWN OF FLORIDA. Would you just follow up, because as 

you heard the question that I asked earlier about the hedge fund, 

and in particular, they are trying to, what they are trying to do to 

the industry. How would that affect the railroad’s ability, CSX in 

particular, for capital investment and safety improvements? 

Mr. DAVID BROWN. I am not sure I can comment specifically 

about the hedge fund’s intentions, but I will just say that our railroad is getting to the point now where we are just able to make 

the kind of capital investments that we really need to make to 

progress into the future, not only to maintain and improve our current infrastructure, but importantly, to build capacity so that we 

can grow in the future. Anything that undermines that level of financial performance, the availability of those capital funds, will 

have a negative impact on our ability to move forward with safety, 

as well as serving the Country through safe rail transportation in 

the future. 

Ms. BROWN OF FLORIDA. Mr. Hamberger, would you like to respond to that? Perhaps you have a broader picture. 

Mr. HAMBERGER. I do not have a comment on any specific hedge 

fund or private equity fund. I think on the one hand, the fact that 

private equity funds or private investors see the railroads as a 

place to invest is a good thing. I think from a policy standpoint, 

what this Committee needs to be cognizant of and aware of and 

take a look at is what is the goal, what is the aim of those investors? Is it to invest, as Mr. Brown just said, to expand capacity, to 

improve safety? Then in fact, that is a good thing. If it is not, conversely, I would think from a policy standpoint that it would be 

something that would concern the Committee. 

Ms. BROWN OF FLORIDA. I think some of you others heard the response, some of those horror stories, and I think some of them were 

talking about some of your railroads. Can you respond to that? 

Mr. WEHRMEISTER. As far as intimidation and harassment? 

93

Ms. BROWN OF FLORIDA. Yes, sir. And not reporting accidents. 

Mr. WEHRMEISTER. I think that overall, in our workplace, we 

have come to learn, with the collaboration that Dave Brown just 

mentioned, that discipline is education that makes punishment unnecessary. Now, does that mean that there will never be a disciplinary hearing again? Surely, it does not. But working collaboratively with, for example, the Brotherhood of Locomotive Engineers and Trainmen, and the United Transportation Union, and 

subsequently other labor organizations who have joined, we have 

a new discipline policy. It is a tribute to what can be done by working together, called the System Teamwork and Responsibility 

Training. 

What it pledges is something that perhaps did not happen in previous years to 2000 when this began. Again, other labor entities 

have come on since then. For example, it points out in policy fashion, employees will not be disciplined for failing to report an injury 

immediately if, as soon as the injury manifests itself, the injury is 

reported. We may not have done that in years gone by. Employees 

will not be subject to formal disciplinary hearing for sustaining an 

injury. It goes on to say, from time to time, there is a case that 

needs to be looked at, and the vice president in that group needs 

to approve that, so that we try to get to the cause of it. 

There is a steering committee that includes labor, and some of 

those folks are in the room today, from the START program or 

steering committee, and management as well, to guide it. In order 

to foster it, in order to proliferate it, virtually every quarter our executive vice president of operations takes it upon himself and does 

not farm it out to a designee, and goes along with the vice president of labor relations to bring together each division’s local chairpersons, general chairpersons, representing the labor organizations, 

as well as local supervision, so that everybody is in complete understanding with where we are at and where we want to go, and they 

talk out issues. 

I hope that is responsive to your question. 

Ms. BROWN OF FLORIDA. Yes, sir. Does anyone else want to respond? 

Ms. ACKERMANS. I would like to talk about your question about 

how would the industry move forward. I have had the advantage 

of working within two completely different safety structures. I see 

the weaknesses and strengths of both systems. One of the 

strengths of the Canadian system, when it comes to union-management collaboration is a requirement for the union participation in 

safety and health activities. They can’t withdraw from safety and 

health activities. They are expected to stay at the table. 

What we have observed in the U.S. over the years is you will 

have a dispute over something else that happened in the workplace, and the reaction of labor, on occasion, has been to withdraw 

from the joint safety and health activities. That just brings that activity level to a halt. So there is a simple lesson that could improve 

safety here, is if there was mandatory participation. 

Ms. BROWN OF FLORIDA. Do you have that in writing? Do we 

have that information? 

94

Ms. ACKERMANS. I am not sure if it was in my testimony or not. 

I can certainly give you citations for the Canada Labour Code 

where it exists. 

Ms. BROWN OF FLORIDA. That would be very helpful for us to 

take a look at. 

[Information follows:]

95


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Thank you all very much. Yes, sir, you wanted to respond? 

Mr. SCHULZE. I would just like to echo the comments that have 

come out. It has to be a collaborative relationship. We have discussed that before, the power is in, obviously, working together. We 

have certain agreements that are in place, whether it is alternative 

handling, which is non-disciplinary, non-punitive. We are going to 

build upon those. In the collaborative partnership, it has to be personal. Everybody has to take this personally, that the employees 

are empowered and supervisors are engaged. It has to be done at 

the local level. That is where the power of safety is, at the local 

site safety teams. They are the ones who see the risk in a given 

area. 

Lastly, it has to be leadership driven. We have to heave leaders 

that, again, we stamp out any harassment or intimidation that 

takes place on the system. When it is identified, we need to address 

it, we need to confront it and address it strongly. 

Ms. BROWN OF FLORIDA. Thank you, Mr. Chairman. 

Mr. OBERSTAR. Thank you very much. A very productive line of 

inquiry. 

How can you assure with such widespread operations that you 

are making every effort to identify front-line supervisors who are 

pressuring employees not to report? Some of you in your individual 

statements describe situations where disciplinary action was taken. 

Is there a consistency in how this issue is managed? How can you 

assure that actually it is being carried out? 

Mr. GRIMAILA. We believe that a consistent message throughout 

the organization, starting at the top, and making very clear what 

the expectations are, is the most important start. And that is what 

we have. The other thing is to be persistent. We have to continue 

to drive the message through, provide the training and examples, 

as Mr. Wehrmeister put out, and just stay after it with that. And 

demonstrate with our actions that what we are saying is what we 

are doing. That is the path we have taken right now. 

Mr. OBERSTAR. Does that suffice for the other three? 

Mr. WEHRMEISTER. Our eyes met. Mr. Chairman, in our workplace, part of our ICP is the declaration that we will audit our injuries both from a field perspective, if I may, those supervisors who 

control or have charge of the folks in the field. But we have another layer from our safety and environmental department of folks 

who go out twice a year and they audit the personal injury forms 

for reportables, accountables and first aid, and check it against our 

casualty claims files; in other words, if there is a payment to an 

employee, to ensure that we are not speaking from two different 

mouths. In other words, no injury report and there would be a payment. If we have a discrepancy, we certainly clear that up. 

Additionally, our general managers and superintendents are very 

active in ensuring that all of the right things are done with our reporting. FRA is very active and audits us at least once annually on 

a system basis. They don’t just go through the reportables, they go 

through the accountables, the first aid, we put everything down in 

our workshop, and I know the other railroads do, too. They look at 

it all, even if it is not a reportable, per se. 

Mr. SCHULZE. I would say on the BNSF it is very similar to what 

each of these gentlemen said. We do cross-correlate data bases to 

97

ensure that we have all the information. We get the information 

from the field, what happened injury-wise. We get information from 

the claims department, much like what Mr. Wehrmeister is saying. 

And we also have medical department information. We correlate 

those data bases to make sure that they are all synched. If any one 

of them is out of order, we make sure that it is a reportable injury 

and we address it with a supervisor. 

Mr. DAVID BROWN. And similarly on CSX, pretty much an approach around our leadership style, our approach to leadership, so 

that it is a top-down message about the importance of being a positive, engaging leader. The fact that when you don’t deal with facts, 

you can’t create sustainable improvement. That is really what we 

are trying to accomplish. 

Self-auditing, we do look at our records, we audit ourselves. We 

also cooperate fully with FRA in any auditing of records. Our hot 

line produces, occasionally does produce a complaint. We investigate those fully, take the appropriate action. We have trained all 

of our leaders, all of our managers. That is an ongoing process. 

Obviously, there is some awareness around allegations of intimidation and harassment through the history that has led up to this 

hearing today. So we paid particular attention to make sure all of 

our leaders are aware of that and very much informed about all of 

the various issues that could be considered out of bounds. We made 

those boundaries firm and we expect our leaders to stay within 

them. Thank you. 

Mr. OBERSTAR. Were any of you surprised then by the testimony 

that was given earlier by the injured railroad employees? Did this 

come as a surprise to you? They described very thorough practices 

on your part? 

Ms. BROWN OF FLORIDA. Mr. Chairman, will you yield to me for 

one moment? 

Mr. OBERSTAR. Yes, I yield. 

Ms. BROWN OF FLORIDA. That young man at the end, Mr. 

Ehlenfeldt, who is fired and unemployed, what company was he 

working with? 

Mr. SCHULZE. He was with BNSF. 

Ms. BROWN OF FLORIDA. Can you address that? 

Mr. SCHULZE. I am not sure how much I can address. That is, 

it is going to be under litigation in the next couple of weeks. So 

a lot of the facts will come out through the judicial system. I will 

say to some of it, we do have disciplinary policies that are generally 

progressive discipline. So the discipline that he was assessed for a 

certain event might trigger something differently for another person similar to, say, your driving record. I grew up in the State of 

Nebraska, you had 12 points, if you got to 12, your license was suspended. If you are at 11, got a speeding ticket and got your 12th 

point, you would lose your license. If you were at 1 or 2 and got 

a speeding ticket you wouldn’t lose your license. 

Ms. BROWN OF FLORIDA. But you indicated that the point system 

was not in place. 

Mr. SCHULZE. The employee review process? 

Ms. BROWN OF FLORIDA. No, the Chairman asked you about the 

point system. 

Mr. SCHULZE. Yes. That is separate from the discipline process. 

98

Mr. OBERSTAR. Points are separate from discipline, he says. 

Mr. SCHULZE. Yes, the employee review process did not correlate 

to the discipline. 

Mr. OBERSTAR. Ms. Ackermans, can you describe for us the legal 

structure in Canada that governs on the job accident injury and 

treatment thereof? 

Ms. ACKERMANS. In Canada, the provinces each have workers 

comp no-fault systems. So they have adjudication rights over, did 

something really happen in the workplace or not. It does not go to 

the court systems as it does in the workers comp systems that I 

heard today, about the State systems. So the workers comp boards 

themselves adjudicate. 

Mr. OBERSTAR. So the railroad is subject to each separate provincial workers comp law? 

Ms. ACKERMANS. Right. And it is based on the province in which 

you reside. So your injury can happen in one province, but it is 

where you reside, that is where the resolution occurs. 

Mr. OBERSTAR. So if you live in Quebec and you are injured in 

Alberta, you have to go back? 

Ms. ACKERMANS. You wouldn’t get that far in the railway system. 

[Laughter.] 

Mr. OBERSTAR. Yo have to go back to Quebec to be adjudicated? 

Ms. ACKERMANS. It is where you live. And of course, in the railway system, people don’t travel more than a couple hundred miles 

from their home on the railway system. Most of the injuries occur 

in the province where you reside. 

Mr. OBERSTAR. Those are huge, sprawling provinces. The province of Ontario covers seven States. 

Ms. ACKERMANS. Just about. So given that, given also that the 

workers comp administration actually is different in every province, in some provinces the assessment is based on a percentage of 

payroll. In other provinces, it is based on your particular injury 

rate. In other provinces, it will be based on a full-blown assessment 

of the future costs and will be assessed, everything up front. Some 

of it is a pay as you go. 

So we have a myriad of systems that we work within. The reporting requirements may be different. They are similar in terms of 

what needs to be reported, but the timing is different. The lowest 

common denominator is 48 hours that we have to report a serious 

injury to a workers comp board in one of the provinces. So we made 

that our internal reporting target, is to try and get everything reported within 48 hours in order to meet that one provincial jurisdiction. 

Mr. OBERSTAR. Thank you. 

Well, I want to thank the panel for their testimony, for contributing a great deal of time and effort to the presentations that you 

have made. It has helped us to sharpen the focus. Mr. Joyce, we 

will expect written comments from you. 

Mr. Hamberger, it will be interesting to get your thoughts on a 

national workers comp type of system. And we will invite the 

brotherhoods to submit their thoughts on it as well. 

Certainly there are clear problems, Ms. Brown elucidated, as 

each of you and the previous panel said, resulting from an adversarial structure. On the other hand, there surely has to be a firm 

99

standard by which to measure. A point system, to me, is fraught 

with the type of internal problems that were reported by the previous panel. If the railroads and the brotherhoods could work that 

out amongst themselves, that would be the best outcome. But if 

not, then, as we have done in aviation and elsewhere, then it is appropriate for Congress to legislate. 

Mr. HAMBERGER. Mr. Chairman, if I might be so bold. 

Mr. OBERSTAR. The gentleman is recognized. 

Mr. HAMBERGER. Thank you. I think that we would be really 

pleased to sit down with the brotherhoods, I think, if you or your 

staff were sort of the——

Mr. OBERSTAR. Mediator? 

Mr. HAMBERGER.—raconteur, that it would be very helpful to 

make sure that we sat down and moved forward. That would be a 

great service. 

Mr. OBERSTAR. We will explore that. 

Mr. HAMBERGER. Thank you. 

Mr. OBERSTAR. The Committee stands adjourned, with great appreciation to the witnesses. 

[Whereupon, at 5:47 p.m., the Committee was adjourned.]

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Æ


38568.711