The judgment in U.S. District Court of Seattle WA. is one of the latest rulings against BNSF Railroad over the firing of employees who identify safety concerns to their supervisors.
“BNSF puts profits over safety,” said William Jungbauer, attorney for plaintiff Curtis Rookaird.
BNSF spokesman, Gus Melonas said, “We are disappointed in the decision that was reached regarding Mr. Rookaird’s dismissal … BNSF takes whistle-blower allegations very seriously and we maintain that Mr. Rookaird’s dismissal was justified.”
On Feb. 23, 2010, then conductor Rookaird executed an air-brake check on over 40 rail cars, many of them placarded as hazardous tank cars. Some contained residues from propane and butane transported earlier in those cars, according to Jungbauer.
BNSF was hurrying to meet a delivery time when another BNSF employee questioned whether or not the air brake check was even necessary. Rookaird called a BNSF hotline per company policy and contacted the Federal Railroad Administration (FRA) to express his concerns about the safety of this train. BNSF maintains there was no retaliation for the Federal reporting of safety concerns, and had nothing to do with Rookaird’s firing.
In a trial brief, BNSF claims Rookaird was fired for insubordination based on an argument Rookaird had with a supervisor over the safety issues. He also failed to work efficiently and submitted a dishonest request to be paid for time he did not work, the attorneys said. (Note) this practice is commonly known as the “shotgun method” and used by employers hoping one of the charges will stick.
A company spokesman said “there was important information” that was not presented to the jury, and that BNSF is weighing its options following the verdict. The judgment against BNSF includes lost wages and damages, and is expected to go higher because it also awards attorney fees. However, BNSF’s personnel policies have been under Federal scrutiny over the last few years.
In 2013, the Federal Occupational Safety and Health Administration (OSHA) reached a settlement with BNSF to revise policies that allegedly violated whistle-blower provisions of the Occupational Safety and Health Act by discouraging workers from reporting on-the-job injuries. The settlement document requires BNSF to make settlement offers to 36 employees who had filed whistle-blower complaints and were disciplined.
An OSHA ruling in 2013 found “overwhelming evidence” that shows the brake test contributed to Rookaird’s firing, and ordered him to be reinstated. The railroad of course appealed that decision. Rookaird has moved on to other employment and works as a Hazmat truck driver to support his family. “It is even more dangerous than the railroad at half the pay,” said Kelly Rookaird, Curtis Rookairds wife. “We even lost our house after BNSF fired my husband for trying to do his job safely”.
There have been other BNSF cases that ended up in Federal Court, including the dismissal of Mike Elliott, who said he was targeted and terminated after reporting safety violations. Elliott was awarded $1.25 million by a Federal jury in Tacoma WA. Elliott said BNSF has also appealed that verdict and continues to employ stall tactics in the hope of preventing a settlement. “They are all about delay, delay, delay,” Elliott said.