BNSF Railway, the second-largest freight network in the U.S., is at the center of the boom in crude by rail. The railroad touts its commitment to safety. Current and former workers question the safety culture on the ground.credit: Michael Werner
BNSF Railway, the second-largest freight network in the U.S., is at the center of the boom in crude by rail. The railroad touts its commitment to safety. Current and former workers question the safety culture on the ground. | credit: Michael Werner | rollover image for more
BNSF Railway officials say their company is absolutely committed to preventing derailments, ensuring work crews follow all safety rules, and avoiding retaliation against whistleblowers.
But BNSF critics claim the railway has long prioritized speed and profits over safety, with a history of retaliating against workers who report accidents, injuries and safety concerns. Most current employees contacted for this report spoke only on condition of anonymity for fear of retaliation. These criticisms were echoed by railroad experts in their appraisals of the industry as a whole.
“There’s a lot of talk about safety as the top priority,” said railroad consultant George Gavalla, who has 37 years of industry experience, including seven as head of the FRA’s safety office.“But if safety were the top priority all the time, we wouldn’t be having all of these accidents and injuries that we do have.”
Examples of the culture Gavalla describes can be found in court documents, OSHA investigations, congressional reports and letters between regulators and railroads:
Cases are pending in at least threedifferentstates in which BNSF conductors allege they were fired for insisting mandatory brake tests not be skipped, contrary to orders from their managers.
OSHA reached an agreement with BNSF in 2013 to change some of the railroad’s policies after discovering a system it alleged violated federal law by assigning more disciplinary points to workers for reportable injuries than for non-reportable injuries.
Studies and congressional reports document widespread underreporting of accidents and injuries on railroads dating back decades, citing retaliation against workers and incentives for managers to improve safety statistics.
Industry grows safer, concerns persist
BNSF does not particularly stand out amongst railroads in this regard. Major derailments or spills on all railroads, including BNSF, are rare. Along with the rest of the industry, the BNSF network’s reported accidents and injuries have plummeted since the 1980s. BNSF representatives say the company invests billions in infrastructure each year to move trains more efficiently, and its officials preach safety at every turn.
BNSF has publicly stated its commitment to preventing derailments like the one that happened on its tracks in Casselton, North Dakota last year. Those efforts include purchases of stronger tank cars, increasing inspections and slowing train speeds in some areas. Even the harshest critics of BNSF’s approach to safety — many of whom are its own workers and the lawyers who represent them — readily acknowledge railroads are far safer than they used to be.
Walt Garrison, a Vancouver area mechanic who retired from BNSF nine years ago, said the railroad is more committed to safety than it ever was, and the reason is financial — derailments are costly.
“They’re more than conscious of what should be done, and most of the time those people that don’t do what should be done are no longer in the game after a while,” Garrison said. “It might take a while to weed out the problems but in my experience anyway they got rid of most of the problems.”
Given BNSF’s status as the only long-haul railroad moving that oil through the Northwest, safety advocates say the railroad should be held to an exactingly high standard.
Bruce Fine, a safety consultant who spent more than 20 years with the Federal Railroad Administration, said the easy fixes to rail safety have already been done. Finding the complex ones, he said, will require a culture change between railroads, laborers and regulators that hasn’t happened fast enough.
Fine and other industry experts said a culture that silences workers’ safety concerns and obscures clear accident patterns can hinder efforts to prevent train crashes.
“If workers think they’ll be blamed, they’re not going to be forthcoming and you won’t get to the root cause,” Fine said. “It should not be about just finding someone to blame. That’s over simplistic.”
Tank cars, many of them placarded as holding crude oil and other hazardous materials, sit in a BNSF yard in Northwest Portland. Credit: Tony Schick
OSHA preliminary findings in the case of David Brewer. Brewer alleges he lost his job because he insisted on brake tests and voiced concerns about fatigue. OSHA did not connect his firing with his whistleblower activity, and Brewer is appealing his case.
The situation between workers and management turned toxic quickly in Willmar, Minnesota, where condcutor David Peterson and others claim they were fired for reporting injuries and safety concerns. Their manager is overheard in a cab expressing a desire to target workers involved in the case. Peterson was recently awarded damages over $1 million.
“I was just doing my job like I was trained to do that day,” Rookaird said. “I didn’t know I was going to be in such a battle. And it’s a battle for my life, for my family, not just for my job.”
Former employees in Montana and Minnesotahave also alleged under a federal whistleblower statute that they were fired after raising concerns about air brake tests.
“Where the dispatcher is telling a crew to get the train out of there even when the air brake test hasn’t been performed, that to me is a clear example of putting profits ahead of safety,” said George Gavalla, who oversaw safety at the FRA until 2004 and now works as a consultant and expert witness.
Other engineers and conductors with BNSF in the Northwest recalled similar pressure to prioritize train movement. In interviews they cited hurried or forgone brake tests, the ignoring of requirements to put cars in a particular order, and instances of riding out of the yard for miles at a time clutching the ladder on the outside of a rail car because of the extra time it would take to walk thousands of feet back to the front of the train.
Zak Andersen, BNSF’s Vice President of Corporate Relations, said in most instances a train is ready to go for the crew, and has already been air tested by mechanical personnel or a qualified inspector at a prior arrival. If not, he said, it is the crew’s responsibility to make sure the proper inspection has been completed.
“It is in BNSF’s interest to ensure that employees comply with the rules for safe operations with no advantage for failure to adhere to the proper rules and procedures,” Andersen wrote in an email. The company declined a request for an interview but responded to written questions. “BNSF conducts frequent operational tests and audits to verify employees are working safely and in compliance with all company rules, policies, instructions and procedures on an ongoing basis.”
Despite surpassing its safety goals, the incentive compensation plan payout for BNSF employees was lower than usual in 2013, in part because the company failed to achieve its velocity goals.
Allegations of insufficient brake tests persist in the rail industry despite a similar case dating back to 2003.
Rail labor attorney Harry Zanville said material from that case, which involved both the United Transportation Union and the FRA, was used in congressional efforts to improve rail safety, including a 2008 law giving railroad workers recourse to sue if they’re terminated for reporting accidents, injuries or safety concerns.
“They do put pressure on employees to get trains moving,” said Herb Krohn, the legislative director for the United Transportation Union, representing 2,000 railroad workers in Washington. “I know a lot of employees who have been criticized because they took too long to do a safety related matter.”
“The history of railroads in America has been one where things generally don’t get corrected until people die,” Krohn said. “And that is frightening to me.”
NTSB Board Member Robert Sumwalt views damaged rail cars on scene of BNSF train accident in Casselton, N.D. Credit: NTSB/Twitter
Railroad consultant George Gavalla explains his view of BNSF’s discipline choices in Wallis’ case.
Wallis later won in federal court under the whistleblower statute and has since returned to work for the railroad. She said she loves the work despite the experience, which is a common sentiment amongst railroad workers.
“I’ve had employees who’ve called me on their way to the hospital saying that they got injured on the job. They need stitches and they’re afraid if they tell the hospital how the injury happened the railroad will find out and then bring them up on charges,” said Herb Krohn.
Since the passage of a whistleblower law in 2008, more than 1,400 cases have been filed against railroads in the U.S. OSHA now handles more cases cases under the railroad statute than it does for all but two of the 22 whistleblower statutes it enforces.
Whistleblower cases, regardless of industry, are often dismissed. Many railroad whistleblower cases are withdrawn or kicked out to federal court. BNSF claims 90 percent of OSHA investigations it receives are deemed to have “no probable cause.”
Still, OSHA and the FRA found the number of claims filed in the railroad industry, which has risen every year, concerning.
Lawrence Mann, an attorney for railroad unions who wrote much of the federal whistleblower law, is confident the law is enough to change the industry.
“The culture in the railroad industry is going to change because of the whistleblower law, as it relates to harassment and intimidation,” Mann said. “An employee should no longer fear an issue of rail safety being brought to the attention of the federal government, or the railroad, of notifying the railroads of safety problems.”
He and other attorneys say OSHA has been aggressive in enforcing the statute.
A year later, OSHA reached an agreement with BNSF after discovering a policy, in part because of Wallis’ case, it alleged openly violated the whistleblower law: the railroad was automatically assigning 40 disciplinary points for a reportable injury and only 5 for a non-reportable injury. OSHA approached the railroad with more than 30 examples of complaints involving such practices, which ultimately led to a settlement of the cases and changes to BNSF’s policies.
BNSF spokesman Zak Andersen said in addition to that voluntary agreement, BNSF is also part of a government-sponsored Whistleblower Advisory Board, comprised of union representatives, Department of Labor administrators and railroad personnel.
“It is not only BNSF policy but also Federal Law that harassment or intimidation of any person that is calculated to discourage or prevent such person from receiving proper medical attention or from reporting an accident, incident, injury or illness will not be permitted or tolerated,” Andersen wrote.
Andersen cited an internal BNSF audit that shows a vast majority of employees who reported on-the-job injuries never received discipline connected with the events that led to their injuries.
“BNSF simply makes every effort to ensure that whistleblowers are not retaliated against. And the numbers bear that out,” he wrote.
Few can state with much certainty how the culture has changed since the whistleblower law went into effect. Cases are often appealed several times over, first going through the railroad review process, then the unions, then OSHA and ultimately federal court. That can leave fired employees in legal battles for years before they might return to work.
“It is of grave concern that this history in rail of retaliating against workers for reporting injuries and now having these cases, having these cases being decided in favor of injured workers, having some, you know, awards provided to the injured workers doesn’t seem to be stopping the practice overall,”Lessin said in the deposition.
After dismissal, a life unravels
Curtis Rookaird. Photo by Ashley Ahearn.
Kelly Rookaird. Photo by Ashley Ahearn.
Curtis and Kelly Rookaird built their lives around Curtis’ job with the railway. They bought a nice house in a suburb about an hour northeast of Seattle with a pool and plenty of space to practice soccer and baseball with their two sons, Roman and Reese, whom they adopted from Russia.
But when Curtis got a letter in the mail in March of 2010, informing him of his dismissal from the railroad, that life began to unravel.
“Prior to the BNSF incident our world was perfect,” Kelly Rookaird said, sitting at the kitchen table with her family one day. “We were very very happy. We finally got our kids and it was a miracle that we got them. We were very blessed.”
“And the lord blessed us all,” Roman, 9, piped up.
Curtis Rookaird has been in a legal battle with BNSF Railway for more than 4 years. During that time he’s fallen behind on mortgage payments — more than $100,000 behind. He took a job as a trucker in the Bakken oil fields of North Dakota to make ends meet, spending two months away from his family at a time.
“It’s a hard time with me and my family,” Roman says, between mouthfuls of after-school snack. His father was away during a boy scout camping trip, “And when we went camping at Fire Mountain it wasn’t fun without him because he can’t help us do our fish hooks and fishing stuff.”
Boy Scouts is the boys’ main social outlet, as the family can no longer afford any other sports or extracurricular activities.
Curtis Rookaird drives a fuel truck locally now, which has made it easier on the family, but the money isn’t as good as his job with BNSF Railway and they are facing the loss of their home within a matter of weeks.
In September of last year, OSHA ordered BNSF to put Rookaird back to work. As it has in other cases, BNSF has refused to do so and has appealed the case.
“And it’s a shame that they can just appeal and appeal and appeal a decision, basically an order, that says I’m supposed to be back to work,” Rookaird says, desperation in his voice. “I’m going to wither away and die here.”
Rookaird’s case will go before a federal court in May of next year.