In 2013, Jeff Kurtz, then a union officer for the Brotherhood of Locomotive Engineers and Trainmen as well as an engineer for BNSF, helped a coworker file a whistleblower complaint against the railroad.
The train’s cruise control system, known as Trip Optimizer, was reportedly malfunctioning, which can be a serious safety hazard. So the worker disabled it and took steps to generate a record of the malfunction, as Kurtz described it in a 2016 testimony to the Department of Labor in Washington D.C. and in a recent interview with Motherboard. That way, if it failed again, there would be documentation that the system is the problem, not the worker.
The following month, the worker was available for 92 percent of his scheduled hours, but the railroad assigned him to a train for only 43 hours that month. He was then punished under a company rule for low performance, which could have resulted in him being fired. In a written response to Occupational Health and Safety Administration (OSHA), which was then sent to Kurtz and viewed by Motherboard, the company accused the worker of gaming the scheduling system to work as little as possible. But they simply describe a worker using the scheduling system in the same manner I have heard dozens of other workers say they do in my two years reporting on freight rail labor issues.
According to Kurtz, the worker had an unblemished record over a multi-decade career. To him, it seemed an obvious case of retaliation for reporting a safety issue that could be expensive to fix. In a recent interview, Kurtz, who is now retired, described it as a Catch-22: Don’t call the employee in for work then punish him for not working enough. It was “awfully funny that this was done so soon after he turned the Optimizer in,” Kurtz testified in 2016.
The two of them decided to file a whistleblower complaint with the OSHA. Motherboard has viewed documentation verifying the details of the whistleblower complaint but is not publishing them to protect the identity of the whistleblower.
This case was one of 2,054 whistleblower complaints filed with OSHA by freight rail workers against the seven biggest railroads in the country, known as Class I railroads, since 2013, according to documents obtained by Motherboard via a public records request. Out of the more than 2,000 complaints, 1,838 of them, or 89 percent, allege violations under the Federal Railroad Safety Act (FRSA), a 2007 law that was designed to protect railroad workers when they spoke out regarding safety violations.
If you see a freight train, the odds are better than even it is a Class I train. The seven Class I railroads—BNSF, CSX, Kansas City Southern, Norfolk Southern, Union Pacific, Canadian Pacific and Canadian National—account for 70 percent of the nation’s track-miles, 73 percent of the labor force, and 79 percent of total freight revenues, according to Trains magazine. The Surface Transportation Board recently approved a merger between Kansas City Southern and Canadian Pacific. In the U.S., BNSF, CSX, NS, and UP are the biggest, dominating their respective geographic regions, the result of decades of mergers and consolidations in the railroad industry.
Motherboard filed a public records request with OSHA for a list of all whistleblower complaints filed against the Class I railroads. This list includes the statute under which the complaint was filed, the company, the date filed, and whether the complaint was investigated. It did not include the name of the complainants or case numbers, which were redacted. Copies of whistleblower investigations are typically difficult to obtain via public records requests because of laws intended to protect the identity of whistleblowers and corporate lobbying to require redacting potentially damaging information.
Publicly, the railroads and the federal government place lots of weight on the idea that workers will say something if they see something dangerous, and that this will protect both workers and the public from the dangers inherent in transporting dangerous chemicals through towns and cities around the country. In its response to Kurtz’s whistleblower complaint, BNSF said it “actively encourages employees to report concerns” about safety and “prohibits retaliation against whistleblowers.” An expansion of whistleblower protections has been a major component of the Department of Transportation’s response to growing concerns about safety in the freight rail industry following Norfolk Southern's derailment in East Palestine, Ohio. In early March, The Class I railroads rushed to publicize their eager participation in a new reporting system that will also provide whistleblower protections.
But, ask a freight rail worker, and they’re likely to have a very different reaction. When I called Kurtz, who worked in and around railroads his entire life, and asked about the whistleblower protections, he laughed.
Shortly after filing the case in 2013, OSHA informed Kurtz it couldn’t do anything in the matter. BNSF lawyers successfully argued that reporting a safety violation one month had nothing to do with the low work hours and subsequent punishment the very next month, according to its response in the case viewed by Motherboard. BNSF spokesperson Lena Kent said in a statement to Motherboard, “While I can't speak to the specific case you cited from 10 years ago, what I can say is that nothing is more important than safety at BNSF” and “BNSF does not retaliate against employees for reporting injuries or safety concerns.”
Kurtz remembers asking OSHA whether it would be an issue if the railroad had a policy of firing 10 people every month and eight of them just happened to be whistleblowers. The answer, he was told, was no.
Do you work in the freight rail industry? Have you tried to report safety issues? We’d love to hear from you. Contact Aaron Gordon at firstname.lastname@example.org.
Kurtz had little idea how prescient the question was. Over the following decade, the industry’s workforce shrank by more than 30 percent, from 171,000 employees across the Class I companies in 2015 to 112,000 in 2022, according to data from the Surface Transportation Board, as railroads pursued a profit-focused management strategy called precision scheduled railroading that slashed labor and maintenance costs to achieve short-term profit margins that please shareholders at the expense of safety.
While the workforce shrank, the rule books grew, encompassing hundreds of pages across different regulatory and internal frameworks. The rules became so numerous, complicated, and sometimes contradictory that they provided ample pretext to punish any employee at any time.
The combination of a shrinking workforce and growing rulebook had the effect of neutralizing whistleblower protections. Railroads could, and would, simply claim the worker was being punished for any number of other reasons while sending a clear chilling message to the worker and their colleagues about what happens to people who raise safety concerns. In its legal filing, BNSF inadvertently explained this dynamic. In a euphemism for correlation not equaling causation, they called it “severing the temporal connection” between the whistleblowing and the punishment.
“Whistleblower cases are hard to win because [companies] throw up a lot of defenses and confuse everyone,” said Robert Swick, an investigation compliance specialist at OSHA who works on whistleblower cases. To explain the problem, he offered an allegory: “If a worker trips in the snow, the companies say, well, workers must always look down. But if something falls and hits them in the head, they say well, he should have been looking up.”
With the renewed focus on the freight rail industry following the East Palestine derailment in February, media reports abound of workers who have tried to raise the alarm on specific safety issues and been punished for it. But these articles gloss over the systemic nature in which whistleblower protections have been gutted and how railroads are able to circumvent—often legally—the supposedly ample protections provided to whistleblowers by federal law. As a 2015 investigation by the nonprofit news outlet Investigate West found, railroads have been mastering the art of undermining whistleblowers for years.
The documents Motherboard obtained from OSHA on whistleblower complaints did not include the outcomes of each individual case, which would require filing a public records request asking for the specifics of each of the 2,054 cases. This process would take many years if OSHA agreed to process the request at all. However, OSHA does publish data for the last six years regarding outcomes broken down by statute, such as FRSA. Since 78 percent of all FRSA complaints received by OSHA during that time were against Class I railroads, the public data on outcomes has obvious implications for the seven companies that account for more than three out of every four whistleblower complaints and are responsible for the vast majority of freight rail activity in the U.S.
In the six years from 2017 through 2022, OSHA has decided on 1,483 whistleblower cases that fell under FRSA. Of those, 1,258, or 85 percent, were either dismissed, kicked out, or withdrawn. Only 27, or 1.8 percent of all complaints were found to have merit. Another 13 percent were settled. Overall, just 15 percent of whistleblower cases had what OSHA considers “positive” outcomes for complainants.
But even those “positive” outcomes don’t look as good in reality as they do on paper. Those rulings can take so long that it’s hardly a clear victory for the whistleblowers.
For example, a former BNSF worker named Mike Elliott first reported broken train signals and was terminated in 2011. In 2015, a jury awarded him $1.25 million in damages under whistleblower protection laws, in part because a manager goaded him into a fight in the parking lot so he could fire him. BNSF appealed, which Elliott won, but not until 2018, more than seven years after he lost his job.
In 2013, a Department of Labor administrative law judge awarded punitive damages to a former Union Pacific worker, another Class I railroad, for firing him because he reported that his foot was run over by a car in the company parking lot during his shift. Many workers have told me during the last two years that they are discouraged from reporting on-site injuries to make workplaces appear safer than they are and limit financial responsibility for those injuries. But there are also clear rules requiring them to report injuries in a timely manner, meaning they can be punished for both reporting and not reporting injuries.
The 2013 Union Pacific case was so egregious the judge awarded punitive damages for the first time in her 19 years, according to her ruling, because “Union Pacific has been so openly blatant in ignoring provisions of the FRSA.” The ruling came four years after the worker was fired. He was awarded $100,000 in punitive damages.
In 2016, Kurtz testified before an OSHA committee including Anthony Rosa, the deputy director of the Directorate of Whistleblower Protection Programs, about the issues with whistleblower protection programs on the railroads. He warned that workers were afraid to come forward under the adage that justice delayed is justice denied.
“The process of trying to clear someone and get them back to work or get them justice will take years,” Kurtz said, “and chances are very good in the process that he/she will be forced to take a job that pays much less than they made, just to get by, they will lose most of their material possessions such as their cars and their homes, and in many cases, the tension in the family becomes so great that a separation or divorce occurs.”
“Knowing this,” Kurtz summarized back in 2016, “why would anyone gamble everything on a flawed process that appears to them to be put in place for mostly appearances sake?”
In the year Kurtz provided that testimony, 207 workers filed whistleblower complaints against the Class I railroads, according to the data obtained by Motherboard through a public records request. The following year, there were 289 such complaints, the most in any single year since FRSA was enacted. In the following years, the complaints dropped, to 184 in 2019 and just 152 in 2021. In 2022, only 122 whistleblower complaints were filed against the Class I’s, a 58 percent decline from 2017, outpacing the decline in the industry’s workforce.
Kurtz argues this is not a sign of better behaved railroads, but the exact opposite: an industry that punishes anyone who speaks out, a flawed process for protecting whistleblowers, and a workforce scared into silence.
The data backs him up. Accidents per million miles traveled have been increasing across the industry since 2013, with a sharp upturn since the introduction of precision scheduled railroading began in earnest around 2017.
“The system is set up for you to fail,” said Kurtz regarding whistleblowers. “And it’s set up so it’s pretty well foolproof.”
Data received from OSHA can be viewed here.