A victory for rail workers as Supreme Court upholds FELA negligence standard

CLEVELAND, June 23 — Rail Labor scored a major victory today as the United States Supreme Court rejected an argument by CSX Transportation that would have made it much more difficult for railroad workers to be compensated when they are injured on the job as a result of a railroad’s negligence.

The case — CSX Transportation, Inc. v. McBride — originally was brought by BLET Division 742 member Robert McBride, who was injured while working for CSX. The claim was filed pursuant to the Federal Employers’ Liability Act (FELA) by Brotherhood of Locomotive Engineers and Trainmen Designated Legal Counsel John Kujawski. Under the FELA, a railroad worker who is killed or injured on the job may recover damages if the injury or death results in whole or in part from the railroad’s negligence.

Dissatisfied with the jury’s verdict in McBride’s favor, the railroad appealed to the Seventh Circuit Court of Appeals, complaining that the instructions given to the jury did not include one requiring that it apply a higher “proximate cause” standard, meaning that McBride needed to prove that the railroad’s negligence was the main or direct cause of the accident. The Seventh Circuit denied the railroad’s appeal.

Writing for a 5–4 majority, Justice Ruth Bader Ginsburg held that the jury instruction “proper in FELA cases … simply tracks the language Congress employed, informing juries that a defendant railroad caused or contributed to a plaintiff employee’s injury if the railroad’s negligence played any part in bringing about the injury.” The Court also noted that jury instruction “sought by CSX would mislead” a jury in the proper application of the law.

“The Supreme Court today vindicated an important right for BLET members and all railroad workers,” said BLET National President Dennis R. Pierce. “Our congratulations go out to Brother Bob McBride and his family, whose 7-year struggle for justice concluded successfully today.

“I also want to congratulate BLET Designated Legal Counsel John Kujawski and the team he assembled to fight for Brother McBride’s rights,” Pierce added, “and to thank retired BLET General Counsel Harold Ross for coordinating Rail Labor’s friend of the court brief, which demonstrated the continuing need for the protections afforded by the FELA.”

 What to do if your injured

• Obtain the very best Medical care that you can through your own doctors.

• Contact an attorney and union officials for additional information and free, confidential, reliable advice.

• Be sure the accident was reported to the railroad and to the union.

• Do not give a written or recorded statement to a claim agent or anyone else until you have the opportunity to discuss the matter with your lawyer or union officials.

• Write down, remember, and if possible photograph details of the accident and your injury.

• Write down the names, addresses and phone numbers of anyone who witnessed the accident.

• Apply to the Railroad Retirement Board for sickness benefits to which you are entitled under the law.

You should inform your doctors that unlike workers' compensation cases, they are not required to share any information about your case with your employer. We have a sample letter you can give to your doctor to explain this. Sample Letter Explaining Railroad Worker Injuries and the FELA

 harassment of injured employees

There are two exceptions: (1) The injured employee issues an invitation freely, without coercion, duress or intimidation. (2) The injured employee is unconscious or otherwise unable to effectively communicate material information to the physician and the supervisor�??s input is needed to provide such information.

The full archive of the rule 49 CFR Part 225 can be found at this link.

49 CFR Part - E9-6953.pdf

 HISTORY OF FELA

Congress as also dissatisfied with the status of the law as it related to railroad employers and their employees. Unfortunately, prior to 1908, few railroad workers or their families received any compensation for their injuries. Therefore, Congress enacted the FELA in order to protect railroad workers and to help insure that they were able to seek and receive adequate compensation for their on the job injuries. The relevant statute, Title 45 of the United States Code, Section 51, states:

Every common carrier by railroad while engaging in commerce between any of the several States or Territories, or between any of the States and Territories, or between the District of Columbia and any of the States or Territories, or between the District of Columbia or any of the States or Territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employee, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employee; and, if none, then of such employee's parents; and, if none, then of the next of kin dependent upon such employee, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

By enacting the FELA, Congress set up a system where injured railroad workers can sue their employers in court for damages resulting from the negligence of their employers. The worker may sue in either state or Federal court in any district where the railroad is doing business.

HISTORY OF Hunegs, LeNeave & Kvas

 Designated Legal Counsel Code of Compliance

On December 17, 2009, the Advisory Board of the Brotherhood of Locomotive Engineers and Trainmen adopted a revised Code of Compliance, Protocol for Designation and Rules of Conduct regarding the attorneys it recommends to its members who are injured on the job (commonly referred to as “Designated Legal Counsel”).

The new regulations govern the interaction of its officers, members and employees with Designated Legal Counsel, and alters the way firms obtain designated status. The regulations also establish a standing committee of Advisory Board members to monitor the DLC program.

The new regulations explicitly prohibit any BLET officer or employee at any level of the organization from soliciting or accepting any gift (except gifts of minimal value), payment, money, loan, promise, or agreement, or anything of tangible or intangible value, from any employer, Designated Legal Counsel, or attorney seeking designated status, who is attempting to promote the officer’s or employee’s candidacy for office, attempting to influence any election on any issue within the organization requiring a vote, and/or has interests that may be substantially affected by the performance of an officer’s or employee’s official duties.

The new regulations also prohibit Designated Legal Counsel from offering the same.

DLC firms must also submit an annual report confirming that they are continuing to abide by the Rules of Conduct. In addition, the regulations shift oversight of the Designated Legal Counsel program away from the National President and to the Advisory Board.

Copies of these documents are available on the BLET website. To download them, click here:

Code of Compliance

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