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Rail Safety Reauthorization Senate Testimony

STATEMENT OF EDWARD WYTKIND, PRESIDENT TRANSPORTATION TRADES DEPARTMENT, AFL-CIO

SENATE SUBCOMMITTEE ON SURFACE TRANSPORTATION AND MERCHANT MARINE INFRASTRUCTURE, SAFETY AND SECURITY ON RAIL SAFETY REAUTHORIZATION

Chairman Lautenberg, Senator Smith, and members of the Subcommittee, let me first thank you for the opportunity to testify this morning and to present the views and concerns of transportation workers as you embark on efforts to reauthorize the federal rail safety program.  As this Committee knows, the Transportation Trades Department, AFL-CIO (TTD) consists of 32 member unions in all modes of transportation, including those that represent hundreds of thousands of rail workers in the freight, passenger and commuter sectors.  There is no question that we have a vested interest in the topic of today’s hearing and, in fact, have joined with you and other members of this Committee in pursuit of policies that will enhance the safety and security of this critical industry.

The workers who operate and maintain our nation’s rail system and equipment are critical to the safe and efficient movement of goods and people throughout our country.  But for their dedication and professionalism, commerce in this country would come to an immediate standstill.  Yet, for more than a decade the safety concerns of rail workers have been ignored in the legislative process as the railroad lobby has stonewalled every attempt to update our rail safety laws.  It is long-past time to move meaningful rail safety legislation.

As we talk about rail safety initiatives, it is important to recognize that we are not dealing with an industry that can claim it does not have the resources to comply with common-sense safety directives.  The freight railroads have pocketed $25 billion in profits over the past six years according to their own annual reports.  Yet, this same railroad industry has effectively blocked rail safety legislation since the last reauthorization bill expired in 1998.

Let me mention of a few specific areas of concern that rail labor has advocated for years and place the need for rail safety authorization in some context for the Subcommittee. 1  I should also note that House Transportation and Infrastructure Committee Chair Jim Oberstar (D-MN) and Railroads Subcommittee Chair Corrine Brown (D-FL) have introduced a strong rail safety bill, H.R. 2095, which addresses many of these issues and which we have endorsed.

Reporting and Employee Protections

First, the railroad industry can never be safe if employees are intimidated and harassed when they report accidents, injuries and safety problems.  Our members continue to face retribution, harassment and intimidation for reporting accidents and potential safety and security problems.  As I have reported to this Committee before, there is a pervasive culture in the railroad industry that tamps down reporting.  In the railroads’ quest for Harriman safety awards and glowing safety reports, in reality, safety is compromised.  Workers are routinely forced into “team” reporting where groups of workers are rewarded for filing no injury reports in a given time period.  This means that when a worker severs a finger, for example, he may forego treatment or face pressure from his team – a convenient way for management to use co-workers to do their intimidating for them.

Safety measures in the railroad industry are based on FRA’s data collection from accident and incident reports.  Since workers are so soundly and routinely discouraged from actually submitting reports, the FRA’s data is inherently flawed.  Likewise, rules, regulations, penalties and fines that are based on accident and incident reports are misaligned as well.

Workers should not have to choose between job security and the security and safety of the rail transportation system – yet that is what is happening today.  The stories I hear from members are shocking – yet are common.  Members injured on the job are denied medical care until company representatives arrive on the scene and then convinced by the injured worker they need urgent care.  They are accompanied to the hospital or doctor by supervisors.  Supervisors “remind” injured workers that taking a prescription drug would make the case reportable to the FRA.  We have reams of paper documenting harassment and intimidation of workers with respect to accident and injury reporting.  It is a pervasive problem in the industry that has gone unchecked for too long and must be addressed by Congress.

Strong whistleblower language is key to improving rail safety.  Clearly, if Congress can find the will to protect those who report financial security problems as it did in the Sarbanes-Oxley Act, the same should be expected for rail workers.  We were disappointed that the Administration failed to recognize the need for whistleblower protections for workers in its bill, but are pleased that the Oberstar-Brown bill includes strong whistleblower provisions.  We also believe the section in H.R. 2095 assuring injured workers of prompt medical attention is important, and we support its inclusion your bill.

Fatigue

It is well documented that fatigue is a factor in many rail accidents.  The catastrophe in Macdona, Texas that resulted in three deaths should have been a wake up call.  According to the National Transportation Safety Board (NTSB), the probable cause of that accident was train crew fatigue.  And at the core of the issue were Union Pacific’s train crew scheduling practices.  With record profits and an overloaded system, it is unconscionable that the railroad industry refuses to hire the workers they need and instead make employees work dangerously long hours.

Operating crews often put in 12-hour days, then have to wait on their train “in limbo” for hours more until a replacement crew arrives, and then must return to work 10 hours later (or face retribution from their employer).  Limbo time refers to the time consumed between completion of the maximum allowable 12-hour shift and the time when an employee is completely released from service.  The railroads have taken advantage of an erroneous interpretation of the hours of service regulations and now regularly compel crews to remain at the work place to guard stationary trains until a relief crew is available for service.  This “relieved but not released” status means workers are forced to remain on duty for hours and hours after completing a 12-hour shift. The railroads will tell you that eliminating limbo time will create impossible scheduling problems, but let’s be clear: the reason eliminating limbo time is problematic for the railroads is because it has become a major component of their routine scheduling practices.  Limbo time was not a problem prior to the Supreme Court decision in 1996 (which held that time waiting for deadhead transportation is limbo time and therefore neither time on duty or time off duty).  Eliminating limbo time in its entirety is the only meaningful way to end its routine abuse.

For signal workers, the manipulation of hours of service has become commonplace.  While the 12-hour law applies to signal employees, there is an exception that allows employees to work up to four additional hours “when an ‘actual emergency’ exists and the work of the employee is related to the emergency.”  Railroads have exploited this exception to the extent that now almost all signal work is classified as an emergency.  Signal employees routinely work 16-hour days.
When the Hours of Service (HOS) Act was expanded to include signalmen in 1976, it was intended to be a 12-hour law.  And, it should be noted, that is how the railroads originally applied the law.  If, for example, signal personnel were working on a signal problem and were approaching the 12-hour work limit they would inform their supervisor and the supervisor would make a decision if the individual would finish the work within the time limit, or if another employee would be called to finish the repair work.  However, through gradual “creep” by the railroads the law has become a 16-hour law.  Signal employees today are instructed to work up until the 16-hour limit before they call for any relief personnel.  In some cases, the railroads authorize outright violation of the HOS Act and order their signal employees to continue working until they are finished with the repair work.

Of greater concern, is that employees can be required to work 20 hours in a 24-hour period without adequate rest.  Let me illustrate a typical duty time example for you:  on Sunday evening a signalman goes to sleep at 9:00 p.m. and awakens at 5:00 a.m. to arrive for his regular Monday shift of 7:00 a.m. to 3:30 p.m.  Under current law, at 3:30 p.m. his “rest” period starts.  At 11:30 p.m. he is considered fully rested and a new 24-hour clock begins, despite the fact that he may have just gone to sleep at 10:00 p.m.  After less than two hours of sleep he then receives a call to work at 12:00 a.m. on Tuesday.  He works four additional hours and is finished with the trouble call at 4:00 a.m.  He then travels home and has to return for his regular shift at 7:00 a.m.  The cumulative effect of the law on the individual is that he is allowed to work a total of 20 hours of service within a 32-hour period without rest.  You can imagine the situation exacerbated further when the railroads tack on their additional four “emergency” hours.  The HOS Act should be amended to require that employees performing signal work receive at least 8 hours of rest during a 24-hour period.

Furthermore, scheduling continues to be a major problem for railroads and their employees.  Unless employees know in advance what time they must report to work, they cannot properly prepare with adequate rest.  Our railroads operate on a continuous schedule, 24 hours a day, 7 days a week from coast to coast.  Rail workers do not have typical 9 to 5 work hours.  However, with the technology available today there is no reason why every rail worker cannot know his or her schedule in advance and be able to plan (i.e., rest, family time, personal time, commute time, etc.) accordingly.

Each rail carrier has an information delivery system which is commonly referred to as a “lineup” that is used to advise crews who are subject to call 24/7 regarding their status.  Our members constantly complain of problems with these “lineups.”  It is absolutely essential that employees have early and reliable information about the date and time when they will be required to report for duty.  Moreover, workers’ rest time should not be interrupted by communications from their employers.
Adequately addressing the fatigue issue will require collaboration and cooperation as do all human factor issues in our industry.  Having said that, we are committed to finding solutions to make our railroad safer and believe that there are several common-sense fixes that can be addressed immediately.  The elimination of limbo time is essential. Guaranteed time off and shortened work days will result in better rested, better prepared and more efficient employees.

Training

The current training structure for rail workers is woefully inadequate.  Despite the industry’s claim that it will need to hire 80,000 more workers just to maintain the current movement of freight, it continues to ask its workers to do more with less.  Industry leaders will tell you about their railroads’ extensive training programs and detailed security plans.  Let me tell you what rail workers – the workers who move trains, fix track, maintain grade crossing signals, repair train cars and work on-board – are telling me.  I hear first hand about an overworked, understaffed workforce that is ill-equipped to manage the capacity crunch facing our railroad system.

New hires have not kept pace with retirements in our aging workforce.  As a result, new hires are commonly steered through shortened, one-size-fits-all training programs.  Despite the hype you will hear about new state-of-the art training centers, our members continue to be frustrated by inadequate training programs.  We know from reports in the field and exit interviews that new employees are resigning and leaving the industry because they are dissatisfied with the quality of their training, uncertain of their skills and uncomfortable with what they are asked to do with limited support.

For both operating and on-board crafts as well as maintenance workers, training is largely left to peer-to-peer training.  As the workforce retires, critical “institutional” knowledge is lost.  Coupled with limited classroom training and virtually no on-the-job training requirements, workers are entering the field with very little experience and little oversight.  This is hardly a recipe for safe and stable operations.  Not surprisingly, the Administration’s bill did not address the need for a better trained and more prepared workforce.  We urge you to do better and provide, at minimum, basic training standards for all class and crafts of employees.

Similarly, certification requirements for safety-sensitive work groups are needed.  Certification provides important qualification standards for rail workers.  To ensure accountability for the safe operation and maintenance of railroad equipment and facilities, carmen, conductors, mechanics, signalmen and other safety-sensitive personnel should be certified.  Furthermore, any train that carries hazardous material should be staffed by workers certified in hazard identification, health effects and first response.  Such training and certification should obviously also apply to emergency and first responders such as track and signal employees.

Track Safety

We anticipate that your rail safety agenda will include a myriad of changes to improve track safety and the safety of rail workers and communities.  Of the many improvements related to track safety that are of concern to rail labor, let me mention just a few today.  Non-signaled, or “dark territory” refers to movement of trains over track without signals.  Trains run through dark territory under the direction of a dispatcher but without the safety redundancies of switch monitors, block protection, or broken rail detection.  Signal systems are affordable, relatively low-tech technologies that save lives.  Unfortunately, the rail industry routinely fails to properly maintain signal systems and, in fact, often petitions the FRA to waive signal requirements for large areas of track.    The tragedy in Graniteville, South Carolina occurred in dark territory.  A basic signal system would have noted that the hand-thrown switch was not properly lined and the train would have had a red signal to stop.  Nine people died in Graniteville (including the train engineer who was not properly trained in hazmat evacuation procedures).  Signal systems save lives when they are present and maintained properly.  The NTSB has been clear in its recommendations in this area.  Until the railroads commit to install adequate signal technology throughout the entire rail system, the NTSB recommendations are vital.  Moreover, rail labor is adamant that petitions to remove signal systems and increase dark territory in our rail system be rejected.  Technological advances are important tools in creating a safer rail network.  Rail labor has welcomed and adapted to technological changes over the years.  The implementation of positive train control (PTC) systems is on the NTSB’s most wanted list of transportation safety improvements.  Rail labor has partnered with the FRA and others through the Railroad Safety Advisory Committee (RSAC) process to address PTC in order to prevent train collisions and over-speed accidents.  We have been very supportive of developments in this area.    However, notwithstanding technological advancements, including PTC, we oppose single person operation of rail locomotives.  The responsibilities of a railroad to operate safely over public crossings, to inspect the moving train, to open public crossings quickly when stopped, and to interact with emergency responders as situations warrant cannot be address by PTC, and were not designed to do so.  Railroads that are intent on operating trains with a single individual are ignoring their responsibility to their employees, local communities, local emergency responders and the general public.    Oversight

A qualified, well-trained and adequately staffed inspector workforce is critical to the safety of our nation’s rails.  To that end, rail labor notes that the current level of staffing at the FRA is woefully inadequate.  Currently each FRA track inspector is responsible for over 500 miles of track.  Current regulations call for a minimum of two track inspections a week.  Understanding that track inspection is time-consuming, labor-intensive work it is impossible to expect the current inspector workforce to actually inspect all of the lines they are tasked to oversee.  More inspectors not only will increase the safety of our railroads, but an increased presence on the railroads will have the added benefit of discouraging trespassers and those intent on creating havoc on the railroad.

As the General Accounting Office (GAO) has reported, there are myriad problems with safety oversight by the FRA.  Because the number of FRA and state inspectors is small relative to the size of railroad operations, FRA inspections can only cover 0.2 percent of railroad operations. 2  When safety problems are found during that very small number of inspections (about 3 percent in 2005), the FRA does not measure the extent to which the identified safety problems have been corrected. 3  As I mentioned before, rail companies are making money hand over fist, and even the GAO states that it is not clear whether the number of civil penalties issued, or their amounts, are having the desired effect in improving compliance.  4

Even the most robust safety rules are meaningless if not fully enforced by federal regulators charged by Congress with this task.  Yet we know that the railroads have used their considerable political clout to limit enforcement activities and oversight and in reality face little consequence for safety infractions.  Fines, when they are levied at all, are little more than nuisances to multi-billion dollar rail companies.  Congress must step in to make rail carriers that violate safety regulations accountable for their actions.  Fines should be increased exponentially and penalties should more adequately reflect the level or number of infractions by a carrier.

Cross-Border Safety and Security

Finally, we hope this Committee will recognize the need to address the issue of safe cross-border transportation in the rail sector.  As U.S. industries continue their drive to outsource American jobs and cut costs, we must remember the safety implications of such actions.  Train inspections currently performed by U.S. rail workers play an important role in ensuring the safe and secure movement of U.S. cross-border operations.  We hope this Committee will consider making a strong statement in the reauthorization bill to prohibit rail carriers from waiving U.S. inspection mandates (and outsourcing them to Mexico) or other safety requirements in cross-border operations.

We look forward to working with you and as the Committee prepares to move legislation that will make our railroad industry safer.  I thank you for this opportunity to testify, and I will be happy to answer any questions.


1 Attached are two documents: “Safety Proposals by the Railroad Operating Crews,” submitted by the United Transportation Union (UTU) and testimony to the House Railroads, Pipelines and Hazardous Materials Subcommittee by the Brotherhood of Railroad Signalmen (BRS).
2 Reauthorization of the Federal Rail Safety Program: Hearing Before the House Subcommittee on Railroads, Pipelines, and Hazardous Materials, 110th Cong. (2007) (statement of Katherine Siggerud, Director, Physical Infrastructure Issues, Government Accountability Office)
3 Id.
4 Id.

Attached Document or File Rail Safety Reauthorization Senate Testimony

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