December 17, 2007
CHICAGO (Dec. 17)—U.S. District Court Judge Virginia M. Kendall ruled today that Norfolk Southern Corp. “failed to prove” that Illinois’ effort to regulate the safety of railroad-yard walkways interferes with federal laws covering track safety standards.
In a 2005 lawsuit, NS contested the 2004 Illinois Safe Walkways Law, arguing that the finer ballast and flat surfaces required for safe footing would interfere with track drainage and track stability required by existing Federal Railroad Administration rules governing safe train operations.
But Judge Kendall ruled that NS’s three expert witnesses never proved the two standards conflicted.
The ruling leaves the Illinois Commerce Commission (ICC) free to start enforcing the Safe Walkways Rule, which mandates that all newly constructed and reconstructed yard tracks in Illinois must include safety features that prevent employees from losing their footing while working on the ground.
Employee walkways now must have a minimum width of two feet and any ballast used must be no bigger than ¾ inch in diameter and must be spread in a “uniform manner.” Walkway slopes can rise or fall no more than one inch in height for every eight inches in length or width, and walkways must be free of obstacles, including rocks, equipment and debris.
The ICC may also order the safety standards for existing tracks where conditions for walking are shown to be hazardous.
“This decision is a tremendous victory for UTU members and all the crafts that work in railroad yards,” said UTU Illinois Legislative Director Joseph C. Szabo. “We argued for the new regulation and over time demonstrated that it was needed. This is really a story about perseverance. We simply weren’t going to give into the power and money of NS.”
Over a two-year period from 2002 to 2004, the UTU petitioned the Illinois Commerce Commission and worked for a new regulation mandating safe, level, and unobstructed walking conditions where railroad employees regularly worked on the ground.
Despite presentation of documents showing that rail workers were being injured the Commission failed to issue a new safety rule until February 2005 after both houses of the Illinois General Assembly passed legislation directing the Commission to do so.
“The Commission wouldn’t do it under its own authority, so UTU passed a law that required it to,” said Szabo.
But before the ink had dried the new rule was challenged in a federal suit filed by Norfolk Southern Corp. NS charged that the Illinois law was in conflict with existing federal track-safety standards and that under the doctrine of “federal pre-emption” the federal laws must prevail.
NS’s attorneys and expert witnesses asserted that the smaller ballast that the Illinois law specified for employee footpaths would not sufficiently drain or stabilize the track as mandated under federal safety regulations. Prof. Donald Uzarski, a lecturer in the University of Illinois’s railroad-engineering program at Champaign-Urbana, told the court that if NS complied with the new Illinois law by building safe walkways, its yard tracks would be weakened by standing water and its tracks would migrate out of alignment under the impact of moving trains.
Another NS witness, Ass’t. VP Maintenance of Way Jeffrey McCracken, said that track stability requires that ballast must extend six inches beyond the end of each crosstie (shoulder ballast) and then must descend at a 2-to-1 slope down to the sub-ballast and a culvert or drainage ditch. After allowing for the slope of such ditches, McCracken said, there would be no space left between tracks for distribution of the finer ballast specified in the new Rule.
But in today’s ruling Judge Kendall noted that 60 Illinois Commerce Commission photographs of NS’s largest Illinois yard, Decatur, and its second-largest yard, Calumet, in Chicago, showed that ballast was not ditched between the tracks.
“The photographs taken in the Decatur and Calumet rail yards do not show a yard track design as McCracken described,” Judge Kendall wrote. “The parallel tracks do not have a V-shape slope between them. Rather, the surface adjacent to and between the yards tracks…is flat.”
Judge Kendall noted in her decision that while McCracken had claimed that fine-ballasted, flat walkways caused drainage problems, he failed to present evidence.
“Norfolk Southern provided no evidence of drainage or track stability problems beyond McCracken’s testimony—that is, no documents from the FRA, the ICC or Norfolk Southern itself,” the judge wrote.
“In the end, there was no documentary evidence of an actual instance where drainage problems were caused by walkways adjacent to yard tracks, or where drainage problems were caused by the design currently used at the Calumet and Decatur rail yards. Without such evidence, this Court concludes that Norfolk Southern has not carried its burden of proving that the State Rule will frustrate the Federal Railroad Safety Act’s goal of safe railroads.”
Szabo hailed Judge Kendall’s decision as a victory for workplace safety and a vindication of the effectiveness of organized labor in protecting workers against corporate abuse.
He also said the decision also reflected a victory for union solidarity because critical expert testimony on track construction was contributed by Richard A. Inclima, director of education and safety for the Brotherhood of Maintenance of Way Employees.
“Rick Inclima was a godsend for UTU and the State of Illinois,” Szabo said. “He served as an expert witness on behalf of the State without any personal compensation. Most of the NS witnesses were “hired guns” well paid to provide their ‘professional opinions.’ Rick did it out of personal conviction.”
Szabo also praised the staff of Illinois Atty. Gen. Lisa Madigan for standing behind the Illinois Commerce Commission in its efforts to enforce its 2004 Safe Walkways Rule.
“The AG’s office took the interests of Illinois rail workers to heart and never flagged in dedication to them,” he said. “We owe Lisa Madigan and her staff a great debt of gratitude for this victory.”