January 29, 2004
CHICAGO (Jan. 29)—UTU’s Washington-based attorney Lawrence Mann turned up the voltage on the Illinois Legislative Board’s campaign for walkway safety today when he filed a brief asking an Illinois Commerce Commission judge to revise her own proposed order and recommend adoption of the union’s proposed walkway-safety regulation.
Mann cited the January 14 death of Norfolk Southern switchman Steve Hall in the carrier’s Kankakee yard as “the most significant reason a walkway rule should be adopted.”
“At the location of the incident there was a hazardous walkway which apparently contributed to the employee falling down,” Mann alleged in his brief. The unsafe condition had previously been written up to the carrier on July 10, 2003 and a copy of that report to NS had been presented to the Commission as “Exhibit #7” during the Walkway Hearing on October 2, 2003
Mann also asked the judge to issue Norfolk Southern a subpoena demanding that it return pictures taken by UTU #1003 Local Chairman Aaron Combs that documented conditions at the accident site.
Hall’s fatality came only five days after Commerce Commission Administrative Law Judge June Tate issued proposed order that would reject a walkway-safety regulation sought by the UTU and accepted by the Burlington Northern Santa Fe, Union Pacific and CSX railroads. The proposed regulation was based upon language already adopted by the rail-safety regulatory agencies in several other states.
In addition, at the time the accident occurred the Commerce Commission’s professional rail-safety staff was putting the finishing touches on its own Brief, issued January 16, differing from Judge Tate’s proposed order and documenting why UTU’s petition should be adopted.
Noting that Judge Tate had based much of her rejection on a claim by Norfolk Southern that smaller ballast on walkways would interfere with track drainage, the Commission staff said NS already was using small ballast under its grade crossings with no apparent ill effect.
“Evidence collected from the scene, and witness testimony, suggests that Brother Hall stumbled and fell over walkway hazards that NS management knew were there and neglected to remedy,” said Illinois Legislative Director Joseph C. Szabo. “This is just an ironic sequence. Ironic and tragic. How long must we wait for common-sense walkway regulations?”
“Ties left protruding, ballast not leveled”
In support of today’s Brief asking the judge to revise her proposed order, Mann filed a sworn affidavit from UTU #1003 Local Chairman Aaron Combs alleging that Hall’s fatal stumble occurred at the same hazardous spot the UTU had called to the carrier’s attention six months ago. Combs’ affidavit and Mann’s brief reiterated the July 10 safety-hazard write-up to NS signed by UTU #1003 Local Legislative Representative James Homan that had previously been entered in evidence before the Commission..
“Photos taken–then taken away”
Combs said he attempted to document his findings of conditions with photos he took at the accident site, but he has been unable to submit his evidence because an NS supervisor seized the photos and threatened him with discipline.
“As a union officer, Brother Combs was documenting conditions at the accident site as part of a pending matter before a state regulatory agency,” Szabo stated. “For NS to attempt to interfere with evidence that is of part of a regulatory rulemaking is incredibly egregious. That’s why UTU has asked the Commerce Commission to have NS served with a subpoena ordering the photos be presented.”
Szabo said NS also removed Combs from service for three days and threatened him with loss of his job. However, they quickly backtracked when they realized the protection Combs was afforded under the state’s new Whistleblower Act, recently signed into law by Governor Rod Blagojevich.
“Simply stated, they knew that their actions couldn’t pass the ‘smell test’ – keeping Aaron Combs out-of-service was going to be very, very costly to NS,” Szabo said.
“Objections reveal witness ignorance, Mann says”
Mann’s brief pointed out another weakness in NS’s case: a poorly informed witness. Mann noted that after the carrier’s expert witness Joseph Lynch had testified he did not feel the walkway regulation was needed, cross examination revealed that Mr. Lynch did not even know that several other states had walkway regulations, and that none of the railroads in those states had complained about meeting the requirements.
Mr. Lynch further testified that the proposal’s call for smaller-diameter walkway ballast would create unsafe interaction between ballast and track structure. But cross examination showed he was unaware that such negative effect on track structure had not occurred in states with similar regulations.
“Particularly in states such as Washington and Oregon, which have much more rain than Illinois, they had not experienced drainage problems, nor interaction with track structure,” Mann said.
“The fight continues,” Szabo says
Szabo said the union hopes for a quick turnaround from Judge Tate now that the danger of unsafe walkways has been demonstrated so unmistakably by the death of another railroad employee forced to work in the presence of a walkway hazard.
“There was no reason why Steve Hall had to die,” Szabo said. “Our union local had brought the hazard in Norfolk Southern’s Kankakee yard to the attention of the carrier. I personally researched walkway safety regulations from other states and proposed language for an effective regulation in Illinois in December of 2002. UTU entered into good-faith negotiations with the railroads in our state and came to agreement with three of the four US Class One carriers.
“But because NS and CN refused to partner with UTU and the remainder of the industry, we had to plead our case before the Commission,” Szabo continued. “A hearing was held before the Commission, testimony was taken and evidence was presented documenting the conditions throughout this state, including the very site where Steve Hall ended up being killed. The professional railroad staff of the Commission agreed that our walkway petition was well founded and should be adopted.
“But before the judge’s proposed order could be revised and a walkway regulation adopted and enforced, Brother Hall perished in exactly the type of accident we were striving so hard to prevent,” he said. “Unbelievable. This fight is long from over.”