UP Official's Threats Illegally Retaliated Against Sick Locomotive Engineer

Union Pacific engineer Lonnie Smith reported for duty at Green River, WY with a stuffy nose. On the way west to Pocatello, ID, Smith's symptoms ripened into a splitting migraine headache, nausea, and pressure behind one eye that made it hard to see. He believed the environment in the locomotive cab was making his symptoms worse.

Smith and his conductor called the Pocatello yardmaster to explain that Smith was sick. The yardmaster told them to wait at a grade crossing at the south end of Pocatello. They waited for 40 minutes. No manager ever showed up. Then the yardmaster had them move to a second crossing closer to the yard. Fifteen minutes after arriving there, senior terminal manager Wilson boarded the train.

Smith explained that he was sick and couldn't finish the trip. Wilson got angry and said, "if you're going home now, you're looking at being fired or at the very least, a target on your back," and, if this work does not get done, "shit is going to hit the fan." Smith repeated he was sick but said he didn't want to get fired over it. As Wilson was walking back to his truck, Smith vomited out the cab window.

Smith and his conductor took the train north into the Pocatello yard. The conductor tried to expedite tying up the train, but a yardmaster -- who had driven out next to the train to watch them -- intervened by radio and ordered the conductor to unsecure the train. Because their hours of service had run out, this meant they couldn't leave the train. They waited another 45-50 minutes before relief arrived.

Smith filed a retaliation claim under the Federal Railroad Safety Act. That statute prohibits, among other things, denying or delaying medical care to an employee injured during the course of employment. It also prohibits retaliating against an employee who has requested medical treatment.

The railroad said Smith's sinus symptoms weren't work-related because they pre-dated his on-duty time at Green River. The railroad also said Wilson didn't break the law because he only threatened to fire Smith. UP and its lawyers apparently think they can threaten railroaders all they want so long as they don't actually carry out the threats.

The U.S. Department of Labor administrative law judge ruled Smith's sinus condition was work-related because the cab environment aggravated it during the trip west. Significantly, the judge rejected the railroad's argument that merely threatening discipline doesn't violate the statute. The judge explained that any management conduct -- including but not limited to actually imposing discipline -- that would dissuade a reasonable railroader from requesting medical care violates the statute.

The administrative law judge awarded Smith back pay, emotional distress damages, and punitive damages. He specifically imposed part of the punitive damages on terminal manager Wilson and required Wilson to pay that part of the award personally.

Lonnie Smith v. Union Pacific, U.S. Dept. of Labor Cause No. 2012-FRS-39 (4/22/2013).

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