Rail Labor goes to Supreme Court to protect FELA

Major U.S. railroads are using the U.S. Supreme Court in an attempt to weaken the Federal Employers' Liability Act (FELA), the federal law that promotes a safe workplace for rail workers.

"In contract negotiations, the carriers are trying to do away with all they can - cutting crew size and gutting our health care," said Don Hahs, National President of the Brotherhood of Locomotive Engineers and Trainmen. "Now they're using the court system in an attempt to gut FELA."

The carriers' actions stem from a U.S. Supreme Court Case, Norfolk Southern vs. Timothy Sorrell. Lower courts awarded a $1.5 million FELA settlement to Sorrell, a trackman for the Norfolk Southern who was injured in 1999 when the company vehicle he was driving was run off the road by another company vehicle.

Sorrell suffered ruptured disks in his back and other permanent injuries that prevented him from returning to his railroad job. Sorrell, whose wife has multiple sclerosis, lost his job and health insurance as a result of the accident, and still suffers debilitating back pain during most everyday activities.

After losing cases in lower courts as well as appeals courts, Norfolk Southern argued the case all the way to the U.S. Supreme Court.

However, in Supreme Court arguments presented on October 10, the Norfolk Southern lawyers attempted a "bait and switch," according to Sorrell's attorney Jerry Schlichter of Schlichter, Bogard & Denton in St. Louis.

"Norfolk Southern got the Supreme Court to take the case based on one ground, and when the Supreme Court took it, the railroad raised a different ground," said Schlichter, who is on the BLET's recommended list of Designated Counsel for FELA cases.

NS advanced the case to the Supreme Court based on the railroad's argument that the negligence standards for railroads under FELA should also be used to determine employee negligence under FELA.

However, once before the Supreme Court, NS argued that the Court should modify FELA by ruling that a higher standard for accident causation should be employed, completely ignoring their original arguments for getting to the Supreme Court in the first place.

"Our strong view is that the railroad is now trying to do through the judicial system what it couldn't do through legislation, which is the gutting of the FELA law," Schlichter said.

To support his view, he said that the Association of American Railroads (AAR) filed a brief on behalf of Norfolk Southern's position, stating that the Supreme Court's ruling would have an impact on virtually every railroad injury case in the country. "It asks the Supreme Court to overturn its own decisions," he said.

Weakening the causation standards for rail accidents would make the rail carriers virtually blameless for accidents, rendering the FELA powerless.

According to Schlichter, BLET President Don Hahs organized other rail unions to file a joint amicus brief in support of Timothy Sorrell.

In addition to BLET, the other unions include: American Train Dispatchers Association; Brotherhood of Maintenance of Way Employes; International Brotherhood of Boilermakers & Blacksmiths; International Conference of Fireman & Oilers; Transportation Communications International Union; United Transportation Union; and the Brotherhood of Railroad Signalmen.

FELA was enacted in 1908, and for the past 50 years, Rail Labor has resisted lobbying efforts by the railroad industry to abolish or weaken FELA.

"One of the major purposes of FELA is to promote safety within the railroad industry," the amicus brief states. If Norfolk Southern is successful, however, "railroads would no longer have this duty and there would no longer be an effective deterrent to their negligence."

In addition, FELA was intended by Congress to be a way to facilitate compensation of workers who are injured or killed in the course of their railroad employment. According to the amicus brief, "Congress desired for injured railway workers to receive fair compensation for their injuries."

President Hahs condemned the underhanded tactics employed by Norfolk Southern in this case. "Norfolk Southern got into the Supreme Court on one premise, and now they're arguing a different premise," he said. "It's the same type of dishonesty the entire industry has displayed throughout our collective bargaining sessions this round."

In addition, it is an example of why unions are so important in the rail industry. "Rail unions today must serve as watchdogs to guard and protect the benefits that the union leaders who came before us fought so hard to achieve," he said. "This is another example of why unions are necessary. We have to protect what we have, because the carriers are trying to take it away."

The U.S. Supreme Court Case is Norfolk Southern Railway Co. vs. Timothy Sorrell (Case No. 05-746). More information will be provided when the Court announces its decision. In the meantime, those interested in copies of the legal briefs filed by attorney Jerry Schlichter may contact him by e-mail: jschlichter@uselaws.com.



© 2006 Brotherhood of Locomotive Engineers and Trainmen