FINAL RULE Conductor Certification
WASHINGTON - Responding to petitions for reconsideration to its Nov. 9, 2011, final rule on conductor certification, the FRA has delayed for six months the testing implementation dates and clarified other mandates affecting territorial qualifications and the definition of hostlers.
The FRA, in a Feb. 8 Federal Register notice, said that because its final rule was published Nov. 9, 2011, six months later than contemplated, carriers were not permitted sufficient time to formulate training programs and have them approved by the FRA in time for testing to begin March 1, 2012.
* By Sept. 1, 2012 (rather than March 1, 2012), each railroad (other than Class III) shall designate as "certified conductors" all persons authorized by the railroad to perform the duties of a conductor as of Jan. 1, 2012; and issue them certificates of certification.
* Class I and Class II (regional) railroads, Amtrak and railroads providing commuter services, will have until Sept. 30, 2012, to submit to the FRA for approval their programs for training, testing and evaluation. Class III (shortlines, switching and terminal) railroads will have until Jan. 31, 2013 to do so. The programs submitted by railroads will require collaboration with UTU general chairpersons.
* After Sept. 1, 2012, each railroad (other than Class III) shall designate as a "certified conductor" those authorized by the railroad to perform the duties of a conductor subsequent to Jan. 1, 2012, upon successful completion of testing, training and evaluation.
* After Dec. 1, no Class I or Class II railroad, Amtrak or railroad providing commuter service shall initially certify or recertify a conductor unless that conductor has been tested and evaluated. For Class III railroads, that date is April 1, 2013.
* No later than March 31 of each year (beginning in calendar year 2014), all railroads other than Class III railroads, shall conduct a formal annual review and analysis concerning the administration of its program for responding to detected instances of poor safety conduct by "certified conductors" during the prior calendar year.
* If a conductor lacks territorial qualifications on main track physical characteristics, that conductor shall be assisted by a person who meets the territorial qualification requirements.
* For a conductor who has never been qualified on main track physical characteristics of the territory over which the conductor is to serve, the assistant shall be a "certified conductor" who is not an assigned crew member.
* For a conductor who was previously qualified on main line physical characteristics of the territory over which the conductor is to serve, but whose qualification has expired for one year or less. and who regularly traversed the territory prior to the expiration of the qualification, the assistant may be any person, including an assigned crew member, who meets the territorial qualification requirements for main track physical characteristics.
* For a conductor who previously qualified on main track physical characteristics of the territory over which the conductor is to serve, and whose qualification has been expired for one year or less, but who has not regularly traversed the territory prior to the expiration of the qualification, or a conductor whose territorial qualification on main track has been expired for more than a year, the assistant may be any person, including the assigned crewmember other than the locomotive engineer, so long as the serving assistant would not conflict with that crewmember's other safety sensitive duties and who meets the territorial qualification requirements for main track physical characteristics.
* As for qualification, and since territories differ in their complexity, railroads will be given discretion to determine how many times a conductor must pass over a territory to be considered to have regularly traversed a territory.
* Each of these territorial qualification issues will be included in each railroad's plan filed with the FRA and will contain the input from general chairpersons.
Hostler Type Assignments Not Covered
* A person who moves a locomotive or a group of locomotives within the confines of a locomotive repair or servicing area -- or moves a locomotive or group of locomotives for distances of less than 100 feet, and this incidental movement of a locomotive or locomotives is for inspection or maintenance purposes -- is not subject to conductor certification requirements.
Theproposed new minimum training standards for those in in safety sensitive positions, announced by the FRA in aFeb. 7 Notice of Proposed Rulemaking (see link, below), will also apply to conductor certification training programs. "With many thousands of new employee coming on board in the near future, the new training standards will help provide adequate training," said UTU National Legislative Director James Stem.
Use the following link to read the changes to conductor certification as published Feb. 8 in the Federal Register:
Use the following link to read the proposed new minimum training standards for those in safety sensitive positions (that will also apply to conductor certification training):
Railroad Pesticide Use
Link to: Wisconsin Statutes 94.697
94.697 Railroad pesticide use.
(1) Definition. In this section "railroad" means a person that owns or operates any railroad or part of a railroad as a common carrier in this state.
94.697 (2) Information required.
(a) No later than 48 hours before applying a pesticide to a right-of-way that a railroad owns or maintains, the railroad shall provide pesticide safety information at a central location accessible to employees of the railroad. A railroad shall include all of the following in the safety information provided under this paragraph:
2. The location and description of the area to be treated.
3. The name of the pesticide, its active ingredients, and its registration number under the federal act.
4. The approximate time and date that the pesticide is to be applied.
5. Any restricted entry interval specified on the pesticide labeling.
6. A description of where the information required to be on the pesticide label under the federal act or under ss. 94.67 to 94.71 is available for review.
7. Emergency medical contact information.
(b) A railroad shall keep the information under par. (a) posted at the location accessible to employees of the railroad for at least 30 days after the day of application.
(c) No later than 48 hours before applying a pesticide to a right-of-way that a railroad owns or maintains, the railroad shall provide all of the following to each individual who directly supervises employees who work in the area to be treated:
1. The information described in par. (a) 2. to 6.
2. A description of the central location where the railroad provides the pesticide safety information to employees under par. (a).
(e) A railroad shall make available to the public on its Internet site a description of how to obtain answers to questions about pesticide use by the railroad, including a telephone number for the railroad and any toll-free number maintained by the department to provide information about pesticide use.
(3) Worker protection. A railroad shall provide pesticide safety training annually to its employees who work along railroad rights-of-way and in rail yards and to other employees who, due to the nature of their employment, work in areas to which pesticides have been applied and shall keep records, for each training session, of the date, the employees attending, and the name of the trainer and the trainer's employer. In the training under this subsection, a railroad shall include information about restricted entry intervals, requirements for personal protective equipment, how to read pesticide labels, and incident and complaint reporting.
94.697 - ANNOT. History: 2009 a. 286.
COMPARISON OF FEDERAL AND WISCONSIN
Department of Workforce Development
Equal Rights Division
Civil Rights Bureau
OSHA News Release: [02/11/2010]
Contact Name: Rich Kulczewski
Phone Number: (303) 844-1302
Release Number: 10-0157-KAN
Illinois-based railroads ordered by US Department of Labor to compensate employee fired for reporting work-related injury
KANSAS CITY, Mo. — The U.S. Department of Labor's Occupational Safety and Health Administration (OSHA) has ordered the Illinois Central Railroad Co. and the Chicago, Central & Pacific Railroad, both headquartered in Homewood, Ill., to pay a former railroad employee more than $80,000 in back wages, compensatory damages and attorney's fees.
OSHA investigated the employee's allegation that the railroads terminated his employment in retaliation for reporting a work-related injury he sustained while performing his job. OSHA's investigation found that officials from both railroads ordered an investigation into the cause of the employee's injury, which ultimately resulted in their decision to terminate his employment. The evidence showed that the employee was in compliance with the railroads&' rules governing the reporting of work-related injuries and not at fault for his injury.'
"An employer does not have the right to retaliate against its employees who report work-related injuries," said Charles E. Adkins, OSHA's regional administrator in Kansas City. "While OSHA is best known for ensuring the safety and health of employees, it is also a federal government whistleblower protection agency."
As a result of the investigation, OSHA ordered the railroads to pay the employee a total of $80,453 that includes $57,587 in back wages and interest, $10,000 in compensatory damages and $12,866 in attorney's fees. The railroad carriers further were ordered to provide whistleblower rights information to their employees. Either party in the case can file an appeal with the U.S. Labor Department's Office of Administrative Law Judges.
OSHA conducted the investigation under the whistleblower provisions of the Federal Rail Safety Act (FRSA) as amended in 2007 by the "Implementing Recommendations of the 9/11 Commission Act." Railroad carriers are subject to the provisions of the FRSA, which protects employees who report violations of any federal law, rule or regulation relating to railroad safety or security or who engage in other activities protected by the act.
OSHA enforces the whistleblower provisions of the FRSA and 16 other laws protecting employees who report violations of various securities laws; trucking, airline, nuclear power, pipeline, environmental, rail, workplace safety and health regulations; and consumer product safety laws. Detailed information on employee whistleblower rights, including fact sheets, is available online at: http://www.osha.gov/dep/oia/whistleblower/index.html. Under the various whistleblower provisions enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA's Whistleblower Protection Program.
Under the Occupational Safety and Health Act of 1970, employers are responsible for providing safe and healthful workplaces for their employees. OSHA's role is to assure these conditions for America's working men and women by setting and enforcing standards, and providing training, education and assistance. For more information, visit http://www.osha.gov/.
Note: The U.S. Labor Department does not release names of employees involved in whistleblower complaints.
WISCONSIN LEGISLATIVE BOARD LO-056
State Director Craig Peachy (583)
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State Secretary Chris Tassone (581)
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