Foremen Layoffs on Union Pacific Impact Safety

Each day BMWE members toil to keep the track structure safe for the trains carrying both freight and passengers. Members apply themselves with skill and dedication, striving to maintain the highest levels of track safety and productivity under arduous conditions in a dangerous and unforgiving work environment.

The cornerstone of track safety in the United States is the Federal Railroad Administration's Track Safety Standards. These safety standards are published in Title 49 of the Code of Federal Regulations, Part 213 (49 CFR, Part 213). These are federal laws which prescribe minimum safety standards for track maintenance and construction and the railroads have a responsibility to maintain their track to at least the levels prescribed in the Federal Track Safety Standards.

The day to day responsibility for assuring a railroad's compliance with the Track Safety Standards, however, falls upon persons designated by the railroad as qualified under Section 213.7 of the standard. Non-compliance can lead to monetary fines up to $22,000.00 against track owners and/or against persons designated by the railroad under Section 213.7 to: (1) supervise certain restorations and renewals of track under traffic conditions; and (2) inspect track for defects.

With all the cutbacks and force reductions resulting from recent mergers, BMWE members are being forced to work even more shorthanded then ever before. Now, certain railroads, most notably the Union Pacific Railroad, have even gone as far as to cut off the gang foremen in an effort to fund their highly leveraged mergers and management's golden parachutes.

The cut off of foreman positions has a direct impact on track and roadway worker safety and has placed additional burdens upon the remaining workforce required to carry out their expanded duties shorthanded and without the benefit of a foreman. Essentially, by cutting off "213.7 qualified" foreman, the carrier has stealthily shifted responsibility for compliance with the Track Safety Standards to other workers not holding the position of foreman (typically machine operators, welders, etc.) but otherwise designated by the railroad as qualified under 213.7.

For example, because of the wholesale layoff of qualified foremen on UP, it is becoming all too common for surfacing gangs to be sent out without foremen to tamp or line a section of mainline track. The operator or operators on the gang are generally qualified under the book of rules to get their own track occupancy authority (track and time, Form B, etc). An individual on the gang, often one of the machine operators, contacts the dispatcher to set up a window of track occupancy authority between trains. Upon issuance of authority from the dispatcher, the foreman-less gang travels out to the job location. When they arrive at the job site the gang members perform the tasks they were assigned. As has always been the case, in an effort to maximize productivity and get the assigned work done, the gang often works just short of the time allotted under their track occupancy authority and then highballs into the clear with just minutes to spare. Once in the clear, the employee who holds the track occupancy authority calls the dispatcher to report clear and the dispatcher is again free to move trains.

What's missing in this scenario? Well clearly, the foreman is missing. But what else might be missing is a comprehensive inspection of the work performed, as required under law, to assure the track is in compliance with the Track Safety Standards prior to allowing trains to pass. Also missing is a clear delineation of who is responsible for assuring compliance with the Track Safety Standards and Roadway Worker Protection regulations when a gang is sent out to work without a foreman. What seems to be missing most of all, however, is management foresight. In the never ending quest to increase profits and stockholder dividends, the powers that be have decided that foremen on UP are expendable.

BMWE recognizes the critical contribution of foremen to railroad and worker safety and believes that UP's actions are a clear indication that, in the corporate boardroom, the almighty dollar takes precedence over safety and operational efficiency. Maintenance of way track forces are again being asked to do more with less, a situation that adversely affects workers and railroad safety across the UP system.

The fact of the matter is that the railroad will always find someone else to blame for their lack of planning and foresight. Regardless of the circumstances, someone on the gang will always be blamed as the responsible party should something bad happen. Most likely it will be the individual who was issued the track occupancy authority that will be "hung out to dry" if track conditions are found not to be in compliance after a derailment or an FRA inspection.

And who, absent a foreman, is responsible for fulfilling the duties of "Employee in Charge" under the Roadway Worker Protection regulations? Again, rather than addressing the manpower issue and acknowledging the critical contribution of qualified track foremen to the safety and efficiency of the operation, the railroad will simply look for someone else on the gang to blame should the unthinkable happen.

Where the railroad has chosen to cut off foreman positions, they have, by that act, stealthily shifted the responsibility for compliance with federal safety laws, including the Track Safety Standards, to others. Therefore, regardless of job title, employees working without a foreman but otherwise deemed "213.7 qualified" by the railroad and engaged in restoration and renewal under traffic conditions must protect themselves from discipline and possible monetary fines up to $22,000.00 by taking the time to assure the track meets the minimum FRA requirements for that class of track or institute remedial action to bring the track into compliance before releasing the track for traffic.

This means taking the time to inspect the work performed prior to going in the clear and relinquishing track occupancy authority back to the dispatcher. Yes, productivity will suffer but rail management can only blame themselves for any lost productivity. Machine operators, welders, and others can not simultaneously operate sophisticated on-track machinery and perform other highly specialized functions, establish work limits and adjacent track protection under RWP, clear trains through Form B limits, supervise the work in progress, and inspect track for compliance with the Track Safety Standards all at the same time. These are separate and distinct functions which require separate allotments of time to perform properly and diligently in accordance with federal law and the railroad's own safety and operating rules.

The UP, in its infinite wisdom, has chosen to create a bottleneck of productivity and safety by cutting off foreman positions and saddling others with additional responsibilities which could lead to discipline, dismissal, monetary fines up to $22,000.00, and possibly death. Do not let the railroad's manipulation of the rules, decimation of track forces, and lack of foresight put you in a position of being "hung out to dry."

If it's unclear who is to perform the required responsibilities discussed in this article, seek clarification from the railroad before you go out to work because history reminds us that the carrier will always try to hold someone responsible when something goes wrong. Remember, the job or the life you save may be your own.

The union would like to hear your views and experiences related to these important safety concerns. If you have any information to share, or if you are currently working on a gang where the foreman's position has been eliminated, please advise your general chairman as soon as possible.

Overview of 49 CFR Part 213.7

Section 213.7(a) of the Track Safety Standards requires each track owner to designate qualified persons to supervise restorations and renewals of track under traffic conditions. Under the standard, each person designated must have at least: 1) one year of supervisory experience in railroad track maintenance or 2) an equivalent combination of supervisory experience in track maintenance and formalized training related to track maintenance.

In addition to the minimum experience and training criteria, each designated person shall have demonstrated to the track owner that he or she (i) knows and understands the requirements of Federal Track Safety Standards; (ii) can detect deviations from those requirements; and (iii) can prescribe appropriate remedial action to correct or safely compensate for those deviations.

If a person meets these requirements to the satisfaction of the railroad, then the railroad can designate that person as "213.7 qualified" by issuing written authorization to the designated employee. In most cases, written authorization comes in the form of a "qualification card" stating that the named individual is qualified under 213.7.

Once a railroad designates a person as "213.7 qualified" (qualification card issued and recorded), the railroad can and will hold a "213.7 qualified" person responsible for track conditions that the person knows, or should have known, do not meet the minimum requirements of the Federal Track Safety Standards.

Historically, the responsibility for supervising restoration and renewal of track under traffic conditions has been placed with a qualified foreman or similar person in a supervisory capacity. The foreman would be responsible for supervising and directing the employees under his/her jurisdiction and assuring that the track is in compliance with the Track Safety Standards prior to releasing the track for traffic. However, in today's railroad environment of downsizing, mega-mergers, massive force reductions and cut off of foreman positions, other designated "213.7 qualified" railroad employees (regardless of job title) are, sometimes unknowingly, held responsible for supervision of restorations and renewals of track under traffic conditions because there is no longer a foreman on the job.

Under Section 213.11, FRA requires that if, during a period of restoration or renewal (including, but not limited to, surfacing, lining, tie renewal, gaging, angle bar replacement, etc.), track is under traffic conditions and does not meet all of the requirements prescribed in Part 213, the work on the track shall be under the continuous supervision of a person designated under Section 213.7.

While FRA does not specifically require a "213.7 qualified" employee to oversee each and every aspect of restoration and renewal as it progresses, a "213.7 qualified" person must be present at the job site in direct control of the work and have direct knowledge of the condition of the track over which he/she permits a train or trains to pass. This section (213.11) requires a "213.7 qualified" employee to assure that the track meets the requirements of the track safety standards, or to take appropriate remedial action (i.e., place slow orders or remove track from service), before releasing the track back to the dispatcher for traffic or otherwise allowing trains to pass.

Violation of FRA standards could lead to serious consequences including discipline, dismissal, severe injury or death, and monetary fines against the railroad or individuals of up to $22,000.00 for willful violations.