- Associated Press - Tuesday, May 20, 2014

HELENA, Mont. (AP) - The Occupational Safety and Health Administration has ordered BNSF Railway to reinstate workers in Montana and Wyoming, with back pay, after an agency investigation determined the employees were illegally fired after reporting they suffered a back injury at work.

OSHA said Monday it found that BSNF violated the whistleblower portions of the Federal Railroad Safety Act for firing an employee in Greybull, Wyoming, in 2010 and one in Havre in 2011 within weeks of when the men reported work-related injuries. OSHA ordered BSNF to reinstate both employees with back pay and interest, pay $6,000 in damages to each and reasonable attorney’s fees. OSHA estimated the total payout would be $526,000.

The Fort Worth, Texas-based railroad said it planned to appeal OSHA’s rulings to an administrative law judge.

“These allegations against the railroad are not true. At trial, the evidence will show that BNSF acted appropriately and in accordance with the law,” the railroad said in a statement released late Monday.

OSHA said the Wyoming BNSF employee was fired a month after he reported a back injury. The company said the employee failed to report the injury in a timely matter and provided false information on his personal injury reporting form.

OSHA said the employee approximated the date of his injury because he did not have the medical records to be more specific when he filled out his reporting form on Feb. 22, 2010. The employee, whose name was not released, was fired on March 23, 2010, after BNSF said he could not have been injured on the day he said he was because he had called in sick.

“There is insufficient evidence to establish that complainant intentionally provided false statements,” OSHA found. “Moreover, complainant’s employment would not have been terminated had he not reported the injury at all.”

The Havre employee reported a work-related injury on Oct. 13, 2010, about 30 hours after it happened. Two days earlier he admittedly complained when a technical director told him to pick up a hose in a storage compartment.

On Oct. 18, 2010, the employee was issued a notice of investigative hearing for insubordination for the outburst a week earlier. He received a 30-day record suspension on Nov. 16, 2010. Such suspensions do not result in lost work time or lost wages.

In December 2010, the employee agreed to a 30-day record suspension for being late in filing the injury report. Because he received a second 30-day suspension within a 24-month period, he was fired, OSHA said.

Had the employee not been brought up on disciplinary charges for reporting an injury “only” 30 hours after it happened, “he would not have been on probation and his discipline for the October 11, 2011 incident would not have qualified him for termination,” OSHA found. “BNSF has not provided clear and convincing evidence that complainant would have been terminated for the October 11, 2011 incident alone.”

OSHA also ordered BNSF to provide all employees at its facilities in Greybull, Wyoming, and Havre a copy of the Federal Railroad Safety Act Fact Sheet informing them of their rights and to post FRSA notices to employees at both worksites.

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