BNSF Railway’s exposure in FELA and other liability lawsuits arising from accidents, derailments and other incidents may have risen dramatically after the Federal Railroad Administration on May 30 booted the carrier out of a voluntary joint labor-management safety program, according to a news report circulated on Wall Street by Bloomberg financial news service.

According to a news article by Bloomberg’s Angela Greiling Keane, BNSF, the second-largest U.S. railroad, can't stay in a federal safety project because the carrier won't meet a Sept. 30 deadline for voluntary compliance. The FRA reportedly told BNSF that its lack of commitment to work cooperatively with its operating unions was the reason for the FRA action.

The voluntary Confidential Close-Call Reporting System Demonstration Project, said the FRA, is intended "to capture data that would otherwise not be captured as well as provide railroad carriers and the FRA with opportunities to identify safety issues that require corrective action."

The voluntary project was inaugurated by the FRA in February to create a cooperative environment between rail carriers and their operating employees whereby employees can share with regulators information about operational errors and near accidents without fear of being disciplined by the carrier.

In the typical adversarial environment existing on railroads -- which the FRA sought to neutralize with this voluntary project -- employees are reluctant to discuss so-called close calls out of fear the carrier will dismiss or otherwise discipline them.

Union Pacific and Canadian Pacific remain engaged in the program, Bloomberg reported.

UTU spokesperson Frank Wilner told Bloomberg that, as a result of the BNSF’s being booted from the program for its lack of commitment, BNSF would be at greater risk for damage awards from any accidents "because this demonstrates that they have greater priorities beyond safe operation."

According to Bloomberg, the FRA's push to study so-called close calls, or errors that might have resulted in accidents, comes as the FRA and Congress step up scrutiny of rail safety after two CSX Corp. derailments in New York in the past six months.
    
The FRA was aiming to have four pilot projects in place by Sept. 30.

Mistakes reported to the FRA may be as major as misaligned rail switches or as minor as requiring workers to lift too much weight, Bloomberg reported. The reporting program is modeled on successful efforts in aviation and in rail and other industries overseas, the FRA said.

"In many ways, implementing a confidential reporting system goes against the historic railroad disciplinary culture and thus requires building trust among the partners so that they can work together," the FRA said in a letter to BNSF informing the railroad it was being booted from the voluntary program.

Union Pacific, reported Bloomberg, was the first participant, agreeing in February to involve workers in its biggest rail yard, in North Platte, Neb. The Canadian Pacific participates in the program at its Portage, Wis., yard. BNSF’s program would have been at its yard in Lincoln, Neb.

According to the FRA, "The point was to offer employees a confidential or anonymous means of reporting events that could have resulted in an accident but didn't." FRA spokesperson Warren Flateau told Bloomberg that the agency has received an average of one to two tips daily since the program began Feb. 1.

The close-call project, reported Bloomberg, is part of a larger rail safety initiative announced in May 2005 by the U.S. DOT. In January of that year, nine people died after a Norfolk Southern train derailed in Graniteville, S.C., and spewed a toxic cloud of chlorine from one of the cars, which resulted in multiple fatalities. The National Transportation Safety Board determined that a misaligned switch caused the accident.

UTU International President Paul Thompson said the UTU has attended every meeting initiated by the FRA on the close-call project and is saddened by BNSF’s lack of commitment to the program.