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Emergency Board Established Under Railway Labor Act Sends Report to President Biden

Tuesday, August 16, 2022

On August 16, 2022, the Presidential Emergency Board No. 250 published its report to President Biden pursuant to the Railway Labor Act and the President’s Executive Order dated July 18, 2022.

The 119-page report includes discussions and recommendations regarding wages and compensation, health and welfare, holidays, paid sick leave, carriers’ work rules proposals, and organization-specific work rules proposals. Included in the report is a summary of recommendations including a 24% general wage increase incorporated over a period of four years, with retroactive increases from July 1, 2020, to the final increase on July 1, 2024; $5,000 of service recognition bonuses over the four year period of December 1, 2020, to December 1, 2024; effective January 1, 2023, remove the cap on monthly employee contributions so that
thereafter the contributions equal 15% of the overall cost to the Plans of providing covered benefits to participants; effective January 1, 2023, change the plan design to increase the annual maximum for hearing benefits from $600.00 to $2,000.00; effective January 1, 2023, change the plan design to remove age limits on speech therapy and provide coverage for Applied Behavioral Analysis without age or dollar limits for those with Autism Spectrum Disorder; effective January 1, 2023, employees are to receive one additional paid personal day per year; and several organization specific changes regarding allowances.

You can access the entire report here: PEB-250-Report-and-Recommendations

YJB Named a National Tier 1 Law Firm for Railroad Law

Tuesday, April 11, 2022

Since 2010, U.S. News & World Report has compiled a list of the most preeminent Railroad Law Firms in the Country. And every year since, Yaeger & Jungbauer has been recognized as among those elites. YJB is proud to announce that it has once again been named a National Tier 1 Best Law Firm. YJB is the only plaintiff’s railroad law firm in the country to have been named to the Best Law Firm List for every year that U.S. News and World Report has published the rankings.

BNSF Hi-Viz Ruling: Court Rules for BNSF

Tuesday, Feb 22, 2022

Today, the US District Court for the Northern District of Texas Granted BNSF’s Preliminary Injunction and Denied the Unions’ Preliminary Injunction. As part of this order, the Court ordered that SMART-TD and BLET, as well as well as their divisions, lodges, locals, officers, agents, employees, members, and all persons acting in concert or participation with any of them—are hereby RESTRAINED and ENJOINED from authorizing, encouraging, permitting, calling, or otherwise engaging in any strikes, work stoppages, picketing, slowdowns, sickouts, or other self-help against BNSF or its operating rail subsidiaries over any dispute relating to the Hi Viz attendance standards.

DKT 59 – BNSF v. BLET – Court Order in Granting BNSF’s Preliminary Injunction- 02.22.2022

BNSF Hi-Viz  Policy Fed Ct Lawsuit Update

Tuesday, Jan 25, 2022

Yesterday, the US District Court for the Northern District of Texas held a hearing regarding BNSF’s motion for temporary restraining order (TRO) to prevent BNSF unions from striking in response to BNSF‘s unilateral imposition of its new “Hi-Viz” attendance policy which would impose significant changes to existing locomotive engineer and conductor work rules.

The Railway Labor Act (RLA) provides a federal system, structure and rules that generally govern disputes between Rail Carrier management and labor unions involving Collective Bargaining Agreement (CBA) contracts which are usually deemed “minor disputes” which under the RLA are processed through negotiation, mediation and/or arbitration and not decided by Courts.

When issues do not involve interpretation of a past or current CBA and/or involve other federal laws or federally protected rights federal courts have jurisdiction to hear such disputes, usually termed “major disputes”.

Under the RLA, BNSF and its unions negotiate changes or alterations to the CBA.  In recent years, BNSF has attempted to impose changes to work rules governed by the CBA by unilaterally imposing such changes upon unions and union workers without negotiation by claiming such changes are merely “policies” and thus not subject to negotiation.

BNSF’s new “Hi-Viz” attendance policy is scheduled to go into effect February 1, 2022. Some of the more drastic changes include new restrictions affecting the rights/ability of workers under FMLA to schedule or attend doctor appointments or medical treatment, new restrictions on Union Local Chairmen ability to represent their members when BNSF schedules disciplinary hearings to consider unfairly firing union employees; restrictions on when and how union workers can schedule or use vacation days that they have earned over the preceding year and restrictions on union employees’ ability to stay home from work due to sickness or work schedule fatigue that can cause dangerous safety situations when employees are operating mile-long trains working 12 hour tour- of-duty and forced to work when tired, sick or fatigued.

The two unions representing BNSF workers, the Brotherhood of Locomotive Engineers and Trainmen, (BLET) and International Association of Sheet Metal, Air, Rail and Transportation Workers –Transportation Division (SMART-TD) objected to BNSF‘s unilateral imposition of the new “Hi-Viz” Attendance policy without negotiation or consideration by BNSF of Union concerns.  When BNSF rejected the Union objections the unions had little alternative but to ask their members for authority to strike.

Rather than engage in full and fair negotiation of such issues BNSF filed a lawsuit in Federal Court in Ft. Worth, TX. where BNSF’s Corporate headquarters are located, asking the Court to rule that the Hi-Viz issue was a “minor” dispute under the RLA which would prevent the Court from considering Union arguments due to lack of jurisdiction.  BNSF has also requested a Temporary Restraining Order (TRO) that would prevent the Union from striking.

On Monday, January 24, the Court held its first hearing on the matter.  Another hearing is tentatively scheduled for today.

Due to the Feb. 1 potential strike date, it is anticipated that the Court will issue an order in the near future, perhaps as early as this afternoon.

Read more:
DKT 24 – BNSF v BLET – BNSF Reply in Support of Motion for TRO – Brief – 01.24.2022
DKT 25 – BNSF v BLET – BNSF Reply in Support of Motion for TRO – Appendix and Exs – 01.24.2022
DKT 30 – BNSF v BLET – Court Order Granting BNSF Temporary Restraining Order – 01.25.2022
DKT 31 – BNSF v BLET – Court Scheduling Order – 01.25.2022
DKT 33 – BNSF v BLET – BLET Answer and Counterclaim – 01.27.2022
DKT 34 – BNSF v BLET – BLET Certificate of Interested Persons – 01.27.2022
DKT 35 – BNSF v BLET – SMART HiViz Answer and Countclaims – 01.27.2022
DKT 36 – BNSF v BLET – SMART Certificate of Interested Persons – 01.27.2022
DKT 37 – BNSF v BLET – Court Scheduling Order – 01.28.2022
DKT 38 – BNSF v BLET – BLET Amended Answer and Counterclaim – 01.28.2022
DKT 39 – BNSF v BLET – BNSF Motion for Prelimary Injuction – Motion – 01.31.2022
DKT 40 – BNSF v BLET – BNSF Motion for Preliminary Injuction – Memorandum – 01.31.2022
DKT 44 – BNSF v. BNSF – BLET Motion for Preliminary Injunction – Motion – 02.02.2022
DKT 44.1 – BNSF v. BNSF – BLET Motion for Preliminary Injunction – Memorandum – 02.02.2022
DKT 46 Filed 2.02.22 Page 1 of 27 PageID 715Case 422cv00052P Document46 Filed 020222
DKT 46.1 – BNSF v BLET – SMART Motion for Preliminary Injunction – Affd LaPresta and Exhs – 02.02
DKT 47 – BNSF Motion to Extend Temporary Restraining Order – 02.03.2022
DKT 48 – Docket Entry Only – Minute Entry for Telephone Conference held 2.7.22 – 02.07.2022
DKT 49 – BLET Opposition to BNSF Motion for Preliminary Injunction – Brief – 02.07.2022
DKT 49.1 – BLET Opposition to BNSF Motion for Preliminary Injunction – Appendix and Exhs – 02.07.2022
DKT 50 – Filed 2.07.22 Page 1 of 19 PageID 848Case 422cv00052P Document50Filed 020722
DKT 51 – SMART-TD Opposition to BNSF Motion for Preliminary Injunction – Appendix – 02.07.2022
DKT 52 – Order Granting Extension of BNSF’s Temporary Restraining Order to 2.22.22 – 02.08.2022
DKT 53 – BNSF Opposition to BLET and SMART-TD Motions for Preliminary Injunctions – Brief – 02.08.2022
DKT 54 – BNSF Opposition to BLET and SMART-TD Motions for Preliminary Injunctions – Appendix (Affd Macedonio) – 02.08.2022 (1)

BNSF Railway Co. v. Union – Hi-Viz Policy

Read more:
DKT 06 – BNSF v BLET – BNSF Motion for TRO – Motion – 01.18.2022
DKT 07 – BNSF v BLET – BNSF Motion for TRO – Memorandum – 01.18.2022
DKT 08 – BNSF v BLET – BNSF Motion for TRO – Appendix and Exhs – 01.18.2022
DKT 20 – BNSF v BLET – BLET Response in Opposition to BNSF TRO – Brief – 01.24.2022
DKT 21 – BNSF v BLET – BLET Response in Opposition to BNSF TRO – Appendix – 01.24.2022
DKT 22 – BNSF v BLET – SMART Response in Opposition to BNSF TRO – Brief – 01.24.2022
DKT 22.1 – BNSF v BLET – SMART Response in Opposition to BNSF TRO – Affd Ferguson and Exs – 01.24.2022


YJB Law Firm President Bill Jungbauer was recently interviewed on the You Tube Channel Rails Tails & Trails hosted by BNSF employee Jon Chaffin

Bill and Jon discuss BNSF’s Hi Viz attendance program and the lawsuits addressing it.

Here is the link to the program:

YJB Named a National Tier 1 Best Law Firm for Railroad Law

Since 2010, U.S. News & World Report has compiled a list of the most preeminent Railroad Law Firms in the Country.  And every year since, Yaeger & Jungbauer has been recognized as among those elites.  YJB is proud to announce that it has once again been named a National Tier 1 Best Law Firm.  YJB is the only plaintiff’s railroad law firm in the country to have been named to the Best Law Firm List for every year that U.S. News and World Report has published the rankings.

To read the official press release from U.S. News & World Report, visit here.

YJB Attorneys Names Best Lawyers in America for Railroad Law

Yaeger & Jungbauer Barristers (“YJB”) has again been recognized as a nationwide leader in railroad law, with three of our attorneys being named to the 2020 Edition of Best Lawyers, the oldest and most respected peer-review publication in the legal profession.  For more than 30 years, Best Lawyers has published its list, earning the respect of both the bench and the bar, as well as the public and the media, as the most reliable and unbiased source of legal referrals.  Attorneys named to Best Lawyers are divided by geographic region and practice areas, and are reviewed by their peers (both competitors and opposition) on the basis of professional expertise.  Following this peer review, attorneys must go through an independent authentication process performed by Best Lawyers to ensure thet are in current practice and good standing.

Firm President and Senior Partner Bill Jungbauer was first selected to Best Lawyers in 1995.  A Board Certified Trial Specialist, he is a former National Chairman for the Academy of Rail Labor Attorneys and the Railroad Law Section of the American Association for Justice and a former National Designated Legal Counsel for the Brotherhood of Locomotive Engineers.  He has tried cases across the country under both the Federal Employers’ Liability Act and the Federal Rail Safety Act, securing over $100,000,000 in recovery for his clients over his four decades in practice.

John Magnuson first joined YJB in 1997 after graduating from law school.  Since that time, he has represented hundreds of accident victims and their families in both federal and state court throughout the United States.  An accomplished trial attorney with extensive experience handling personal injury, railroad, and wrongful death cases, John was the Assistant City Attorney and lead prosecutor for his hometown of Stillwater, Minnesota from 2007 to 2013.  This is John’s second consecutive year being named to the list.


Attorney Bill Jungbauer Named to SuperLawyers List for 2019

Firm President and Senior Partner William Jungbauer has been named to Thompson Reuters’s Super Lawyers List for 2019.  This marks the 14th consecutive year that Jungbauer has been so recognized.  No more than 5% of the attorneys in the State of Minnesota may be recognized as a SuperLawyer.

Super Lawyers, part of Thomson Reuters, is a rating service of outstanding lawyers from more than 90 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multiphase process, which results in a credible, comprehensive, and diverse listing of exceptional attorneys.

The Super Lawyers list is published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. Super Lawyers Magazines also feature editorial profiles of attorneys who embody excellence in their practice of law. For more information about Super Lawyers, go to

Federal Court Upholds $2.2 Million FRSA Verdict, Adds $1 Million in Prejudgment Interest Fees, and Expenses

On April 23, 2019, the United States District Court for the District of Montana upheld a November 2018 jury verdict following an eleven-day trial under the whistleblower protections of the Federal Rail Safety Act (49 U.S.C. 20109), tried by YJB Attorneys Bill Jungbauer, John Magnuson, and Christopher Bowman. The full order is available here.

The case, discussed more in the post below, concerns a former conductor for BNSF Railway Company who suffered severe injuries to his right hand and wrist.  During his shift on July 31, 2015, the conductor performed a roll-by inspection on a passing train near Coram, Montana.  When he went to exit the locomotive, the front door latch initially stuck before swinging open.  When it swung, the conductor felt a pop in his wrist, but the initial, stinging pain went away.  He dismounted off of the locomotive without difficulty, but when he attempted to reboard the locomotive after the roll-by, he lost grip strength in his right wrist and feel to the ballast below.  The injury ultimately required him to be transported down to Missoula for emergency surgery.

Following the rules imposed on him by the railroad, the conductor notified BNSF of his injury.  Rather than working with its employee on recovery, BNSF reacted by noticing the employee for an investigation, based on its half-informed suspicion that the conductor had made up the injury, despite multiple witnesses seeing him before and after the fall and noticing a marked difference in his behavior, demeanor, and physical appearance as a result of the broken and dislocated bones in his wrist.  Its alleged basis for its conspiracy theory was that the engineer did not remember the conductor specifically mentioning the fall to him after he had climbed back onto the locomotive and video from the crew shanty showed the conductor using his left hand to move some papers around on a table and open a door.  Despite a clean discipline record and statements from multiple eye witnesses, the railroad fired the conductor on the trumped up charge of dishonesty in violation of GCOR 1.6.

The conductor contacted the attorneys at YJB, who proceeded to file a claim with the United States Department of Labor.  After a two-month investigation, OSHA found that BNSF’s termination of the conductor’s employment violated the FRSA, as it had been retaliatory for his reporting of a personal injury.  OSHA ordered BNSF to “immediately reinstate” the conductor, and awarded back pay and compensatory damages of $6,000.  At the time of OSHA’s order, the damages in the case totaled approximately $65,000 plus reasonable attorneys fees.  YJB reached out to BNSF to get the conductor back to work.  Rather than working with YJB to put the conductor back to work, BNSF rejected YJB’s proposal.  The case eventually made its way to Federal Court in the District of Montana, where the $65,000 OSHA order became a $2,171,154.50 Federal Court judgment.

The parties filed post-trial motions, and on Tuesday, April 23, 2019 (almost exactly three years after OSHA had issued its order), the Federal Court has issued its ruling.  The 68-page order overwhelmingly rejects all of BNSF’s challenges to the verdict.  While the full order is available at the link above, the following excerpts are particularly insightful (All emphasis is added by YJB):

  • “BNSF argues that judgment as a matter of law is warranted in this case because Wooten failed to prove both ‘the knowledge’ and ‘contributing factor’ elements and, additionally, BNSF proved the ‘same action affirmative defense.’ As pointed out by Wooten, this is the fifth iteration of BNSF’s arguments and, for the following reasons, the Court again finds those arguments unpersuasive.”
  • “BNSF’s argument is unconvincing. Wooten only needed to show that BNSF, not Maglisceau or Fransen specifically, ‘knew or suspected’ that Wooten had engaged in protected activity by reporting his injury. And, despite BNSF’s generous characterization of Maglisceau’s and Fransen’s testimony, the Court cannot be convinced that the evidence supports BNSF’s arguments that either ‘knew Plaintiff had some injury before coming to work.’ Both Maglisceau and Fransen presented as overly biased and unreliable. The Court is convinced that there was substantial evidence showing the BNSF at least suspected that Wooten’s report was made in good faith.”
  • “BNSF focuses on Wooten’s proof on the contributing factor element, and overlooks the flaws in its own evidence on this subject. The testimony of the BNSF employees who reviewed Wooten’s case showed that they latched on to an early-formed presumption that Wooten was being dishonest that jaded their treatment of Wooten throughout. As previously stated, Maglisceau and Fransen presented as biased and unreliable. Although BNSF decries any reliance on Pino, his testimony claiming that he believed Wooten to have previously injured and dishonest–which informed the perspective of the ‘decision-makers’–was both inconsistent and lacking in credibility.
  • “BNSF repeatedly claimed that it would have terminated Wooten for being dishonest but points to no dishonesty outside of the [injury] report itself. Weighing the evidence, the jury reasonably concluded that BNSF’s accusations of dishonesty were hollow. Additionally, the jury weighed BNSF’s claims that it routinely terminates dishonest employees against Wooten’s evidence that BNSF had not fired numerous employees who had been found to be dishonest, one of whom had been dishonest in reporting an injury.”
  • “BNSF puts much stock in its internal procedures and safeguards designed to prevent discrimination while failing to recognize that these checks are only as effective as the people enforcing them. Here, Wooten successfully argued that the people, not the process, treated him unfairly by retaliating against him after he filed his injury report. Again, BNSF has not suffered a miscarriage of justice.”
  • “It hardly needs to be pointed out that the jury could have logically progressed to a finding of retaliation by finding that Wooten had reported a work-related injury in good faith–that was Wooten’s theory of the case from beginning to end. The jury verdict is both internally consistent and consistent with the clear weight of the evidence.”
  • “BNSF is one of the best-paying jobs available to individuals with limited education in Kalispell, Montana, and Wooten loved the job and had ambitions within the company. Treating the jury’s front pay award as advisory, the Court is satisfied that it is a sound award that is supported by the evidence and is not grossly excessive. [New Paragraph] Wooten was wrongfully terminated by BNSF, cutting short what he hoped would be a lifetime career with great benefits and excellent pay. Prevailing under the FRSA entitles Wooten ‘to all relief necessary to make [him] whole.’ 49 USC 20109(e)(1). The Court is convinced that a front pay award of $1,407,978 falls squarely within that statutory directive.”
  • “Giving the jury award ‘great deference’ and viewing the evidence in the light most favorable to Wooten, the Court cannot conclude that the [$500,000 emotional-distress] award is grossly excessive, monstrous, clearly unsupported by the evidence, or based only on speculation or guesswork. . . . Particularly in light of the fact that Wooten came from a ‘railroad family’ in a small ‘railroad town’ and was wrongfully terminated and decried as a liar by the railroad. Wooten testified to the emotional impact this had on him, and the Court found his testimony to be compelling.”
  • “The Court is not convinced that simply because BNSF had anti-retaliation safeguards in place, it should be able to avoid punitive damages under the FRSA. BNSF repeatedly emphasized its safeguards at trial but the jury nonetheless found that BNSF had retaliated against Wooten in violation of the FRSA. Inherent in this conclusion is the finding that BNSF’s safeguards did not prevent discrimination in this case. In other words, BNSF’s safeguards are ineffective. If the safeguards are ineffective, then they need to be fixed.
  • “BNSF claims that Wooten’s request impermissibly intermingles the time spent litigating his FELA and LIA claims with the time spent litigating his FRSA claim. However, BNSF made the circumstances supporting Wooten’s FELA claim central and directly relevant to Wooten’s FRSA claim. . . . Contrary to BNSF’s assertion, Wooten did not create this problem, BNSF did when it wrongfully terminated Wooten after claiming that he had lied in making an injury report.
  • “BNSF’s argument that Wooten’s experts charged amounts that are unreasonable in Missoula is belied by the fact that BNSF spared no expense retaining the best experts to present its side of this case. The Court will not unilaterally extinguish one side’s ability to fight fire with fire.”

The District Court also recognized that litigation under the FRSA “is highly specialized” and that Wooten’s attorneys and the rest of the YJB legal team “have risen to national prominence in this area of law for good reason,” demonstrating “a thorough and reliable understanding of the state of FRSA litigation on a national scale.”  The $65,000 OSHA judgment, which then became a $2.17 million jury verdict, has now increased to more than $3.2 million that BNSF owes for its unlawful conduct, to say nothing of the cost and expense that BNSF incurred in its unsuccessful defense of its actions.  BNSF has now retained Jones Day, one of the largest law firms in the world, to challenge the jury’s verdict and the district court’s decision before the Ninth Circuit Court of Appeals.

Other write-ups on the Wooten v. BNSF Ry. Co. litigation:



Yaeger_Ninth Circuit Court

Click here to view a copy of the Ninth Circuit decision

BNSF Adopts New PEPA Policy

Effective on February 1, 2017, BNSF imposed a revised version of its Policy for Employee Performance Accountability, or PEPA.  BNSF has historically used previous versions of PEPA to harass and intimidate its employees.  On its face, PEPA proclaims honorable goals of uniform interpretation and enforcement of BNSF rules.  Pulling back the curtain, however, it becomes clear that PEPA is a vehicle by which BNSF Management can unfairly target and discipline employees on an unequal basis at the discretion of BNSF Management.

A prime example of such mistreatment is the “Level S” discipline, allowing the railroad to target an employee who “causes trouble” by reporting unsafe policies, unsafe work conditions or equipment, or reports injuries.  The employee is given a chance to “accept responsibility” for some vague rule infraction or face the prospect of a full, on-site investigation, conducted without the benefit of legal counsel, where BNSF serves as Judge, Jury, and often executioner.  Once the employee has one “Level S” on his or her record, the employee is subject to termination for a second “Level S” at the discretion of BNSF management.  While the length of time that an employee is on probation may vary, the consequences of a “Level S” are very real.

BNSF has had various “alternative handling” policies over the years, most of which require that the employee admit fault to whatever infraction they stand accused of in writing.  Along with this new version of PEPA, BNSF is introducing its latest version of the Admit Fault Program, now styled the “Risk Reduction Education Program.”  Once again, the employee is required to admit fault in order to qualify—at BNSF Management discretion—for the program.  BNSF wants the employee to admit what he or she could have done to prevent the injury, but does not want to hear or document what BNSF did wrong or what it could have done to make the workplace safer.  If the employee participating in this program has a personal injury, their forced admissions have the possibility of destroying the employee’s rights and claims under the FELA.

Annotated copies of this new policy and implementing documents are available at the links below.  If you have any questions, do not hesitate to contact one of the YJB attorneys to help.


Rookaird Verdict


UPDATE (NOVEMBER 8, 2018): The Ninth Circuit Court of Appeals issued its decision in the case, in which it found that the district court had erred by granting the employee summary judgment on the question of whether the performance of the safety test was a “contributing factor” in the railroad’s decision to terminate the employee, remanding the case for a new trial.  Importantly, however, the appellate court did not say that the railroad was entitled to a new trial on all issues, leaving that determination to the district court.  The Ninth Circuit also rejected BNSF’s argument that the whistleblower protections found in the FRSA applied only when the employee refused to participate in an actual violation of a rule or regulation, finding that the FRSA protects railroad employees who engage in a “good-faith refusal to undertake conduct the employee believed to be violative of a law, rule, or regulation, even if the conduct at issue would not constitute an actual violation of a law, rule, or regulation if performed or continued.”  The opinion therefore should be viewed as a win for railroad employees–notwithstanding the limited remand–as it clarifies that the FRSA is a protective statute, and employees need not have the benefit of a Federal Judge and several days of testimony in order to invoke the statute’s whistleblower protections.


YJB Victorious in Whistleblower Appeal

The Fifth Circuit Court of Appeals has reversed a district court’s dismissal of an FRSA whistleblower claim, holding that the procedures utilized by the Public Law Board in reviewing a claim under the Railway Labor Act are insufficient to allow for the collateral-estoppel doctrine to give preclusive effect to a fact found by the PLB in a subsequent federal court action.

The employee was injured when he was walking on a catwalk toward the back of an engine he had just inspected when, the next thing he knew, he was laying on the ground. He told the railroad that he didn’t know what had happened, that he “must’ve mis-stepped and fell off the engine, [and] next thing he knew he was on the ground.” After more details emerged about how the incident happened, BNSF claimed that the employee had been less-than-honest and concealed the cause of his fall, and noticed an investigatory hearing. The railroad held the employee out of service over his objections and despite such action being against his contract. The hearing was eventually held and the railroad claimed that the employee had failed to furnish complete information about the circumstances leading up to his injury and had been dishonest by not furnishing complete information about the incident. The conducting officer, who had been one of the people involved in deciding whether or not to charge the employee with rules violations, recommended termination, and the railroad fired the employee, despite the fact that he had a previously clean discipline record. The employee appealed to the PLB, which found that while termination was too severe of a sanction, the employee had been dishonest about his injury.

YJB filed a claim on the employee’s behalf, arguing that the railroad’s treatment of the employee was due, at least in part, to his suffering an injury while on duty, in direct violation of the Federal Rail Safety Act. The railroad argued that the PLB’s finding that the employee had been dishonest about his injury precluded any claim, as the employee had not reported his injury in good faith. Without the benefit of oral argument, a magistrate judge agreed with the railroad and dismissed the claim by way of summary judgment. YJB appealed the decision and attorney Christopher W. Bowman represented the employee before the Fifth Circuit. Less than two weeks after oral argument, the Fifth Circuit vacated the summary judgment order, concluding that the procedures used by the Public Law Board-namely a review limited to a record of an investigation conducted by the railroad-were insufficient to allow for the collateral-estoppel doctrine. The Court also incorporated the 7th Circuit recent holding in Reed v. Norfolk S. R.R., finding that the FRSA’s election-of-remedies provision does not bar an employee from filing an FRSA claim after pursuing a grievance under the collective bargaining agreement.

Investigation reveals major gaps in railroad security

fela AT 100

There are thousands of miles of track, most of it unguarded. And traveling on them are 10,000-ton trains hauling hundreds of thousands of gallons of hazardous chemicals.

In the wrong hands, there is so much potential for harm. Then why did the Problem Solvers find so many Burlington Northern Santa Fe Railway trains for the taking?

“It’s just a matter of time. If it’s loaded with haz-mat, it’s not going to be good,” said a long-time BNSF engineer whom KOMO News has chosen to call “Joe.” “It’s all there to be done.”

“Anyone can walk inside those cabs,” said “John,” another long-time BNSF engineer. The Problem Solvers agreed to conceal the identities of both men since they are risking their jobs by coming forward. Both men are deeply concerned about BNSF’s long-time practice of leaving running trains unattended.

During several months of investigation, the Problem Solvers made some startling discoveries that raise serious questions about railway security.

At 2 a.m. in the heart of a small Eastern Washington town, a Burlington Northern train rolled to a stop and was left by its crew. There were no security crews present.

The Problem Solvers climbed on board. The locomotive was unlocked, the engine was still running and the key, called a reverser,was left inside.

The attached tank cars held sulfuric acid, a powerful corrosive that can burn and release toxic vapors. Yet on this night, the running train sat for six hours, a vulnerable target idling alone just 30 miles from a city of nearly a half-million people.

“I hate to say it, but left unattended, running like this, these are a potential weapon of mass destruction,” said Bill Jungbauer, a Minnesota attorney who became concerned about the gaps in security through several lawsuits he filed on behalf of injured BNSF workers.

“Terrorists could get this,” said Jungbauer. “They could do so much. They could kill so many people.”

Burlington Northern engineers say the railway leaves a number of running trains unattended all day and every day across Washington state and the country.

BNSF says the trains are left running to keep air in the compression brake system. But the engineers KOMO News spoke to say the BNSF’s long-time practice of leaving locomotives unlocked, running and unguarded is tempting fate.

“This has been a concern for all of the working force for a long time — the safety of these trains,” Joe said. “It would be so easy to get one rolling.”

The Problem Solvers have chosen to be very selective about the information released in this story; KOMO News does not intend to instruct anyone on how to operate these trains. But BNSF engineers say it’s not difficult to get the locomotive moving, particularly since it’s the railroad’s practice to leave the key – or the reverser – inside the cab so the next crew can find it.

Of serious concern are the unguarded, running trains the Problem Solvers found within miles of the state’s major oil refineries. One of these trains was left running, unlocked and unattended in broad daylight.

In both cases, the locomotives were attached to tank cars loaded with flammable liquid petroleum gas.

“It could sit out there for hours. Eight, 10 hours,” said engineer John.

“If they were to collide with any other train, or topple or break open, they could kill and maim thousands of people,” said Joe.

In all of these cases, the Problem Solvers were able to board the trains and get undercover video without ever seeing any security or railroad police officers. Yet when KOMO News showed the undercover video to Burlington Northern officials, BNSF spokesman Gus Melonas said, “How do I know that’s an actual reverser?” Melonas refused to believe it had been so easy to board their trains.

“I’d want to know — is this a legit video?” Melonas said. When the Problem Solvers pushed further to ask what his concerns were after seeing the video, Melonas said, “Who was in the locomotive? Was that actually a reverser?”

Melonas never acknowledged that the Problem Solvers’ ability to board running trains might be a security threat. Instead, Melonas assured KOMO News BNSF has ways to stop an intruder from moving these unattended trains.

“We have monitors. We have detectors. We have sensors. We have eyes on the railroad at all times,” he said.

But the Problem Solvers never saw any eyes on these running trains that had been left unlocked. And the engineers who pilot them every day insist they could never be stopped fast enough to prevent disaster.

“Manned, these trains could go as far as their destination, or as far until they met another train,” said John.

Joe says rail traffic is so heavy on the mainline tracks with freight, haz-mat and passenger trains that “It wouldn’t be hard for anyone to move one of these trains in the path of an oncoming train, and not only kill the crew but the community, too.”

The Federal Railroad Administration, the agency responsible for oversight, has now opened a formal investigation into what the Problem Solvers found.

“Safety along America’s railways is FRA’s top priority,” wrote agency spokeswoman Brie Sachse.

Jungbauer has confronted Burlington Northern about the lapses in security before, and the Problem Solvers obtained a videotaped deposition from an unrelated lawsuit filed by Jungbauer. In it, Burlington Northern’s senior trainmaster Doug Kayser admits the company has never conducted a security test to see if an intruder could get one of these trains moving, even with the brakes applied.

“Management knows about this,” said Jungbauer. “Management has been warned about this. And they don’t seem to do anything about it.”

Even the BNSF spokesman admits a terrorist or intruder could get one of these unattended, running trains moving.

“Nothing is impossible. But it’s extremely, highly unlikely,” said Melonas.

But the engineers KOMO News spoke to worry tragedy will have to strike before BNSF changes its procedures.

“That is the way it seems to happen,” said Joe. “It has to take something really bad to do something that could have been preventative.”


  • RR Efforts to Change FELA Causation Standard Rejected
  • YJB Lawyers File Supporting Brief with Supreme Court

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Since Congress enacted FELA in 1908, courts have interpreted the statute’s language as requiring a lower standard of proving causation. This interpretation has become a keystone of FELA cases and makes it easier for injured railroad workers to recover damages than litigants do in traditional cases. Because it eases the path of recovery, the railroad industry has been trying to change this standard for more than fifty years. In one of the most important FELA decisions in the last century, the United States Supreme Court held that the liberal causation standard used in FELA actions would not be changed to a stricter causation standard advocated by CSX and all major railroads. It is a huge win for all railroad workers.

CSX and the Association of American Railroads argued that the Supreme Court should change the causation standard used in FELA cases from “causation in whole or in part” to the more restrictive “proximate causation” standard used in many other legal actions. If CSX and the railroad industry had been successful, all injured railroad workers and their families, as well as widows and families of railroad workers killed on the job, would have had a more difficult task in obtaining just compensation in FELA cases.

In an effort to counter the power and influence of the AAR and its Railroad Members, the Academy of Rail Labor Attorneys (ARLA) decided it would file its own amicus curiae brief with the Supreme Court in this important FELA case.

One of the major focuses of ARLA’s brief was highlighting the reliance courts and injured workers have placed on the Supreme Court’s past decisions interpreting FELA as having a relaxed causation standard. This included outlining the major impact deviating from the current standard would have on railroad workers across the country. Justice Ginsburg’s opinion closely follows the template laid out in ARLA’s brief advocating that the court follow its past decisions and showing that courts across the country closely adhere to the standard. Justice Ginsburg specifically references the ARLA brief in her opinion. Further cementing the importance of the brief is the fact that none of the other amicus briefs are referenced by name anywhere in the opinion.

This is not the first time that Bill Jungbauer has been called upon to represent the interests of Railroad workers in the Supreme Court. Jungbauer represented the Brotherhood of Locomotive Engineers in filing its Amicus Curiae Brief to the U.S. Supreme Court in the important FELA case of Norfolk Southern v. Ayers, which turned out to be another huge victory for all railroad workers and a devastating defeat for Rail Carriers.

Jungbauer, Sayler and the firm of Yaeger & Jungbauer Barristers, PLC donated all of their time, efforts, and expense to researching the brief, discussing the issues of the case with numerous lawyers in the firm and around the country, writing and rewriting the brief, and finally submitting the brief to the Supreme Court.

ARLA Amicus Brief to United States Supreme Court:

Below is a link to the Amicus Brief of the Academy of Railroad Trial Attorneys (ARLA) which has been submitted to the U.S. Supreme Court in the case of CSX v. McBride. This is the most important FELA case before the Supreme Court in the last 50 years and one of the most important FELA cases of all time. CSX and all Carriers through the AAR are trying to change the law to a much tougher legal standard of recovery for Injured Railroad Workers and their families under the FELA. The term is called “proximate cause,” which can be interpreted as a much tougher standard than FELA language of causation “in whole or in part.” AAR and CSX argue that “proximate cause” in the FELA would be a much tougher standard of recovery. We argue that the FELA has a much more relaxed standard of recovery whether the Court calls it “proximate cause,” legal cause, FELA cause, etc.

The oral arguments before the Supreme Court will take place on March 28, 2011 at 11:00 a.m. Eastern Time. Our office will attend the hearing and report back to you on our impressions of the Supreme Court hearing. A final decision of the Supreme Court is not expected for a number of months. Of course, we will immediately advise you of the Court’s ruling in this important matter.

This is the first time that ARLA has submitted a brief to the U.S. Supreme Court on any matter. ARLA is comprised of FELA lawyers from around the country who represent injured workers under the FELA. ARLA works closely with all Rail Unions to educate and inform union leaders and union members of their rights under the FELA.

Yaeger & Jungbauer Barristers, PLC is proud of the fact that ARLA through its Board of Directors voted UNANIMOUSLY TO SELECT BILL JUNGBAUER OF YJB TO REPRESENT ARLA AS COUNSEL OF RECORD IN WRITING THE ATTACHED BRIEF. Jungbauer previously represented the Brotherhood of Locomotive Engineers as Counsel of Record in BLE’s Amicus Brief in the U.S. Supreme Court case of Norfolk Southern v. Ayers. That case turned out to be a big victory for injured railroad workers and their families.

Workers Rights are under attack in Legislatures in states such as Wisconsin, Ohio & Indiana; Workers Rights are also under attack in state and federal courts. United we will prevail. We all must make sacrifices in these battles. I am proud to report that all of our legal services in these Supreme Court battles have been donated free of charge on behalf of injured workers and their families.

Bill Jungbauer
Yaeger & Jungbauer Barristers, PLC
Click Here to Read the Full Brief

Lawyers representing injured people, railroad workers and their families since 1929

Experienced and aggressive, the railroad accident law firm of Yaeger & Jungbauer Barristers, PLC gets results, in court and at the negotiating table. A specialized FELA attorney knows how to take on railroads, corporations and their well-funded insurance companies, and we have recovered millions on behalf of our clients.

FELA Lawyers
Railroad Injury
Railyard Injury
Personal Injury Litigation
Auto Accidents
Negligence Litigation
Products Liability
Appellate Practice

The firm provides cutting-edge representation to injured railroaders throughout the United States in actions brought under the Federal Employers’ Liability Act (FELA), as well as the Federal Safety Appliance Act (FSAA) and the Federal Locomotive Inspection Act (LIA). Most recently, the firm has enjoyed great success in pursuing carpal tunnel claims against the railroads.

Our personal injury team provides exceptional representation to injured people in automobile, products liability, general negligence and aviation cases. Our many years of experience and nationwide presence means injured people and their families have access to the highest quality legal services at a moment’s notice.

When you are seriously injured it can feel like your whole life is out of your control. You may feel scared and vulnerable, you don’t know what is going on or who to believe. You need solid advice you can trust when it comes to pursuing a claim under the Federal Employers’ Liability Act.

Yaeger & Jungbauer Barristers, PLC is dedicated to representing railroaders and working people throughout the United States who have been injured due to the negligence of others.

If you or a family member has been injured in an auto, aviation or railroad accident, call a FELA attorney right away. We will help you understand your rights and explain what you need to do to make sure you get the medical treatment and financial recovery you need to put your life back together. In the event of an emergency after regular business hours, call our toll-free number and we will have one of our staff contact you immediately.

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Why use a law firm where the attorneys have to consult reference books to understand the basic concepts of FELA? Bill Jungbauer, in collaboration with other attorneys in the firm and with James R. Loumiet, B.S.M.E., has authored “Train Accident Reconstruction and FELA and Railroad Litigation.” The book is published by Lawyers and Judges Publishing Company, Inc. Now in its 4th edition, the book is a reference manual used around the country.

Our attorneys have decades of experience in railroad law and work collaboratively with each other to share information, research, and new concepts. Using one of our attorneys provides you with a depth of experience unmatched around the country.

Even though this depth of experience is an important reason to select Yaeger & Jungbauer Barristers, PLC, our attorneys communicate with other attorneys around the country to assist them. In the writing of this book, Bill has followed the belief that: unlike some attorneys who do not believe in sharing the fruits of their labors in print for fear that other attorneys may learn their secrets, at YJB we believe that a full exchange of ideas and research will be of some assistance to all attorneys who practice in this field and make for better law.

The testimonials and case results contained herein do not constitute a guarantee, warranty or a prediction of the results in your case.

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Am insurance bad faith verdict. A man and his wife were sitting in their parked pickup truck when they were struck and injured by a taxicab.
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