In the dark of the early morning, Payne had only his handheld lantern to see as the train moved down the satellite yard in the small town of Fostoria. During the maneuver, he was fatally impaled by a tree limb hanging into the railroad right of way.
His death was entirely preventable, according to Payne’s coworkers, attorney and union leaders. Other employees had reported the issue of vegetation growing into the path of trains to managers at his employer, CSX railroad.
“This is a case where the railroad dropped the ball,” said Alabama attorney James Wettermark, who is representing Payne’s widow. “A safety issue came up, it was brought to their attention. It was probably a very little thing in the railroad world, but it wasn’t dealt with properly. And that’s the problem.”
The seven Class I freight carriers — the country’s largest and best known railroads — all espouse safety as top priorities. But in the last few years, new business models have intensified railroads’ efforts to boost profits. And that has led to deep cuts to staffing and deteriorated relationships with employees, who only averted a national rail strike this month by an act of Congress.
Many of those employees told The Star that railroads have reduced important employee training, cut back on safety in rail yards and in some cases skipped preventive maintenance measures on railroad equipment.
As part of a monthslong investigation, The Star reviewed public records and spoke with dozens of employees, union leaders and industry experts. When accidents occur, they said, employees often get the blame.
Wettermark, who has represented railroad workers for 40 years, views Payne’s death as a classic example of what’s wrong with American freight railroads. He sees example after example of employees losing limb and life because the railroads won’t spend enough time or money on safety.
“The list just goes on and on and on,” he said. “There is a significant discrepancy between the railroads’ talk, their mantras, their platitudes about safety and the way safety is actually implemented in the field.”
Railroading has always been dangerous work. It involves huge, heavy equipment and employees work at dangerous heights and move hazardous materials. And even the slowest trains are difficult to stop.
Jason Hayden, the Missouri legislative director for SMART Transportation Division, the nation’s largest railroad union, said there’s an old adage among rail workers about their employers’ attitudes: “Safety is fine until it costs a dime.”
“They love to preach safety,” he said. “They love to enforce safety, but when it comes down to spending company money to do much about it, they shy away.”
Railroads contacted by The Star wouldn’t answer questions about specific employee accidents. But the companies all said safety is a top priority and they invest heavily in safety programs — and rejected accusations that they are endangering employees.
In a statement, CSX declined to comment on Payne’s death because of pending litigation. But the company said it complies with federal rules that prohibit trees and brush from contacting rail equipment.
“We proactively clear brush and trees from our property, unfortunately weather and other natural disasters can cause trees to fall and foul our tracks unexpectedly,” the company said.
Railroad employees are given countless safety guidelines. But unions and lawyers say voluminous rule books make it nearly impossible for employees to follow every safety precaution and keep trains moving.
Experts say there’s no excuse for persistent levels of foreseeable on-the-job injuries — even though those numbers are far lower than in decades past.
In a changing rail industry, trains are getting longer but there are fewer of them overall as companies cut unprofitable routes. So experts say the numbers of injuries should be even lower because railroads have drastically reduced employment levels, implemented new safety technology and cut train traffic.
“The rates of fatalities are little unchanged, the amputations are still occurring and workers are still becoming disabled with frightening regularity,” Jeremy Ferguson, president of SMART Transportation Division, told Congress earlier this year. “A cry for rail safety has never been more needed or more appropriate.”
Data from the Federal Railroad Administration shows that the number of workplace fatalities has, in fact, declined in recent decades. Last year, 11 railroad employees were killed on the job, a 45 percent reduction over the 20 deaths a decade prior. Likewise, the number of workplace injuries has declined in recent years.
But the rates of accidents, which compare train traffic to accidents, is troubling. FRA data show that the rate of accidents per million miles of train travel has increased over the last decade. Likewise, the rates of yard accidents have increased, even as the volume of yard work has declined.
“There should be a declining slope,” said Grady Cothen Jr., a former safety official at the FRA.
That’s because of new railroad technology that should have made the industry safer for workers and the public. Positive train control, for instance, an autopilot-like system, can automatically slow a distressed train to a stop and prevent collisions. Sensors track wheel temperatures and can avoid problems with brakes before they ever happen.
Yet members of the National Transportation Safety Board say they continue to see recurring safety issues that are “100 percent preventable.” Since 2000, 375 railroad workers have been killed on the job and more than 109,000 have been injured, according to the U.S. Bureau of Transportation Statistics.
The American Association of Railroads, which includes the seven major freight lines, said the industry has made great strides in employee safety in recent decades. But with human factors at play, technology can only go so far in preventing accidents, said Michael Rush, the organization’s senior vice president of safety and operations.
Rush said the major railroads continue to invest in safety improvements. More automation, for instance, should help prevent accidents in the field, he said.
“Employee safety matters to the railroads,” he said. “We’ve made incredible strides and become a much safer industry.”
Federal regulators, however, have noticed increasing accident rates.
“That is something that we are looking at new ways to address,” said Karl Alexy, the FRA’s associate administrator for railroad safety and chief safety officer. “So it is a concern.”
Accident Investigations Questioned
Enforcing stricter safety on railroads has never been easy. Railroads exist in a unique regulatory environment that means many accidents, crashes and injuries are never independently investigated. In some cases, the railroads will even investigate themselves.
The NTSB undertakes exhaustive investigations of major crashes and derailments like the June 27 Amtrak crash outside of Mendon, Missouri. But the agency is so underfunded it can only investigate a fraction of the eligible cases each year.
Last year, the NTSB investigated only 14 train incidents. That’s less than 1 percent of the 1,887 accidents that met the agency’s criteria. More than 700 of those weren’t investigated because the NTSB determined doing so would provide limited safety benefits. But another 1,145 were not reviewed because of limited agency resources.
NTSB has no regulatory powers. So its safety recommendations can go unheeded by railroad companies and the Federal Railroad Administration.
“We believe that in fact lives have been lost as a result of delay in implementing our recommendations,” NTSB board member Thomas Chapman told The Star.
The FRA, the industry’s primary regulator, is empowered to investigate incidents, but it also only looks into a sliver of them.
The agency investigates about 100 train accidents each year. That includes all worker fatalities. But its injury and crash data largely rely on self-reporting from railroads.
And the FRA, which like the agriculture department aims to boost farming, also works to bolster the freight railroad industry.
“They have kind of a dual role of both promoting the industry and regulating the industry,” said Jordan Barab, a former deputy assistant secretary in the U.S. Labor Department’s Occupational Safety and Health Administration. “So you’ve got this inherent conflict there.”
Alexy, of the FRA, said safety is the top priority of his office and no such conflict exists.
In the case of Payne’s death in 2020, the FRA told union officials it was investigating.
But no report has been published.
“Nobody knows what their findings were,” said Clyde Whitaker, an Ohio union leader who previously worked with Payne. “I’ve sent in an information request and I have yet to see anything.”
The Star sent a records request for the accident report under the federal Freedom of Information Act, but has yet to receive it.
Whitaker talked with other union members after Payne’s death. He learned two managers — including one who later investigated Payne’s death for CSX — were told about a rotting tree that looked like it was leaning into the railyard. A few days later, he found out that an Ohio union official had previously told a CSX dispatcher that “the entire area had extreme vegetation, trees sideswiping the cars, hitting people on the equipment.”
Payne, who was 39, left behind a wife of 18 years and five children.
Whitaker said the railroad was quick to clear the trees that lined the track in Fostoria, but only after Payne’s death.
“Instead of the railroad doing the right thing when it was first reported, they wait until after we have a fatality,” he said. “And they trucked up a brush cutter from New Orleans and they clear out the entire area within like two days.”
Blaming the Workers
Matthew Darby says the nation’s large railroad companies have a simple reaction to on-the-job injuries and deaths.
“Here’s their defense strategy: It’s not our fault,” said Darby, a Maryland lawyer who represents railroad workers.
Railroads operate under the employment injury system for federal workers, not workers compensation systems that apply to most private employers. The federal system is fault-based, meaning an employee has to prove their injury was the fault of the employer. Workers compensation, by contrast, doesn’t require any finding of fault so long as an injury was work related.
That leaves many railroad workers who twist an ankle or lose a limb to rely on the courts for compensation. Most of those cases are eventually settled out of court, which generally requires injured workers or relatives of employees killed on the job to sign nondisclosure and non-disparagement agreements.
Darby, who leads a national association of attorneys who represent railroad workers, said employees are often pressured not to report injuries. On-the-job injuries must be reported to federal regulators and many supervisors have bonuses tied to keeping injury rates low, Darby said.
Attorneys say the major railroads frequently use their rule books to punish workers in the field and blame them after injuries occur.
“Railroads have a history of putting productivity ahead of safety,” reads a lawsuit filed by Justin Berberich, a Kansas City Southern conductor based out of Pittsburg, Kansas. “Employees who refuse to compromise their safety often find themselves terminated, which the railroad accomplishes by disparately applying their vague and voluminous workplace rules.”
Kansas City Southern has denied those allegations in court and noted in a statement to The Star that Berberich was found to have credibility problems in a previous case before an administrative law judge. The railroad said the federal lawsuit’s rhetoric was written for the “improper purpose of catching media attention or to prejudice” readers against the company.
At Kansas City Southern, “safety always comes before productivity; it is not a balancing act,” the railroad told The Star.
During his tenure in the Obama administration, Barab said railroads stood out for retaliating against injured workers.
“Punishing workers for reporting injuries is not uncommon. But it’s illegal,” Barab said in an interview with The Star. “What made the rail industry unique is they would not only admit it, they would try to justify why it was good policy.”
He saw several cases of retaliation against employees who reported safety issues or who were injured on the job. For example, OSHA in 2015 accused Union Pacific of creating a “culture of retaliation” after it investigated three cases of the railroad disciplining employees who reported workplace injuries and sought medical attention.
“Discouraging reporting of injuries and illnesses makes the workplace less safe,” Barab said.
Union Pacific told The Star it’s committed to treating injured workers fairly and that it encourages employees to report potential safety problems. The company said it doesn’t retaliate against employees for reporting injuries or safety concerns.
Barab recalled a meeting with railroad executives who defended the practice of punishing injured workers as a way to discourage carelessness on the job.
“I remember one of my major challenges was not to roll my eyes when they said something outrageous,” he said. “And I failed at this meeting.”
Cutbacks in Training, Inspections
Years ago, railroads required at least six months of training to become a conductor. Now, some railroads have shortened that education to as little as six weeks, said Jared Cassity, a national official with the SMART Transportation Division union.
“Railroads have gutted training programs,” he said.
Industry job cuts have also drained the railroads of experienced crews, Cassity said, leaving newer employees with less support.
The union wrote a letter to Norfolk Southern last year warning that its truncated conductor training could have catastrophic impacts on employee safety.
“Lo and behold, it wasn’t two weeks later, the first recently promoted conductor lost an arm,” Cassity said. “And the very next week, another one suffered an amputation as well.”
In a letter to Norfolk Southern, the FRA cited “serious concerns” about the employee accidents and the company’s training programs. Officials told The Star their investigation into the issue is ongoing.
Norfolk Southern did not answer questions about its training programs but provided company literature showing overall employee accidents have declined in recent years.
At BNSF’s Argentine Yard in Kansas City, Kansas, employees say management has cut back on inspections and routine maintenance. That yard’s diesel shop, visible from U.S. 69, is where locomotives are sent for repairs and preventative maintenance.
One electrician in the shop said inspections that previously checked 100 items on the locomotive have been cut by half. Many engines only get a quick oil change, brake check and more coolant before being pushed out of the shop.
“But that’s about it. So about the basic, basic, basic minimum,” said the worker who asked not to be named for fear of retaliation. “You have seriously dangerous locomotives operating in the system. Seriously dangerous. And the railroad doesn’t care.”
In his 12 years working in the diesel shop at Union Pacific’s Neff Yard in Kansas City, machinist Aaron Dixon said he faced constant pressure to get locomotives back on the road, regardless of what work needed to be done.
“There was just a whole lack of maintenance. They never wanted to fix anything,” he said.
Dixon said employees regularly contacted the FRA about locomotives that did not meet federal safety regulations, to no avail.
“They are stretched so thin and just don’t care,” he said. “It got to be a helpless situation.”
Dixon left the railroad in 2019 and found another job with better hours and pay.
“They don’t want you looking at stuff,” he said. “They don’t want you finding problems because it slows down the trains.”
In a statement, BNSF told The Star that it regularly inspects locomotives, tracks and other equipment as well as deploys numerous technologies that survey the state of bridges, rail cars and rail track. The railroad, owned by Warren Buffett’s Berkshire Hathaway, said it spent more than $16 billion to maintain and expand its network between 2017 and 2021.
“These comprehensive inspections meet all federal requirements, and we are committed to timely maintenance, repair and replacement whenever issues or potential issues are detected,” the company said.
Out on the rails, Vic Quintana sees similar dynamics. He fixes broken rails for a railroad contractor in Kansas City. But cuts in rail inspections and decreased staffing at the railroads have led to more problems in the field, he said.
“They’re rushed. So they skip a lot of stuff,” he said.
A BNSF engineer based in Kansas City said he’s taken locomotives and cars out on the road after shop employees have reported problems. In the yard, he said, car men often have as little as 30 seconds to inspect a car — not nearly enough time to check every wheel and the braking systems.
“It’s beyond me, it’s beyond my control,” said the engineer. “All I do is smile and nod and hope I don’t derail. Or at least not derail in somebody’s town.”
‘It Boggles the Mind’
Years after their son died in an Iowa crash, John and Ramona Coffey watched a 60 Minutes investigation that revealed how far behind American railroads were in implementing lifesaving — and federally mandated — technology that could automatically prevent trains from traveling over misaligned switches.
“Ramona and I watched that and thought to ourselves, if these people had done what was required by the law, Andrew would still be sitting here,” Coffey said.
It was just after 2 a.m. on July 14, 2009, that a Dakota, Minnesota & Eastern Railroad train was heading south in Bettendorf, Iowa. The train was meant to continue on the main line track, but an open hand switch unexpectedly pushed its course into the rear end of 19 rail cars parked in a local yard.
Though the train was only traveling 25 miles an hour, the impact crushed the locomotive, killing both the conductor, the Coffeys’ son, Andrew Reed, and the engineer.
The National Transportation Safety Board blamed the accident on human error — another railroad worker failed to manually move the switch back. And with no signals in that area, the engineer had no way to know the switch was thrown.
Just four years before, after a separate crash, the NTSB had implored the Federal Railroad Administration to require slower train speeds in areas not protected by signals or indicator lights that allow crews to stop before hitting a misaligned switch. The FRA refused to adopt such a standard, writing that it was “impractical and contrary to safety.”
“The Safety Board is concerned that the FRA has not fully acknowledged there is a problem that needs to be addressed, nor has it offered an alternate course of action,” the NTSB wrote in 2006.
A top FRA official told The Star that the agency doesn’t disregard the safety board’s recommendations. But the FRA must take into account the time, cost and practicality of the NTSB’s guidance. Often, the safety board pushes the agency to create new rules, but that process can take years.
“We try to work with the NTSB and come up with ways to meet the intent of the recommendation without meeting the letter,” said Alexy, the agency’s chief safety officer.
But the Iowa crash left Reed’s family with more questions than answers.
“It’s been very hard for us to understand why Andrew’s gone,” said his stepfather John Coffey.
Such stories come as no surprise to St. Louis attorney Steve Groves, who represents injured railroad workers.
“I’m not suggesting to you that I think the railroads want to get people hurt,” he said. “But what they are out to do is make money hand over fist. And that’s what they have been doing.”
The cases that come across Groves’ desk are “almost 100 percent avoidable,” he said. “It’s extraordinarily rare that something happens that’s not avoidable.”
Across the country, railroad injuries and deaths are frequently attributed to simple causes.
Take the case of Buddy Strieker, a BNSF conductor working in Louisiana, Missouri, who in April 2021 was killed by a slow moving train serving Dyno Nobel, a maker of chemicals, as he walked along a narrow walkway.
Strieker, who had more than 20 years of experience, died of blunt force trauma after the train severed his spine and broke his ribs.
The National Transportation Safety Board found the narrow rocky walkway near the train afforded only 21 inches for conductors like Strieker. The gravel walkway gave way to a rocky, steep drop off.
The FRA has no regulations regarding the construction of walkways for employees. But the NTSB found that the narrow path did not meet Missouri code regulations. The company quickly expanded the gravel walkway along its tracks.
Outside of Chicago, Groves represented BNSF conductor Scott Edlin, who injured his left leg when getting off a train that stopped outside of a congested yard. Witnesses testified that they had reported the dangerous terrain to the company previously.
“It’s basically stepping on big marbles,” Groves said.
Most employee injury lawsuits are settled in private, but Edlin’s case went to trial. The railroad argued that the injury was his own fault and that Edlin should have inspected the area before getting off the train, should have used a light and that his actions violated numerous workplace rules.
The cost of the litigation far eclipsed the cost of the fix.
New stairs in that location were estimated to cost between $8,000 and $10,000, Groves said. That would be considered a bargain compared to the cost of the litigation, which included 17 depositions, the hiring of expert witnesses and hundreds of billable legal hours.
“It was several hundred grand,” Groves said. “It boggles the mind.”
A Cook County jury ordered BNSF to pay Edlin $865,500 in damages.
After the accident, BNSF cleaned up vegetation near the track and also built stairs to allow crews to navigate the steep slope in that area, Edlin’s lawsuit said. But during trial, Groves, said, the railroad maintained that it was under no obligation to do so.
“The defense was, ‘we absolutely did not need to put in a landing pad or stairs,’” Groves said, “which is ironic because afterwards they actually did.”
©2022 The Kansas City Star. Distributed by Tribune Content Agency, LLC.
