[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]


 
THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE 
                     SAFETY OF AMERICA'S RAILROADS

=======================================================================

                                (110-84)

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               ----------                              

                            OCTOBER 25, 2007

                               ----------                              

                       Printed for the use of the
             Committee on Transportation and Infrastructure

THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE 
                     SAFETY OF AMERICA'S RAILROADS

THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE 
                     SAFETY OF AMERICA'S RAILROADS

THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE 
                     SAFETY OF AMERICA'S RAILROADS

THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE 
                     SAFETY OF AMERICA'S RAILROADS

THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE 
                     SAFETY OF AMERICA'S RAILROADS

THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE 
                     SAFETY OF AMERICA'S RAILROADS




THE IMPACT OF RAILROAD INJURY, ACCIDENT, AND DISCIPLINE POLICIES ON THE 
                     SAFETY OF AMERICA'S RAILROADS

=======================================================================

                                (110-84)

                                HEARING

                               BEFORE THE

                              COMMITTEE ON
                   TRANSPORTATION AND INFRASTRUCTURE
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED TENTH CONGRESS

                             FIRST SESSION

                               __________

                            OCTOBER 25, 2007

                               __________


                       Printed for the use of the
             Committee on Transportation and Infrastructure

                    U.S. GOVERNMENT PRINTING OFFICE
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             COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

                 JAMES L. OBERSTAR, Minnesota, Chairman

NICK J. RAHALL, II, West Virginia,   JOHN L. MICA, Florida
Vice Chair                           DON YOUNG, Alaska
PETER A. DeFAZIO, Oregon             THOMAS E. PETRI, Wisconsin
JERRY F. COSTELLO, Illinois          HOWARD COBLE, North Carolina
ELEANOR HOLMES NORTON, District of   JOHN J. DUNCAN, Jr., Tennessee
Columbia                             WAYNE T. GILCHREST, Maryland
JERROLD NADLER, New York             VERNON J. EHLERS, Michigan
CORRINE BROWN, Florida               STEVEN C. LaTOURETTE, Ohio
BOB FILNER, California               RICHARD H. BAKER, Louisiana
EDDIE BERNICE JOHNSON, Texas         FRANK A. LoBIONDO, New Jersey
GENE TAYLOR, Mississippi             JERRY MORAN, Kansas
ELIJAH E. CUMMINGS, Maryland         GARY G. MILLER, California
ELLEN O. TAUSCHER, California        ROBIN HAYES, North Carolina
LEONARD L. BOSWELL, Iowa             HENRY E. BROWN, Jr., South 
TIM HOLDEN, Pennsylvania             Carolina
BRIAN BAIRD, Washington              TIMOTHY V. JOHNSON, Illinois
RICK LARSEN, Washington              TODD RUSSELL PLATTS, Pennsylvania
MICHAEL E. CAPUANO, Massachusetts    SAM GRAVES, Missouri
JULIA CARSON, Indiana                BILL SHUSTER, Pennsylvania
TIMOTHY H. BISHOP, New York          JOHN BOOZMAN, Arkansas
MICHAEL H. MICHAUD, Maine            SHELLEY MOORE CAPITO, West 
BRIAN HIGGINS, New York              Virginia
RUSS CARNAHAN, Missouri              JIM GERLACH, Pennsylvania
JOHN T. SALAZAR, Colorado            MARIO DIAZ-BALART, Florida
GRACE F. NAPOLITANO, California      CHARLES W. DENT, Pennsylvania
DANIEL LIPINSKI, Illinois            TED POE, Texas
DORIS O. MATSUI, California          DAVID G. REICHERT, Washington
NICK LAMPSON, Texas                  CONNIE MACK, Florida
ZACHARY T. SPACE, Ohio               JOHN R. `RANDY' KUHL, Jr., New 
MAZIE K. HIRONO, Hawaii              York
BRUCE L. BRALEY, Iowa                LYNN A WESTMORELAND, Georgia
JASON ALTMIRE, Pennsylvania          CHARLES W. BOUSTANY, Jr., 
TIMOTHY J. WALZ, Minnesota           Louisiana
HEATH SHULER, North Carolina         JEAN SCHMIDT, Ohio
MICHAEL A. ACURI, New York           CANDICE S. MILLER, Michigan
HARRY E. MITCHELL, Arizona           THELMA D. DRAKE, Virginia
CHRISTOPHER P. CARNEY, Pennsylvania  MARY FALLIN, Oklahoma
JOHN J. HALL, New York               VERN BUCHANAN, Florida
STEVE KAGEN, Wisconsin
STEVE COHEN, Tennessee
JERRY McNERNEY, California
LAURA A. RICHARDSON, California

                                  (ii)

                                CONTENTS

                                                                   Page

Summary of Subject Matter........................................     v
Total Accidents at a Glance, chart prepared by the Committee.....   xvi

                               TESTIMONY

Ackermans, Faye, General Manager, Corporate Safety and Regulatory 
  Affairs, Canadian Pacific Railway..............................    70
Boardman, Hon. Joseph H., Administrator, Federal Railroad 
  Administration, Washington, D.C................................     7
Brown, David, Vice President and Chief Transportation Officer, 
  CSX Corporation................................................    70
Brunkenhoefer, James M., National Legislative Director, United 
  Transportation Union...........................................    38
Cook, David, Former CSX Locomotive Engineer......................    38
Ehlenfeldt, Charles R., Former BNSF Conductor....................    38
Grimaila, Robert, Senior AVP, Safety, Environment and Security 
  and Chief Safety Officer, Union Pacific Corporation............    70
Hamberger, Ed, President, American Association of Railroads......    70
Haskin, Gregory, Former Union Pacific Conductor..................    38
Joyce, Sherman, President, American Tort Reform Association......    70
Jungbauer, William G., President, Yaeger Jungbauer and Barczak, 
  PLC, Minneapolis, Minnesota....................................    38
Knisely, Timothy, Former Norfolk Southern Conductor..............    38
Schulze, Mark, Vice President of Safety, Training and Ops 
  Support, Burlington Northern Santa Fe Corporation..............    70
Tolman, John, Vice President & National Legislative 
  Representative, Brotherhood of Locomotive Engineers and 
  Trainmen, International Brotherhood of Teamsters...............    38
Wehrmeister, C.J., Vice President, Safety and Environment, 
  Norfolk Southern Corporation...................................    70

          PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS

Altmire, Hon. Jason, of Pennsylvania.............................   100
Costello, Hon. Jerry F., of Illinois.............................   101
Mitchell, Hon. Harry E., of Arizona..............................   103
Oberstar, Hon. James L., of Minnesota............................   107

               PREPARED STATEMENTS SUBMITTED BY WITNESSES

Ackermans, Faye..................................................   113
Boardman, Joseph H...............................................   139
Brown, David.....................................................   160
Brunkenhoefer, James.............................................   179
Cook, David F....................................................   188
Ehlenfeldt, Charles R............................................   200
Grimaila, Robert M...............................................   223
Hamberger, Edward R..............................................   238
Haskin, Gregory..................................................   254
Joyce, Sherman...................................................   259
Jungbauer, William G.............................................   271
Knisely, Timothy.................................................   680
Schulze, Mark....................................................   693
Tolman, John P...................................................   710
Wehrmeister, Charles J...........................................   726

                       SUBMISSIONS FOR THE RECORD

Ackermans, Faye, General Manager, Corporate Safety and Regulatory 
  Affairs, Canadian Pacific Railway:

  Response to request for information from Rep. Brown of Florida.    95
  Responses to questions from the Committee......................   128
Boardman, Hon. Joseph H., Administrator, Federal Railroad 
  Administration, Washington, D.C.:

  Response to question from Rep. Petri...........................    12
  Response to request for information from Rep. Oberstar.........    16
  Response to question from Rep. Brown of Florida................    19
  Response to question from Rep. Napolitano......................    21
  Response to question from Rep. Napolitano......................    23
  Response to question from Rep. Napolitano......................    26
  Response to question from Rep. Napolitano......................    29
  CSX Transportation Harassment and Intimidation Investigation, 
    draft, Federal Railroad Administration.......................   154
Brown, David, Vice President and Chief Transportation Officer, 
  CSX Corporation, responses to questions from the Committee.....   172
Brunkenhoefer, James M., National Legislative Director, United 
  Transportation Union, responses to questions from the Committee   185
Cook, David, Former CSX Locomotive Engineer, responses to 
  questions from the Committee...................................   192
Ehlenfeldt, Charles R., Former BNSF Conductor, responses to 
  questions from the Committee...................................   218
Grimaila, Robert, Senior AVP, Safety, Environment and Security 
  and Chief Safety Officer, Union Pacific Corporation, responses 
  to questions from the Committee................................   229
Hamberger, Ed, President, American Association of Railroads, 
  responses to questions from the Committee......................   247
Joyce, Sherman, President, American Tort Reform Association, 
  response to question from the Committee........................   266
Jungbauer, William G., President, Yaeger Jungbauer and Barczak, 
  PLC, Minneapolis, Minnesota:

  responses to questions from the Committee......................   563
  Federal Employers' Liability Act: Issues Associated with 
    Changing How Railroad Work-Related Injuries are Compensated, 
    Report to the Chairwoman, Subcommittee on Railroads, 
    Committee on Transportation and Infrastructure, House of 
    Representatives, United States General Accounting Office.....   575
  Jerry J. Phillips, An Evaluation of the Federal Employers' 
    Liability Act, 25 San Diego L. Rev. 49 (1988)................   651
  Jerry J. Phillips, Symposium: Future Prospects for Compensation 
    Systems, 52 Md. L. Rev. 1063 (1993)..........................   665
  Letter to Rep. Oberstar........................................   672
  Supplemental statement.........................................   674
Knisely, Timothy, Former Norfolk Southern Conductor, responses to 
  questions from the Committee...................................   685
Schulze, Mark, Vice President of Safety, Training and Ops 
  Support, Burlington Northern Santa Fe Corporation, responses to 
  questions from the Committee...................................   703
Tolman, John, Vice President & National Legislative 
  Representative, Brotherhood of Locomotive Engineers and 
  Trainmen, International Brotherhood of Teamsters, responses to 
  questions from the Committee...................................   716
Wehrmeister, C.J., Vice President, Safety and Environment, 
  Norfolk Southern Corporation, responses to questions from the 
  Committee......................................................   750

                        ADDITIONS TO THE RECORD

Grant L. Becker, letter to the Committee.........................   764
Chris Belanger, BNSF Railroad Engineer, letter to the Committee..   771
State of Minnesota, Office of the Attorney General, Lori Swanson, 
  Attorney General, letter to Rep. Oberstar......................   773
Utah Legislative Board of the Brotherhood of Locomotive Engineers 
  & Trainmen, Jeff Worthington, Chairman, letter to the BLET, EEO 
  Department.....................................................   775

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OVERSIGHT AND INVESTIGATIONS HEARING ON THE IMPACT OF RAILROAD INJURY, 
 ACCIDENT, AND DISCIPLINE POLICIES ON THE SAFETY OF AMERICA'S RAILROADS

                              ----------                              


                       Thursday, October 25, 2007

                   House of Representatives
    Committee on Transportation and Infrastructure,
                                                    Washington, DC.
    The Committee met, pursuant to call, at 10:05 a.m., in Room 
2167, Rayburn House Office Building, the Honorable James 
Oberstar [Chairman of the Full Committee] presiding.
    Mr. Oberstar. Good morning. The Committee on Transportation 
and Infrastructure will come to order. Apologies from the Chair 
for being delayed. Unfortunately, people just stop in to a 
Member's office, and you can't turn them away.
    This morning, we gather for a very important hearing, a 
very critical examination of rail safety, and we do so a week 
after the House passed, by a vote of 377 to 38, the Federal 
Rail Safety Improvement Act, another historic act from this 
Committee with enormous, as the vote shows, bipartisan support 
to enhance safety in the rail sector, increase the number of 
rail safety inspectors and enforcement personnel.
    It has been a long time in coming. Only once in the last 
100 years has there been a significant amendment to and update 
of the Rail Safety Act of 1907.
    Well, the issue we consider today is that of railroad 
injury, accident, and discipline policies. The accuracy of the 
databases for rail safety has been criticized by a number of 
government reports over the years. Reports have documented a 
long history of under-reporting of accidents, under-reporting 
incidents, of noncompliance with Federal regulations; and 
under-reporting of rail injuries is significant because 
employees frequently report that harassment of those who do 
report incidents, being hurt on the job, is a common practice 
in the rail sector.
    One of the reasons for this pressure is the 1908 law 
itself, the Federal Employers Liability Act, and under-
reporting or withholding of reporting makes accident statistics 
look better than they really are, but it denies the public, it 
denies regulators, and it denies the Congress a full 
understanding of the nature and extent of safety problems in 
the rail industry, and that is vital to improving safety. And 
it is not right for people on the job to be told you shouldn't 
report this injury; maybe you can just sit here in the health 
room, maybe you just need an aspirin or maybe you just need a 
little time, and don't put this on the report because then it 
becomes an accident, and then that looks bad for the railroad. 
Most often, these incidents happen at inconvenient times: late 
hours, during bad weather.
    I recall my own experience working in the mine, sampling 
ore in the night shift on top of a rail car. We had to 
crisscross the car, take little samples in an X, put them in a 
canvass bag, throw the bag over, and then jump to the next rail 
car and go on and sample ore on it, and then send that ore 
sample to the lab so it could be analyzed before the train was 
dispatched to Lake Superior for shipping.
    And it happened one of those nights, night shift, about 1 
a.m., 2 a.m. It was raining, and as I was making the move from 
one car to the next, the ore slipped out from under me and I 
fell 15 feet and landed right between two ties; smacked my 
head. Fortunately, I missed a rock that was right nearby that 
would have gone into my temple. Some of my political opponents 
of the years thought that probably would have been a good idea.
    But I sat there in the dry, as we call it, for quite some 
time. There wasn't a car to take anybody injured to treatment, 
to the hospital, to go to town. Eventually, a first aid person 
came and looked me over and said, well, tomorrow morning you go 
check in at the hospital. It was reported under the mining laws 
as an on the job injury.
    I grew up in a mining family. My father was chairman of the 
safety committee in the underground mine. Safety, to me, was 
something that was an everyday matter; required everyday 
vigilance. I never forget my father coming home midday, white 
as a sheet. The mine collapsed; the drift that he was working 
in collapsed. He had thrown his two coworkers out the mouth of 
the drift when he heard the timbers cracking, and the ore 
stopped just at his shoulders. It took four hours to dig him 
out. But for weeks, as chair of the safety committee of the 
underground mine, he had complained to the company that they 
were using green wood timbers, they weren't putting seasoned 
wood in the drifts to hold up the ceiling of the drift.
    That was just one incident, but when you are the victim or 
when you see the victims, it has a different effect, a lasting 
effect.
    So when I began hearing reports, which was a few years ago, 
about these matters, I said this is serious stuff: 
intimidation, threats on the job; some not so subtle, some 
perhaps subtle. So I directed the Oversight and Investigation 
Staff to get out in the field and go out and talk about injury 
accident reporting. Since then, we have had a floodgate of e-
mails of alleged harassment of railroad employees. Some are 
cases where employees were cautioned by managers not to file an 
injury report in order to avoid future problems or disciplinary 
action. We have 200 individual cases with documentation of 
alleged management intimidation following injury reports, and 
they have been provided to the Committee.
    We have reviewed the most recent FRA comprehensive accident 
incident reporting and recording audits. Those audits, 
conducted at major railroads. FRA found 352 violations of 
Federal law for under-reporting in the largest category: 
failure to report employee injuries. That is only the number of 
under-reported injury events that FRA was able to identify. 
Maybe just the tip of the iceberg.
    The associate administrator of FRA for safety said she 
believed that supervisory pressure on employees to not report 
injuries is a significant issue. When the agency receives 
complaints, FRA does investigate reports. But the associate 
administrator maintained that FRA simply does not have the 
resources, meaning people, to investigate the extent of the 
harassment issue. If our legislation, H.R. 2095, is enacted, we 
will see an increase in personnel; FRA will have the staffing 
they need to follow up.
    Many railroads have management programs and policies that 
may give the benefit of the doubt and unintentionally inhibit 
or intimidate employees into not reporting injuries on the job. 
The result is many injury accidents may never be reported. We 
have seen a number of cases--I have looked at the docket 
myself--where railroad managers sometimes bring pressure on 
employees, one, counseling don't file that injury report, it is 
in your best interest not to do this; finding, secondly, 
employees exclusively at fault for their injuries: you are the 
cause, you are the fault of your own problem; and, third, 
subjecting employees who report an injury accident to increased 
monitoring and performance testing on the job. I know how 
intimidating that can be in the mines, in the shops. I have 
seen it. And we can't allow this to continue to happen.
    We have to find a way to have a more open, non-punitive 
environment for reporting of rail incidents and accidents, and 
an environment where railroad workers feel free to come forward 
and report. That will be a subject of inquiry in the course of 
this hearing today. We are going to hear some very startling 
and dismaying testimony, but it has to be laid out in the 
public, and then we have to move ahead to address it in a 
constructive manner.
    With that, I withhold further comment and yield to the 
distinguished gentleman from Pennsylvania, Mr. Shuster, our 
Ranking Member.
    Mr. Shuster. Thank you, Mr. Chairman. I first want to start 
off by congratulating you and Chairwoman Brown for the passage 
of the Rail Safety Act, and thank you for working with us. We 
didn't get everything we wanted in there, but we certainly know 
we have another opportunity. I understand that the Senate is 
trying to work through a rail safety bill, and hopefully we 
will take a conference----
    Mr. Oberstar. If the gentleman would yield.
    Mr. Shuster. Certainly.
    Mr. Oberstar. I want to express my appreciation to the 
gentleman for his thoughtful manner in approaching this issue. 
We had many, many hours of discussion, and constructive 
discussion, and the gentleman came forward with thoughtful 
recommendations for changes in the legislation, and the end 
result was, I think, a very good bipartisan product.
    Mr. Shuster. Thank you very much. And, again, 
congratulations, we look forward to seeing that Senate bill 
come forward and moving through the process.
    Today's oversight hearing on rail safety is a subject that 
has been examined many times in the past couple of years by 
this Congress and the last Congress, and each time we found 
that our rail safety programs have made significant positive 
impact and progress. The railroads have a large presence in my 
home State of Pennsylvania and safety is a top priority for me. 
We are coming off a record year for safety in the rail 
industry, and I certainly, every chance I get, like to point 
out, especially in a public forum, some of those statistics.
    In 1996 there were 33 railroad employees killed. In 2006, 
that is down to 16; 16 too many, but still is an improvement, 
significant improvement. In 1996, 25 employee deaths were 
involved in train accidents; in 2006 there were only 6. 
Passenger trains carried 397 million people in 1996 and 12 
passengers were killed, and in 2006 almost 550 million 
passengers and only 2 fatalities.
    I cannot say enough. In 2006, it was the best year yet, but 
there is always room for improvement and, of course, that is 
what we want to focus on today and as we move forward.
    Today's hearing will focus on allegations that railroad 
safety policies may have unintended consequences, such as 
harassment and intimidation of employees who report injuries on 
the job. Working through these issues, coming to better 
understand FELA, which, as the Chairman pointed out, was passed 
in 1908, 100 years ago, it appears to me that the FELA, Federal 
Employees Liability Act, doesn't encourage disputes being 
settled in a positive way, but, from what I can tell, it 
encourages litigation. It encourages, when there is a problem, 
both sides get attorneys and we go to war.
    And I think we need, as the Chairman pointed out, a more 
open and non-punitive process that will encourage cooperation. 
All types of businesses across this Country and across the 
world, when we are cooperating, finding problems, finding 
solutions, not sitting in a courtroom, enriching attorneys, but 
enriching the business by making it safer for employees, by 
improving the quality of the product or the quality of the 
service that we provide, I think that is what we need to focus 
on and, again, stay away from the courtroom and stay away from 
hiring attorneys that are just going to go out there and battle 
one another, instead of, as I said, sitting down the table, 
figuring out a positive solution.
    In 1997, the FRA implemented a new regulation which 
required each railroad to adopt and comply with a written 
internal control plan. This plan bans the practice of 
intimidating or harassing employees who wish to file an injury 
claim or seek medical treatment. My understanding is that the 
railroads have disciplined or even fired managers for violating 
this policy. When you have hundreds of thousands of people 
involved on both sides, I am certain situations like these 
occur, but I don't believe, from what I can see, that it is 
widespread on either side. I think people with good intentions 
are out there trying to make sure that, whether they are labor, 
whether they are management, trying to improve the safety in 
the rail system.
    Additionally, hefty fines and civil penalties are placed to 
discourage such harassment. In fact, the recently enacted 9/11 
bill imposes $250,000 in punitive damages on railroads who 
intimidate or harass injured workers. As a matter of full 
disclosure, it is important for me to point out that the 
majority staff will likely reference an FRA report today that 
is still in draft form, and it should be treated as such during 
questioning.
    Finally, I want to point out, in full disclosure, I am not 
an attorney, thank goodness. My brother is an attorney, so I 
take full liberty to bash attorneys whenever I get the 
opportunity. I feel that gives me the right, if I have a family 
member that is an attorney, which I am sure turnabout is fair 
play; I am the politician, so he can bash me from time to time.
    But I am troubled by the Committee's decision to call 
certain witnesses who have litigation pending in the courts. 
This Committee has always avoided taking an action which might 
appear to prejudice litigation, and that is exactly where we 
are heading today, I am afraid. We have two witnesses who are 
parties to pending litigation against the railroads, and 
another of our witnesses is a lawyer who is suing the 
railroads. So I would ask our Members to please keep this in 
mind when they are questioning these witnesses today.
    With that, I look forward to the testimony today and I 
thank you, Mr. Chairman, for holding this hearing.
    Mr. Oberstar. Thank you, Mr. Shuster. Your last point about 
whether it is appropriate or just raising the question about 
witnesses who are involved in litigation, it is not at all a 
common fact, regular practice of the Committee over the many 
years that we have conducted investigations and oversight. One 
of my very first hearings as Chair of the Investigations and 
Oversight Subcommittee was on Galaxy Airlines crash, a fatal 
crash in Reno, Nevada, in which 93 people from the State of 
Minnesota were killed; one survivor. The matter was under 
investigation, there were lawsuits pending. We held a hearing 
on the safety issues, the safety implications of that crash. We 
held hearings on TWA 800 while lawsuits were pending and while 
the NTSB investigation was underway. Careful to separate those 
matters that were under litigation and investigation, and make 
sure that witnesses were not pressed to answer questions that 
were the subject of litigation. We held hearings on the Value 
Jet accident. In fact, that was a Full Committee hearing in 
which we had witnesses shielded from public view.
    So, we are being very careful on the line dividing 
courtroom testimony from a matter that is appropriately the 
subject of safety inquiry.
    We do have a vote in progress. We have probably 5 minutes 
left.
    Ms. Brown, the Chair of our Rail Subcommittee and a 
vigorous advocate for rail safety and for railroads in general 
and rail workers.
    Ms. Brown. Thank you, Mr. Oberstar, for your leadership on 
this Committee and also on improving safety in all 
transportation sectors.
    I want to thank you, Mr. Shuster, for your leadership, 
along with Mr. Mica, in passing the railroad safety bill.
    The Railroad Subcommittee has concentrated on safety in the 
rail industry, and that includes the safety and well being of 
railroad employees. The railroad safety bill will address many 
of the issues that we are going to discuss today. The bill that 
passed overwhelming the House last week had seven provisions 
that would improve the reporting of railroad accidents: it 
would require the Federal Railroad Safety Administration to 
conduct audits of railroads to ensure that they are fully 
reporting all accidents and incidents to the national accident 
database; it increased the maximum penalty for failing to 
report an accident; it makes it unlawful for anyone to 
knowingly interfere with or obstruct an investigation by the 
Secretary of Transportation or the National Transportation 
Safety Board; it also doubles the number of Federal safety 
inspectors who monitor the railroad compliance with Federal 
standards.
    I have talked to CEOs and senior management of all of the 
major railroads, and I know that they do not support or condone 
employee intimidation in any form, but that message needs to be 
made clear to every employee in the company, including those in 
the field. There may also be a need to reconsider some of the 
company's programs that encourage under-reporting of accidents, 
while still ensuring that employees have the right to make sure 
that workers are following the rules and doing their job 
properly.
    We also need to consider the inherent problem that is 
caused by a faulty base compensation system and need to look at 
improving a system that now seems to pit management against 
employees. Nobody wants to see people get hurt on the job, and 
an injury should not be compounded by a hostile work 
environment.
    I look forward to hearing from today's panelists on ways 
that we can create a culture of safety in the railroad industry 
so that both the management and workers can safely handle the 
significant increased workload that is predicted for America's 
railroads.
    I yield back the balance of my time.
    Mr. Oberstar. I thank the gentlewoman for her statement.
    We have just two minutes remaining on this vote. The 
Committee will recess and reconvene as quickly as possible 
after this vote.
    [Recess.]
    Mr. Oberstar. The Committee will resume its sitting. When 
we recessed for the vote, Ms. Brown was concluding her 
statement, and the Chair recognizes the Chair of the Rail 
Subcommittee, Ms. Brown.
    Ms. Brown. Thank you, Mr. Chairman. I think I need to just 
repeat some of the things that I said to reiterate. First of 
all, I think I said that since we passed the railroad safety 
bill and it passed by a large measure and the Senate is 
beginning to work on their bill, many other problems that are 
inherent with railroad reporting and safety I think have been 
addressed in the railroad safety bill. But I think there are a 
couple of aspects of this program that I want to repeat what I 
said earlier.
    One, I talked to all of the CEOs and senior management of 
all of the major railroads, and I know that they don't support 
or condone employee intimidation in any form. But that message 
needs to be made clear to every employee in the company, and, 
in particular, including those that work in the field.
    We also need to consider some companies' programs that 
encourage under-reporting of accidents, while still ensuring 
that employees have the right to make sure that workers are 
following the rules and doing their jobs properly.
    We also need to consider the inherent problem that is 
caused by a faulty base compensation system and need to look at 
improving a system that now seems to pit management against 
employees, and I say may need to look at.
    No one wants to see people get hurt on the job, and 
injuries shouldn't be compounded by a hostile work environment. 
I look forward to the hearing today and the panelists, and I 
have questions for all of them, that we can create a culture of 
safety in the railroad industry so that both the management and 
workers can safely handle the significant increased workload 
that is predicted for American railroads.
    And I yield back the balance of my time.
    Mr. Oberstar. Mr. McNerney?
    Mr. McNerney. Thank you, Mr. Chairman. First of all, I 
would like to say that the railroad business is in my family; 
my grandfather was a railroad engineer, I have cousins that 
work in the industry. So I am keenly interested in the outcome 
of this hearing and seeing that railroad employees have a 
culture of safety. It is true that every side should be aligned 
on the safety issue. It is in everyone's interest that safety 
be maintained and that injuries be minimized. So we can look at 
this objectively and find a way forward.
    I look forward to the testimony and thank the Chairman for 
his leadership on this issue.
    Mr. Oberstar. I thank the gentleman and appreciate his 
personal connection to the subject matter; it always adds a 
dimension of significance and heavy weight. Thank you.
    Does the gentleman from Wisconsin have a comment to make?
    I would ask unanimous consent to include in the record, at 
the conclusion of my opening statement, the letter from the 
Attorney General of the State of Minnesota, Lori Swanson. 
Without objection, so ordered.
    She concludes: ``All can agree that railroads should not 
deny prompt medical attention to injured rail workers and 
should not discipline or otherwise harass and intimidate them. 
While it is my strong belief that our state law is not 
preempted, I nevertheless urge the Congress to act to ensure 
that rail workers throughout the nation, not just in Minnesota, 
are provided prompt medical care and not subjected to 
harassment and intimidation.'' And this follows several 
paragraphs describing the State's action in the legislature 
enacting protective legislation and pursuing the matter in 
lawsuits in Federal District and Circuit Court.
    Now we will begin, as we will do with all witnesses, Mr. 
Boardman, if you would rise and raise your right hand. Do you 
solemnly swear the testimony you will give before the Committee 
will be the truth, the whole truth, and nothing but the truth, 
so help you God?
    [Witness answers in the affirmative.]
    Mr. Oberstar. Thank you. Please begin.

 TESTIMONY OF THE HONORABLE JOSEPH H. BOARDMAN, ADMINISTRATOR, 
       FEDERAL RAILROAD ADMINISTRATION, WASHINGTON, D.C.

    Mr. Boardman. Thank you, Mr. Chairman. Mr. Petri, Mr. 
McNerney, thank you, all the Members today. The FRA appreciates 
the efforts of the Committee in addressing this issue and in 
developing rail safety reauthorization proposals in H.R. 2095, 
the Federal Railroad Safety Improvement Act of 2007. I look 
forward to working with you on these proposals as the 
legislative process moves forward.
    Currently, each railroad carrier is required to file a 
monthly report with the Secretary of Transportation, under 
oath, listing all accidents and incidents resulting in injury 
or death to an individual or damage to equipment or roadbed 
arising from the carrier's operation during the month. The 
carrier is required to describe the nature, cause, and 
circumstance of each accident or incident included in the 
report.
    The Secretary's enforcement authority under the Act 
includes the power to impose civil and criminal penalties. The 
penalty for a violation ranges from $550 to $27,000. The Act 
does not address harassment or intimidation of railroad 
employees.
    Both the Accident Reports Act and the Federal Railroad 
Safety Act of 1970 confer broad powers on the Secretary of 
Transportation to implement the provisions of the Accident 
Reports Act, including the authority to issue regulations and 
investigate accidents or incidents resulting in serious injury 
to an individual or to railroad property.
    The reporting requirements of Part 225 concerning an 
employee injury are triggered generally when an event involving 
the operation of a railroad results in an employee dying, 
requiring medical treatment beyond first aid, missing at least 
one day of work, being placed on restricted work activity, 
receiving a job transfer, or losing consciousness due to the 
injury.
    The regulations also require that railroads keep records of 
so-called ``accountable injuries.'' These injuries are defined 
as any condition not otherwise reportable of a railroad worker 
which condition causes or requires a worker to be examined or 
treated by a qualified health care professional.
    FRA's current accident reporting regulations prohibit 
railroad actions calculated to discourage or prevent proper 
medical treatment or reporting of an accident/incident to FRA. 
While other actions of a railroad or railroad official may 
constitute harassment or intimidation, it is important to note 
that only actions calculated to prevent proper medical 
attention or accident reporting are violations of FRA 
regulations.
    But there are other provisions, and some of them were 
identified this morning, other legal protections. Department of 
Labor is the 900-pound gorilla on this issue, really, not the 
FRA. Discriminating against an employee for, among other 
things, notifying or attempting to notify the railroad carrier 
or FRA of a work-related personal injury or work-related 
illness of an employee is prohibited under 49 U.S.C. 20109, as 
amended, by Section 1521 of the Implementing Recommendations of 
the 9/11 Commission Act of 2007. The employee whistleblower 
rights are enforced under the procedures set forth by the 
Department of Labor, and the FRA and the Department of Labor 
have already begun the process of coordination with respect to 
the administration of this newly amended Executive Branch 
function.
    As I said earlier, the issue of harassment and intimidation 
occurs against a much broader background than the narrow scope 
within which FRA works to promote reporting of accidents and 
incidents. The DOL, and before it the Railway Labor Act Boards 
of Adjustment, works on those complex issues. Rail labor 
relationships are complex and often involve conflicts, and the 
conflicts are, for the most part, subject to the jurisdiction 
of those courts and the Labor Board Adjustment.
    In order to create a culture of risk reduction, FRA is 
working to establish programs that will encourage employees to 
fully disclose information regarding precursors to accidents or 
near accidents without fear of blame. Such programs will allow 
FRA to gain a more complete picture of how and why accidents 
occur and, thus, identify and reduce risks before accidents 
occur.
    To date, two FRA-led demonstration projects, in cooperation 
with the Union Pacific Railroad Company, have been launched in 
an effort to support a positive change in a safety culture of 
the railroad industry: the Close Call Confidential Reporting 
System (C3RS) and the Clear Signal for Action reporting system. 
The FRA will remain aggressive in its efforts to promote 
accountability and will seek to plant the seeds of cooperative 
programs that may help reduce risk, while engendering greater 
trust in the railroad industry.
    Thank you very much.
    Mr. Oberstar. Thank you very much, Mr. Boardman, and my 
appreciation to you for those initiatives that the FRA is 
undertaking. They seem to be moving in the right direction.
    You are familiar with the points system. What are your 
thoughts about the point system and risk ranking indices?
    Mr. Boardman. There are different systems among the 
railroads. I think that is what you are referring to. Or is it 
more about the----
    Mr. Oberstar. No, that is exactly right.
    Mr. Boardman. Okay. I think each railroad has the intent to 
try to figure out a way that it can provide the incentives that 
would provide a better record of safety and reward employees. 
Some of those kinds of systems that railroads put together--and 
I think they will freely admit--have unintended consequences of 
difficulty for those employees in terms of how they interpret 
and what happens to those employees as peer pressures and other 
kinds of concerns raise their head.
    Mr. Oberstar. Well, if a railroad has a ranking system and 
the employee builds up points over a period of time, eventually 
he becomes a problem employee in the mind of the railroad, and 
the point system, from what we have seen, from the documents--
and by no means are every incident reported, but a very good 
sampling of incidents--do not take into account contributing 
factors. It is a fault system. You had an accident? It is your 
fault. Now you have a choice: report it or not report it. If 
you don't report it, then you don't get points against you. 
Have you looked at this?
    Mr. Boardman. I don't understand the intricacies of what 
you are asking. I mean, I would have to look at the specifics 
of the point system that we might really be talking about here. 
I know that when you determine whether there is a fault of an 
employee or whether an accident occurred, there is no question 
that an accident occurs. Is it a fault of an employee or is it 
a system that doesn't have a fault attached to it I think is a 
common question that all operators look at.
    In other words, in my own background, not rail, as a bus 
operator and oftentimes you would have bus operations where you 
would line all the buses up at one time, and when those buses 
began to leave that location so that everybody could transfer 
at the same time, one of the most serious accidents that could 
occur is a rear bus running into a front bus, because what it 
told you immediately was the driver of the rear bus really 
wasn't cleared to go forward; no different than somebody trying 
to merge onto an expressway.
    So there was always a debate, and I think one of the 
difficulties here that we need to think about is as the 
railroads themselves try to reduce risk in their operations--
and we think that they really ought to try to reduce that risk, 
one of the severest judges that I had when I had a safety 
committee were the employees themselves, and I think that is a 
critical element of any risk program, any points program, any 
of the things that the railroads do. There has to be a 
structure to how they analyze those accidents; there have to be 
regular data reviews themselves; and there has to be that 
critical part, which is the employee input.
    Mr. Oberstar. Well, you are getting on to another issue 
that I think we need to explore in this inquiry in the course 
of this hearing, and that is individuals, individual incidents, 
and systems. Do you think there is, in the rail sector, a 
culture preoccupied with blame, with fault, and with 
individuals, rather than one that reviews the system within 
which safety should be addressed?
    Mr. Boardman. I think, today, my observation is that two or 
more conditions exist in the railroad industry: the one you 
describe, but, paradoxically, the railroads that are becoming 
more progressive and understand the need for this employee 
input are also understanding that there needs to be, first and 
foremost, a focus on the individuals, the employees, the people 
that are impacted in the accident itself, and the third parties 
that pay the price of being either evacuated from a particular 
accident location or that are impacted at a grade crossing.
    And there needs to be an unequivocal understanding in that 
company that that comes first, and then the occurrence of an 
investigation to find out what really occurred; and I think 
that does not exist in the entire railroad industry. You have 
differences among railroads, differences among managers, but, 
today, I think there are real indications--and I won't single 
any one in particular out, but one of the women you will have 
up here later I was particularly impressed with in the most 
recent review of their railroad and how they are really 
rethinking this culture of safety.
    Mr. Oberstar. You are quite right on that and I have been 
impressed with that particular railroad and their approach to 
the subject, and you touch on something that is important: the 
culture of safety. With every mode of transportation, safety 
begins in the boardroom, in the corporate boardroom. Safety is 
not the primary responsibility of the Federal Railroad 
Administration or of the FAA or the Federal Motor Carrier 
Safety Administration. Safety is the primary responsibility of 
the company itself. And the reason we have government oversight 
agencies is to keep them honest and to help employees train and 
develop their own culture of safety.
    When the Steelworkers Union was formed in 1937, one of 
their ten points was safety on the job. The conditions in the 
steel mills weren't safe.
    I see the bells have rung. We are going to have this action 
throughout the day, until final consideration of the pending 
legislation, so I will withhold further questions at this point 
and yield to Mr. Petri.
    Mr. Petri. Thank you very much, Mr. Chairman.
    Thank you for your testimony, Mr. Boardman. I wonder, based 
on your experience not only in your current job but in the 
transportation industry and in other positions, if you have any 
basis to indicate how the railroad industry stacks up with 
other modes of transportation so far as concern about safety or 
actual safety records are concerned. Obviously, they are not 
completely comparable because I guess the operating conditions 
are different between a truck or a railroad or an airplane and 
so on, but could you comment on how it stacks up with other 
transportation sectors?
    Mr. Boardman. Certainly. I think, I guess, the best way to 
say this is one of the things I get surprised about--and while 
I think this is extremely serious business that we are dealing 
with with railroads, what I find surprising sometimes is that 
there have been tremendous improvements made in rail safety, 
and the focus--we have difficulty, as an industry, getting, for 
example, the highway side of the House to pay attention to our 
grade crossing accidents, which result in 600 [subsequently 
corrected to 400] or so deaths a year.
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    Mr. Boardman. And part of the reason we have such 
difficulty--and, yet, that is one of our key elements of 
reducing the number of injuries--one of the difficulties we 
have is that there are over 40,000 highway deaths a year.
    So for the highway side that we work with, that particular 
mode, we are a very low ranking priority in terms of what they 
feel they need to do. And, yet, in my arguments with them to 
try to say, listen, if you took some of the resources you had 
and worked with us and this industry, what we could do and what 
would be a tremendous impact on reducing the number of these 
grade crossing accidents. It is particularly frustrating 
because of those differences in modes.
    So I am not sure I get at your question absolutely 
directly, but what I see is an industry that is willing, that 
wants to improve safety, that has demonstrated that improvement 
in safety, but that we can always do better.
    Mr. Petri. Just a second question. I know we have to go and 
vote. I guess the statistics indicate that there has been a 
reduction in accidents over the last few years in the railroad 
industry. Is that because of underreporting or is it because of 
better safety? What would be the reasons for that? What can we 
learn from that?
    Mr. Boardman. We absolutely believe it is because there is 
less accidents. We do not believe it is because of--I mean, 
what we are talking about today is employee injuries, and there 
may be some difficulties, and we have investigated and looked 
to see what the difficulties were on this underreporting, but 
when you look at the absolute number of accidents that are out 
there, they are down dramatically, and we appreciate that.
    What we are not content with is that here, a couple of 
years ago, we began to flatten out in terms of the rate of 
reduction; and the rate of accidents continues to bother us. So 
we are specifically looking at the rate of accidents at this 
point in time. It is something we really need to approach, and 
we are looking at that with a Risk Reduction Program to really 
get at that problem.
    Mr. Petri. Thank you.
    Mr. Oberstar. Mr. McNerney?
    Mr. McNerney. Thank you, Mr. Chairman.
    I was wondering about the difference in the sort of culture 
between the railroad industry and the airline industry. There 
seems to be a fairly good culture of reporting and encouraging 
people to report accidents in the airline industry, or 
incidents. Could you address that, what you think the cause of 
that difference and how we might expand that sort of culture to 
the railroad industry?
    Mr. Boardman. Congressman, I think you have hit on a key 
point, and that is we decided to do that, exactly that, with 
the Close Call Reporting mechanism we now have in place, and we 
are beginning to expand. We modeled it very similarly to what 
occurred in the aviation industry under FAA. We think the 
critical element of that is that there be a reporting system 
that allows the employee to be anonymous; that we really find 
what could have happened here when there was a close call of an 
accident. We think the FAA did the absolute right thing when 
they looked at that in their particular culture. We, right now, 
are looking at and modeling that, and have begun to do so.
    Mr. McNerney. Thank you. Do you think the difference of the 
sort of criteria between reportable and non-reportable 
incidents is any way impacting this culture or this dynamic?
    Mr. Boardman. Yes. I think there is a complexity here that 
is very difficult, and that our particular area is a very 
narrow one on harassment and intimidation, it is only: was 
there an effort to prevent the employee from making the report 
or was there a manipulation or a prevention of seeking proper 
medical care? The rest of it, that because human nature becomes 
complicated in the relationship between the employee, the 
supervisor, the people involved, and the witnesses, are other 
cases or occurrences that maybe you or I would judge as 
harassment and intimidation, but do not fall under the 
authority of the FRA. They may fall under the authority of the 
Department of Labor. So that makes it much more complex.
    Mr. Oberstar. Mr. McNerney and Ms. Richardson, we have five 
minutes to go on this vote. The majority leader has announced 
that voting will be closed at 17 minutes, so we had better 
recess now, Mr. Petri, and we will resume as soon as possible 
after conclusion of this vote.
    [Recess.]
    Mr. Oberstar. The Committee will resume its sitting.
    Mr. Boardman, do the Federal Railroad Administration 
criteria for reportable and non-reportable injuries play a role 
in the problems that we are discussing here? The definition of 
reportable and non-reportable injuries, does that play a role?
    Mr. Boardman. Well, I think, yes, it does, because I think 
our regulatory requirements are very narrow in regard to what 
harassment and intimidation would be. And just to reiterate for 
a second, it is really about preventing any report at all, 
which would be harassment and intimidation, or discouraging or 
preventing the proper treatment or a treatment at a level that 
would kick in the requirement to report. If it is a minor 
treatment, it does not require reporting, and if it is 
prescription drugs or a more serious treatment, then it does 
require reporting. So there is an element of that, yes.
    Mr. Oberstar. What should be changed?
    Mr. Boardman. Well, I think, obviously, the broad concept 
of what you talked about in terms of the culture itself 
certainly needs to be changed. We think that you have stepped 
in the right directions with adding DOL now to actually going 
in and providing some of their resources to look at this issue 
in the most recently passed bill that came from the 9/11 
Commission.
    Mr. Oberstar. Thank you.
    Mr. Boardman. We think that the paradox that I talked about 
earlier, that there is the old and there are the newer things 
or structures within the railroad themselves, and what you 
talked about earlier. You used a corporate language, I think, 
as the language, and I think I would just say to you I agree 
with that; it is the leadership first, it is the leadership 
from the top and it is all the way down.
    What we found, as our investigators get into this, is that 
when you do get up to a leadership level, there is an immediate 
fixing of the problems. Whether there is a continuation and a 
hanging in there to keep them fixed is another question. But we 
do see and are encouraged, once it gets to the right level, 
that they fix it.
    Mr. Oberstar. Thank you.
    Can you describe in layman's language the distinctions 
between FELA and worker's comp?
    Mr. Boardman. I guess, in layman's language, I was trying 
to understand it for myself in regard to that, and one of the 
things that hit me here in my whole career was that there was 
always an immediate reporting of an injury under Worker's 
Compensation; there was not any delay. And I don't remember--I 
mean, there were times when employees themselves didn't want to 
report it, didn't want to go through the paperwork, didn't want 
to do those kinds of things. I said to somebody during prep for 
this that there are injuries that--I was on a dairy farm, I 
wasn't from a mine. But I remember basically going home every 
day with something cut, bleeding, or something wrong, and it 
wasn't a reportable accident or injury on my own regard. And I 
do think you see a lot of that among employees themselves, that 
they aren't going to normally go forward with that.
    I think where it begins to get difficult is that, with 
FELA, there is a necessity on the part of the employees to go 
forward and represent themselves to get a solution to something 
that is not minor, that is not something that they wouldn't 
bother reporting. So I think the differences, at least in my 
mind, are those.
    Mr. Oberstar. More simply, could you describe FELA as 
fault-based, a fault-based system and worker's comp as 
essentially a no fault system?
    Mr. Boardman. Yes, I think that is fair.
    Mr. Oberstar. And in a fault-based structure, then, every 
injury becomes reportable.
    Mr. Boardman. Has to be proved, yes, and reportable.
    Mr. Oberstar. Can FRA make changes in that structure 
without the need of legislation?
    Mr. Boardman. I don't know the answer to that, sir, but I 
will get an answer for you.
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    Mr. Oberstar. And, by that, then my next question would be 
are you considering any such changes, and your answer would be, 
well, no, because we haven't fully considered----
    Mr. Boardman. Not that have made their way to me.
    Mr. Oberstar. Okay.
    Mrs. Capito?
    Mrs. Capito. Thank you, Mr. Chairman, I have no questions 
at this time.
    Mr. Oberstar. Thank you.
    I have other questions which I think we will submit to you 
in writing, Mr. Boardman.
    Mr. Boardman. Yes, sir.
    Mr. Oberstar. Because we are likely to have another vote in 
a few minutes, so I will hold you excused and call our next 
panel.
    Mr. Boardman. Thank you, Mr. Chairman.
    Mr. Oberstar. Thank you.
    Ms. Brown. Mr. Chairman, I do have a question for Mr. 
Boardman.
    Mr. Oberstar. Oh, certainly. Of course.
    Ms. Brown. In your opinion, is there a significant under-
reporting of rail accidents?
    Mr. Boardman. No, there isn't. We do not believe that they 
are significantly under-reporting. We believe there are 
occurrences, but with the modifier ``significant,'' no.
    Ms. Brown. What would the FRA need to more thoroughly 
investigate railroad accidents, what tools would you need?
    Mr. Boardman. We have begun to change our concept of how we 
would use tools, and we are using much more today a Risk 
Reduction Program that we would really be looking at. So what 
we really would want to see, for example, in human factor 
accidents--and I have got a rule of eight requirements, and I 
would be happy to give those to you or I can go through them 
right now. But what we are really looking at today is to try to 
find a way to reduce risk to have railroads themselves look at 
their hazards and then make decisions on mitigating those kinds 
of things.
    Ms. Brown. You indicated that a lot of the intimidation 
kind of, and I guess civil rights kind of violations, came 
under the Department of Labor, and it seems to me, under this 
particular Administration, Department of Labor is kind of 
weakening. And I know you can't respond to that----
    Mr. Boardman. Thank you.
    Ms. Brown.--but how can we improve the system, then?
    Mr. Boardman. I think what we are doing, Congresswoman,--
and I think that you have worked with us very well on this with 
your Committee and your leadership and your ranking in the 
past--is that these kinds of things that we are looking at 
today to reduce risk, to have our railroads more involved in 
the RSAC process, for example, and the labor unions, we are 
finding real success in those areas. This is not an area that 
we have particularly put into that process, and I am not even 
really considering that at this point in time, but we are 
making the kinds of improvements I think that are driving down 
the number of accidents and trying to get out and make sure we 
investigate the ones that are under our national inspection 
program, that we begin to look at where we would use or get the 
most bang for our buck in the process.
    Ms. Brown. My last question. I guess you have taken a look 
at the safety bill. Do you see provisions in there that would 
strengthen how we investigate accidents?
    Mr. Boardman. Well, in this particular area I see, in 
particular, Section 506, which is one that addresses this very 
directly, and, yes, that would help.
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    [GRAPHIC] [TIFF OMITTED] T8568.019
    
    Ms. Brown. Thank you, Mr. Chairman.
    Mr. Oberstar. I apologize to the gentlewoman. I lost track 
of who was where with all these votes.
    Ms. Brown. I know. Thank you.
    Mr. Oberstar. Mrs. Napolitano.
    Mrs. Napolitano. Thank you, Mr. Chairman. I am sorry I kind 
of missed a little bit of the ongoing statements, but I have a 
question in regard to what role the inspectors play in 
assisting the FRA in collecting and categorizing the incident 
and accident data. And then do the States all receive all of 
the same incident reports as reported to the FRA?
    Mr. Boardman. In the State that the accident occurs in, 
Congresswoman?
    Mrs. Napolitano. In any State.
    Mr. Boardman. Yes. As far as I know, we do. Am I right on 
that? Yes, they do. And we have our operating practices 
inspectors, for example, in this particular subject area, both 
in FRA and the States. I think there are about 90 plus or 
minus. I think there are 88, actually, for FRA and in the 
States there are another 30 folks that investigate these 
particular incidents, so they provide that data.
    Mrs. Napolitano. You are talking about incidents that 
happen outside on public-private property. What about on rail 
property?
    Mr. Boardman. Oh, I was really specifically talking about 
the harassment and intimidation subject of the hearing. In 
terms of the rail property and all of the inspectors we have 
out there, we have a little over 400 of them.
    Mrs. Napolitano. I am not asking you about the number, I am 
asking do they report to FRA----
    Mr. Boardman. Yes.
    Mrs. Napolitano.--as they report to the States. Because, in 
my State, I know the CPUC specifically told me that they were 
not getting the reports of incidents on rail property.
    Mr. Boardman. Oh. We will check that for you, 
Congresswoman.
    Mrs. Napolitano. I think they are now, after I brought it 
up on one of the Committee hearings.
    Mr. Boardman. Okay.
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    [GRAPHIC] [TIFF OMITTED] T8568.020
    
    Mrs. Napolitano. But that is why I am asking are they 
required to report all incidents, whether on their own 
property, outside of their property.
    Mr. Boardman. Yes. If it meets the criteria for reporting, 
which is either generally monetary-or injury-based, they are 
required to report.
    Mrs. Napolitano. Is there a difference between an accident 
that the railroad companies are required to report and one that 
is not required to be reported? What is the criteria 
specifically that differentiates?
    Mr. Boardman. I will respond to you in writing and give you 
a general answer and then give you----
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    [GRAPHIC] [TIFF OMITTED] T8568.022
    
    Mrs. Napolitano. Okay. I would really appreciate it. One of 
the other questions I would have, and one of those that is very 
near and dear to my heart because of what I have been through 
in my area. The appellate courts have found that the local 
safety hazards do not exist in any State because local safety 
hazards can be encompassed within Federal regulations, even if 
the Federal Government has not acted.
    Should the States be allowed to regulate the railroad 
industry when the Federal Government has not acted in order to 
protect against local safety hazards? And I find that quite 
often is the case with the cities that I represent, and I keep 
getting information that not once has any State been successful 
in getting some alleviation to the issues.
    Mr. Boardman. I think, Congresswoman, we know that this is 
a particular interest area of yours and that we are working 
with the California PUC right now to try to resolve any of 
their issues that they have.
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    [GRAPHIC] [TIFF OMITTED] T8568.024
    
    Mr. Boardman. But there is certainly a right, and I think 
your point is that even though there is a right for the locals 
if the feds have not ruled to make a rule, that in fact that 
hasn't happened. There are cases where that has happened, and 
this is a very difficult area right now, and we understand it, 
certainly the Chairman as well has brought it up with Minnesota 
in regard to the particular subject area that we are dealing 
with.
    We will continue to work with California or any other 
State, but we think it would create more difficulties by having 
50 different regulations to cover a particular area than it 
would to continue to work----
    Mrs. Napolitano. That is the argument that I heard, and I 
understand that. However, if we are still continuing to have 
States in some and those national regulators say we need some 
assistance, isn't it proper for you to be able to begin to work 
on having some relief for them?
    Mr. Boardman. I think that it is proper for us to work with 
them continually, and I think, for the most part, we resolved 
their issues, and there are some that seem to be intractable 
and that we really can't get resolved. All of us, as humans, 
don't like to be told ``no,'' in the end, that we are not going 
to do this particular part of it, but we will continue to work 
with them, ma'am.
    Mrs. Napolitano. I would appreciate it. And if you could 
send some of that information as to what you are doing, what 
outreach or what is it specifically that we may be able to 
share with some of our individuals that we work with, that 
would be very helpful, especially at the local level.
    Mr. Boardman. Yes, ma'am.
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    Mrs. Napolitano. Thank you, Mr. Chairman.
    Mr. Oberstar. Mr. Boardman, we hold you excused.
    Mr. Boardman. Thank you, sir.
    Mr. Oberstar. Thank you very much for your testimony.
    Our vote is now in progress, but I will call the next 
panel. Mr. William Jungbauer, Mr. James Brunkenhoefer, Mr. John 
Tolman, Mr. David Cook, Mr. Gregory Haskin, Mr. Timothy 
Knisely, Mr. Charles Ehlenfeldt.
    Gentlemen, please rise. Raise your right hand. Do you 
solemnly swear that the testimony you will give before this 
Committee in the matters now under consideration will be the 
truth, the whole truth, and nothing but the truth, so help you 
God?
    [Witnesses answer in the affirmative.]
    Mr. Oberstar. You are now sworn in and we will--I hate to 
do this, but I will ask Mr. Jungbauer to begin, and I will 
interrupt you at about three minutes into your testimony.

TESTIMONY OF WILLIAM G. JUNGBAUER, PRESIDENT, YAEGER JUNGBAUER 
      AND BARCZAK, PLC, MINNEAPOLIS, MINNESOTA; JAMES M. 
     BRUNKENHOEFER, NATIONAL LEGISLATIVE DIRECTOR, UNITED 
 TRANSPORTATION UNION; JOHN TOLMAN, VICE PRESIDENT & NATIONAL 
LEGISLATIVE REPRESENTATIVE, BROTHERHOOD OF LOCOMOTIVE ENGINEERS 
  AND TRAINMEN, INTERNATIONAL BROTHERHOOD OF TEAMSTERS; DAVID 
 COOK, FORMER CSX LOCOMOTIVE ENGINEER; GREGORY HASKIN, FORMER 
   UNION PACIFIC CONDUCTOR; TIMOTHY KNISELY, FORMER NORFOLK 
  SOUTHERN CONDUCTOR; AND CHARLES R. EHLENFELDT, FORMER BNSF 
                           CONDUCTOR

    Mr. Jungbauer. Thank you, Mr. Chairman. My name is Bill 
Jungbauer. I am an attorney; I am proud of it. The reason I am 
here is I want to tell this Committee and the Country about all 
of the abuses that are going on of rail carriers harassing and 
intimidating injured employees.
    The Congresswoman had asked a question a little while ago 
and, Mr. Chairman, you mentioned the Minnesota statute. The 
State of Minnesota, the State of Illinois have found, they had 
legislation passed because there was so much harassment of 
injured employees going on that they passed criminal statutes, 
criminal statutes to stop these railroads from denying injured 
people medical care.
    You know what these railroads did? They went to Federal 
court and they sued to stop the States from trying to protect 
their injured citizens. What these railroads are saying is, 
States, don't go out there, don't do anything to protect your 
citizens. And now they are coming to Congress and saying, 
Congress, don't you do anything either.
    I am here to tell you that, based on my experience in this 
Country, that railroad workers, if you go home in your 
districts, they will tell you, every one of them, that this is 
a huge problem.
    If I can get the Elmo up, please. This document I want to 
show you is an exhibit from Burlington Northern Santa Fe. I had 
to subpoena it. I had to fight for it. This is their red-green 
program. If you look at the things in the yellow, you will 
notice that for an employee they get 40 points if they have a 
reportable incident; 5 points if it is non-reportable. This is 
it in a nutshell. This is the type of programs that cause 
harassment and intimidation, because if you are a trained yard 
and engine employee, TYE employee, 47 points makes you a red 
employee.
    I have personal examples--and you are going to hear from 
one of them today--of individuals who have been fired because 
they have an accident, they get 40 points, and then a minor 
little thing comes along again, or another accident, even 
though it is not their fault. And that is the most disturbing 
thing of all. Congressman, you brought this up before, 
yourself, Mr. Chairman, that people are being punished for 
getting hurt even when it is not their fault.
    I also have for the Committee a transcript that is 
attached, it is Mr. Cloud's transcript. This is a CSX employee. 
We have tape recording, court reporter transcript of a CSX 
official saying don't file that accident report, and then 
saying we are going to go make up an accident; we are going to 
say that somebody threw a rock and hit you in the head and 
escaped. It is all in my--I have submitted it to the Committee. 
Nothing has been done.
    What makes an individual cheat like that? And what the 
Congresswoman was asking before, what is the culture? And I 
have studied this for a long time, and I believe that it is the 
management programs at these railroads that cause middle and 
lower management people to harass their employees, and that, I 
believe, is the compensation system.
    I also have attached as exhibits the fact that, in most of 
these railroads, the compensation, in part, for first-line 
supervisors and middle management is based on whether 
statistics go down or not. It doesn't matter if they try hard. 
If a defective rail car comes in from somewhere else and an 
accident happens in their territory, their family doesn't eat 
as well. That causes good people to become bad. And if you want 
to change the culture, change those programs that cause good 
people in these railroads to become bad and harass employees. 
That is what I am trying to argue for.
    Again, the Minnesota----
    Mr. Oberstar. I am going to interrupt you at this point 
because we have seven minutes remaining on this vote, and we 
will reconvene as soon as possible after the vote.
    [Recess.]
    Mr. Oberstar. The Committee will resume its sitting.
    Mr. Jungbauer, you were, I think, nearing completion of 
your statement when I interrupted you for the vote.
    Mr. Jungbauer. Okay. Shall I start again?
    Mr. Oberstar. No, you may continue at that point and 
conclude.
    Mr. Jungbauer. Thank you.
    There are three quick points I want to make. I take strong 
issue with FRA statements that this is not a problem. 
Statistics in our own office: 38 of the last 108 cases we have 
had in our office have either been not correctly filed with FRA 
or misfiled.
    Secondly, FRA fines do not work. If anyone goes--and I have 
done a Freedom of Information Act request. Fines that are 
assessed against these corporations are reduced and paid in 
pennies. Billion dollar corporations don't worry much about 
thousand dollar fines that end up being negotiated down to 
hundred dollar ultimate payments.
    And, finally, on Worker's Compensation, the problem with 
worker's compensation is it doesn't pay the injured person 
enough. A perfect example I can give you is the State of 
Arizona. I have a client who lost a foot in a switching 
accident. Under worker's comp, he would get $75,000. A foot is 
worth a lot more than that to my client.
    Thank you very much.
    Mr. Oberstar. Thank you, Mr. Jungbauer.
    Mr. Brunkenhoefer.
    Mr. Brunkenhoefer. Yes, sir. First, I want to give you a 
hypothetical story.
    Mr. Oberstar. Pull the microphone around in front of you. 
There you are. Thank you.
    Mr. Brunkenhoefer. I want to give you a hypothetical story. 
There is a couple named Jean and Jim, and they are out on their 
bicycles between a place called Beulah and Chisholm, and 
someone bumps the nice lady with a car, and Jim gets very 
concerned about her health, and the person gets out of the car 
and says before I can render you aid, we have to contact my 
insurance company, we have to fill out these forms, we have to 
have a conversation about this not being reported to the 
insurance company because my insurance rates will go up and I 
will lose my bonus.
    And before I take you for medical care, I need my 
supervisor to come over from Hibbing or Virginia, and when you 
are through being treated, we are going to require you to go to 
a specialist in Duluth or Superior during the week, and the 
lady says, well, I can't do that, I don't have anybody except 
my son, who works for a railroad or works for someone, and he 
will have to take off work or my husband will have to take off 
work to transport me back and forth. And they tell you that is 
your problem, that you are going to have to handle it yourself.
    Now, I believe, in the State of Minnesota, when you do not 
render aid to someone who is injured, it is a felony. If you do 
it on the railroad, you get a bonus. That is the culture.
    Why are we here today? Because of a culture that says 
because I don't like FELA, it is my right, because there is a 
law I don't like, I have a right to torment, torture, commit 
fraud, abuse, and the list goes on. So the way I am going to do 
this is I am going to keep seeing people suffering; I am going 
to keep insisting that they can't report an injury; I am going 
to keep insisting they can't take medication; I am going to 
keep insisting that I have this right, because this is my way 
of protesting a law.
    Now, I have done some protesting in my life, but I have 
never made anybody physically suffer because I didn't like it. 
That is not the way we are in the United States. Everybody here 
that is going to testify later is going to talk about these 
beautiful numbers we have. Well, I think we have established 
that it is garbage in and garbage out; that the numbers they 
are basing their testimony on we have already shown that they 
are not reporting what is going on, so how can you put faith in 
numbers?
    The front of this testimony here says that we are going to 
have a hearing about injuries, harassment, intimidation. I 
didn't know that you could just come up here and change the 
subject to whatever you wanted to. So they are going to talk 
about FELA. They don't want to talk about their culture that 
says it is okay. And something is very wrong, and I have read 
the testimony, and all I see is they want to defend the system 
the way it is now.
    We are all doing a wonderful job on the management side and 
we want to keep doing it just like it is doing, because it 
works so well. They want to talk about FELA. I think Mr. 
Jungbauer and I can come to agreement. We will talk about it as 
long as treble damages are on the table. I mean, this game 
about we are always going to talk about FELA, I don't think 
this Congress is going to repeal FELA, and I don't think, if I 
am reading the numbers right, the next Congress is going to be 
interested in talking about it. And they are liable to talk 
themselves into a bigger problem than what they have.
    Let's talk about harassment and intimidation, and people 
not getting medical care. Let's talk about families. Let's talk 
about people that hide injuries, find out two weeks later they 
are hurt and then they suffer the rest of their lives, the rest 
of their lives with pain because some manager wants his damn 
bonus. And this stuff about transferring them or docking them 
on pay or firing them, it is not working.
    This hearing is about what is not working. People are hurt, 
people are suffering, but, yet, I haven't seen anything that 
says here is how we solve this problem. So the only concept I 
have been able to come up with, Mr. Chairman, is that we make 
it more punitive, because I haven't heard anything that says 
that anything else works. It is like we have got a bad culture 
out there and we have got a renegade official, and that 
renegade official is not going to make his safety numbers, so 
we are going to out here and we are going to tell the injured 
worker.
    Now, I will agree with the railroads, we are not having the 
people who lose their legs or dying; they are getting reported. 
But what we are not getting reported is the small injuries that 
we could all work on and come to a solution.
    Now, we hear all about this terrible program that we can't 
talk about called FELA. Eighty percent of all the people who 
are injured on the railroads settle between the employee and 
the employer without the help of any lawyer. Eighty percent. 
They want to tell you that every injury has something to do 
with a lawyer. That is not true. That is not true. I believe 
that is GAO. Twenty percent hire lawyers. Of the 20 percent, 19 
percent settle short of jury settlement. They have lawyers all 
the way through the process, from the time you hit the ground, 
they are on the phone telling their law department, but, boy, 
they get all stirred up if one of our guys goes to a lawyer. 
Boy, that is horrible.
    Then that 1 percent that goes to trial, two thirds of that 
one percent end up getting an award; one third doesn't. So they 
are trying to contend that all of this that is going on, all 
these people suffering, all these families are suffering 
because one percent of the time they have to go to trial. One 
percent.
    What system do we have that we have to come before here to 
sit down and say these people--nobody in America has the right 
to treat people that are injured and hurt and denying them 
medical care? No one has the right to try to use their own 
employees to essentially cause them additional pain. I call 
that torture. They didn't twist the guy's arm, but the guy's 
arm was already broke. So he is being tortured, he is being 
denied medical care, or she is being denied medical care, and, 
gee, because I don't like a law, I am going to keep torturing 
my people until I can get that damn law repealed.
    God, I am Jewish. The history of my religion is people 
being tortured because they wouldn't change their faith. Now we 
want to torture the railroad employees until they somehow come 
to you and say we have had enough, Jim, we have had enough, Mr. 
Chairman, we want you to change the law.
    I will answer questions.
    Mr. Oberstar. Thank you, Mr. Brunkenhoefer.
    Mr. Tolman.
    Mr. Tolman. Good afternoon, Chairman Oberstar, Ranking 
Member Shuster, Members of the Committee. I appreciate the 
opportunity to be here today.
    The subject of today's hearing is something that has been a 
bone of contention for the Rail Conference members and all 
railroad workers for generations. We believe these policies 
originated because of ties between the industry and military 
that go back quite a way.
    This history underlines why managerial culture in the 
railroad industry is known as command and control. It should 
come as no surprise that railroads react swiftly and harshly 
when something goes wrong. This is true across the board. 
Whether an incident produces an injury to a railroad worker 
results in an accident or merely involves an act or omission 
that causes nothing more than a rules violation.
    It is vitally important for this Committee to understand 
the industry's culture, dating back for more than a century, 
and a half is the root of this problem. This culture manifests 
itself in aggressive, draconian tactics across the board.
    The carriers are fond of blaming the Federal Employees 
Liability Act as the culprit and suggest that it is far more 
adversarial than other programs designed to address workplace 
injuries and occupational illnesses. However, the railroads are 
wrong for two reasons.
    First, injured employees work to seek out the assistance of 
an attorney, as Jim just said, in only a minority of cases. In 
fact, a number of studies have been done dating back for years 
which show that a percentage of cases in which an attorney is 
involved in FELA matters is significantly smaller than the 
percentages of worker's comp cases in which an attorney is 
retained. Moreover, the GAO study said that an overwhelming 
majority of FELA claims are resolved in upwards of 90 percent 
and less than 1 percent end up in court.
    Second, if the industry's argument is valid, then we would 
expect to see a noticeably more lenient response to railroads 
in cases of accidents where no personal injuries are sustained 
and in simply disciplinary matters. This is simply not the 
case.
    For example, the FRA first published a final rule governing 
locomotive engineers in 1991. The industry command and control 
culture went into overdrive. Scores of locomotive engineers 
found that certification revoked for incidents that would not 
have triggered a disciplinary action whatsoever in the past. 
The level of aggressiveness on the part of the carriers forced 
the FRA to reopen the rule for major revisions barely a year 
and a half after it went into effect. On April 9th, 1993, the 
FRA published an interim final rule that significantly scaled 
back some of the revocational offenses and clarified others.
    Although the industry has been hemmed in somewhat by the 
FRA in terms of locomotive engineer certification, command and 
control remains the philosophy when related to railroad 
worker's discipline. The June 27th Senate Appropriations 
Committee report on Senate Bill 1710 points out that the 
Railway Labor Act arbitration cases--many, if not most, 
involving discipline--take an average of 30 months to resolve 
and funding for such cases routinely runs out several months 
before the end of the fiscal year because of the caseload.
    It doesn't matter whether an event involves an injury, an 
accident, or merely a disciplinary matter; the industry's 
response is swift and harsh, and that is what command and 
control is all about.
    In conclusion, the 19th century ended over 107 years ago, 
and it is time to bring the treatment of railroad workers into 
the 21st century. The culture of the industry must change now, 
and together we must share ideas, cooperate to implement 
programs where labor is treated as an equal partner throughout 
the industry and workers are considered a valued resource and 
not a disposable commodity.
    Thank you, Mr. Chairman and Members of the Committee.
    Mr. Oberstar. Thank you, Mr. Tolman. Your complete 
testimony, of course, will be in the record.
    Mr. Cook.
    Mr. Cook. I would like to thank the Members for this 
opportunity to state all factors regarding my injury while at 
work on CSX Railroad in January 2006. I was employed at age 18 
by the Seaboard Coastline Railroad in May 1970, as a locomotive 
fireman and promoted to engineer position in January 1972, 
working over 36 years and 12,000 days until September 2006. I 
held elected positions with the United Transportation Union 
through 1992 and joined the BLE in 1993.
    In 2005, I helped handle complaints of CSX employee fatigue 
from extended overtime, positive job changes were made in 
November, and I, as the senior engineer in our Orlando, Florida 
terminal, did work one of the newly reduced hour jobs. In late 
December I was told by a young CSX manager that ``if I couldn't 
work 12 hours every day, CSX could pull me out of service and 
send me to a doctor,'' which I considered as a threat.
    On January 12, 2006, after working over 10 hours, I told 
the same officer I was tired and felt unsafe. The following 
morning I was informed that I had failed three operational 
rules tests the previous work day at the same time he ordered 
me to leave. I knew of no personal test failures since 1993, 
and I filed a CSX code of ethics complaint for falsifying my 
personal employment records.
    On January 20, 2006, after working over 10 hours with a 
relief crew available and ready to take over, this same CSX 
officer deliberately held me on extended overtime and I 
sustained my only career injury. After a medical check of my 
condition, it showed a back injury which was reported to the 
FRA. My crew and I were subjected to increased operational 
rules tests ordered by the same CSX officer who took me for a 
medical injury evaluation and CSX officer test teams held tests 
much over the average two to four per employee per month.
    The FRA requires the railroad officers to perform normal 
tests for education, not discipline. From January 24 through 26 
of 2006, I was administered 13 tests, but only 11 were noted, 
with 2 alleged failures for me only, and on January 31st I was 
charged with another test failure and two more compliances were 
not recorded again.
    After five area incidents from 12/05 through my injury, CSX 
ordered tests for 56 days, with 457 total employee tests, 19 
failures by 13 different employees. I had 7, and 12 others had 
singular failures. From January 12th through February 16th of 
2006, 35 days, there were 334 total tests wherein I had all six 
failures. These test failures showed CSX was only interested in 
building up a quick record of rules failures on me as a senior 
engineer and very active union member who was injured to cover 
up their goal to terminate me, sending a clear message to other 
local employees not to report any injuries in the future.
    As a result, I was ordered to four separate investigations 
and no other failed employees were charged, with CSX officers 
acting as the prosecutor, judge, and jury. In three 
investigations my fellow crew members were called as Carrier 
witnesses, even though they were guilty of rule violations at 
the same test times, and my witnesses requested were refused to 
be made available by CSX.
    On January 18th, 2006, I sent CSX President Michael Ward an 
18-page letter about this harassment, copying other CSX execs, 
the FRA union officer, six Federal agencies, and three U.S. 
Congresspersons. On March 1st, CSX administered me 85 days of 
unpaid suspension, which was more discipline than our entire 
100-man terminal had in a year. My four discipline cases were 
appealed by the BLET, my regional officer and one 
Congressperson's staff advised me that these actions by CSX 
toward an injured employee were unethical, unlawful, and 
suggested I needed legal advice.
    In July of 2006, I filed an extensive Federal Labor lawsuit 
against CSX based on discrimination, harassment, and 
intimidation of me because I was injured while working for 
them. In early August 2006, the UTU and BLET presidents wrote a 
joint letter to CSX President Ward about injured employee 
incidents where CSX used terms of the ``CSX Action Plan.'' This 
plan directs CSX terminal officers to name five BAD ACTORS in 
each location and all are to be targeted, stalked, and followed 
to find ways to terminate such persons.
    In early 2006, most employees were told, in face-to-face 
rule meetings required by CSX, that if you get hurt, we will 
fire you. I had been checked regularly by numerous doctors and 
it was discovered that I have four bulging upper back and neck 
discs, causing my constant pain. After September 7th, 2006, I 
could no longer work based on my lack of ability to climb, sit 
extended times, or stand the whole body vibrations present 
while performing my engineer duties. I consulted my doctors and 
found that they are not optimistic about my injury improvement, 
so I filed for full railroad retirement disability, which was 
granted March 1st, of 2007.
    In December of 2006, I was ordered to a fifth investigation 
using my crew members again as witnesses, disregarding their 
guilt, which was a final step to terminate me only after I was 
injured, and it was postponed until I will ever be able to 
return to work. This treatment by CSX caused a mental strain 
based on my personal disability, pain, and my employer 
attempting to paint a picture of me to take me from excellent, 
long-term employee, who trained many new hires for CSX, to 
deserving termination only because of my injury.
    Mrs. Napolitano. [Presiding] Mr. Cook, I hate to ask, but 
could you wrap it up, sir?
    Mr. Cook. Yes, I am.
    I started in September of 2006 with psychiatric counseling 
and meds which continue to date to be able to cope with such 
treatment. The CSX Action Plan and their clear actions against 
me show that CSX intends to terminate any employee who reports 
an injury using manipulated, false test records, threats, 
harassment, and/or discrimination.
    All railroad workers hope this hearing and future 
legislation based on clear facts you are presented show that we 
are bullied in our workplace by officers in a transparent 
effort to intimidate employees from reporting injuries or face 
termination. The U.S. workers deserve to be treated with 
dignity and respect in their workplace. This Nation's railroad 
companies should continue to educate employees to improve 
safety, but by intimidating employees through any means is 
unacceptable to create misleading and faulty safety records.
    Thank you.
    Mrs. Napolitano. Thank you for your testimony, sir.
    Mr. Gregory Haskin?
    Mr. Haskin. Good afternoon, Chairwoman Napolitano and 
Members of the Committee. My name is Greg Haskin and I would 
like to thank you for the opportunity to testify today at this 
important hearing. I felt immediate impact of the failed 
railroad industry injury policies and hope this hearing can 
bring to light the abuses perpetrated by the railroads.
    November 5th, 2001 started out as a normal workday for me. 
Less than two hours later, my life as I knew it would change 
forever. As a young boy, I was a typical kid, fascinated by 
trains. My grandfather worked for 27 years for the Union 
Pacific and my father 43 years. I couldn't wait for my chance 
to do what I was born to do. In 1997, I was finally hired into 
train service on the Union Pacific Railroad.
    That dream was cut short at the age of 28 and became a 
nightmare that I may never awaken from. I was truck in the head 
by a piece of steel projecting from a rail car. I would later 
find out that this bar had been broken for more than three 
weeks prior to the accident, but the company needed the car to 
lay rail in the yard and couldn't afford to take it out of 
service.
    When I came to, I was laying face down on the car in my own 
blood and wasn't sure what had happened. Minutes later, Union 
Pacific management was on scene and my lesson in harassment and 
intimidation was just beginning. I was on scene for two hours 
while management decided what to do with me. No call to 911 was 
ever made. No one stepped up to take me to an emergency room. 
No one with medical knowledge was ever brought to the scene. 
They just sat back, hoping and waiting to see if my head would 
eventually quit bleeding.
    Finally, after two hours, I was told that I would be taken 
for medical attention. Instead of taking me to the nearest 
emergency room, the director of operations drove me 30 minutes 
to a clinic located less than a quarter mile behind Union 
Pacific's Central Regional Headquarters. I was injured in 
Kansas, but this clinic was in Missouri.
    On our way there, we passed four major hospitals. I entered 
the clinic soaked in blood with the manager by my side. A nurse 
behind the desk rushed to me with a towel to help control the 
bleeding. She informed the manager that the clinic didn't 
handle injuries this serious. He replied that a UP nurse had 
called ahead and was told the doctor on call would handle it.
    A doctor entered the room within minutes only to be told by 
this same manager he was not the doctor we were here to see. 
The doctor, stunned and amazed, turned around and left the 
room.
    About 15 minutes later, that doctor entered the room. After 
quick examination, he told me I would need staples to close the 
wound and to talk with the manager about what I wanted to do. 
The manager stated if I received staples, my injury would turn 
into an FRA reportable accident, which would follow me for the 
rest of my railroad career and that I would have no chance of 
promotion and it could ultimately cost me my job. I was scared 
to death. I was doing the job I was born to do and here I was 
about to lose it all.
    I chose not to have the staples. The doctor told me he 
could prescribe something, but it would be the same as taking 
four 200 milligram Tylenol, that I probably had at home. The 
nurse then informed the doctor that I had not had a tetanus 
shot in over 10 years. The doctor informed the director and 
myself that they would love to give me a tetanus shot, but they 
were all out of it because of 9/11.
    I didn't know it at the time, but if the doctor would have 
prescribed the 800 milligram Tylenol or given me a tetanus 
shot, my injury would have become reportable to the FRA. I now 
know why he was so reluctant to do either.
    I left with a bandage on my head, resigned to live with the 
pain until I could get home and take some Tylenol. I was driven 
the 30 miles back to the yard in Kansas, to my vehicle, and I 
drove myself 30 minutes to my home, which I barely remember 
doing.
    I got home at about 5 p.m., almost eight hours after the 
accident, and I took four 200 milligram Tylenol, as directed, 
and went and laid down. I woke up at 9 a.m. the next day., 17 
hours later. My head was pounding, I was nauseous, and the 
sheets were a bloody mess. I took more Tylenol and vomited 
throughout the day. My mother became worried about me and 
called my sister, who is a neurological ICU nurse at St. Luke's 
in Kansas City. When she came to check on me and heard about my 
symptoms, she called a friend of hers who is a neurological 
surgeon at St. Luke's, and after hearing the symptoms, told her 
to get me there immediately. I was diagnosed with post-
concussive syndrome and referred to a neurologist. The 
emergency room doctor told me I was lucky to awaken after being 
asleep all that time.
    When UP learned that I went to the emergency room, they 
changed my work status to OS, short for other service, saying I 
was in training. I spent the next month at home in bed on 
narcotic pain medications to try and control the headaches, and 
was shown as OS the entire time, meaning that the UP did not 
have to report my injury to the FRA because I had lost no time 
from work, according to UP's records.
    I then returned to work, continued to work with the 
railroad's approval for over two years, while still undergoing 
treatment for the headaches. In December of 2003, UP told me I 
could no longer work while taking the narcotic pain medications 
unless one of my treating physicians would put it in writing I 
was safe to perform my duties. I was devastated, to say the 
least. I went to all my doctors, pleading for a written 
statement that I was safe to work, but all the begging in the 
world could not persuade them.
    From my injury in 2001 until 2004, I underwent seven 
surgical procedures on my head and neck trying to alleviate the 
headaches so I could keep what I thought was the best job in 
the world. My last surgery was one last attempt to stop the 
pain. In this surgery, a probe was heated to 178 degrees and 
placed on three separate nerves in my neck. Each nerve was 
burned for 60 seconds. No anesthesia could be given, as the 
doctors needed to make sure they were not burning the wrong 
nerves. The only way to describe this pain is to place your 
hand on a stove top on high and leave it there until you can no 
longer feel your hand. I still battle headaches every day. I 
have lost every ounce of pride I once had and deal with 
impotency and depression that no 34 year old man should ever 
have to go through.
    There will be more stories like mine as long as railroads 
are allowed to harass and intimidate employees, as is current 
practice. The current reporting procedures give incentive to 
the railroads to keep an accident from becoming FRA-reportable. 
I do not know if those first 48 hours prior to my laying in the 
emergency room would have made a difference in my health today, 
but I do know if every injury, no matter what type of medical 
treatments are involved, had to be reported to the FRA, workers 
like me would be treated by emergency room doctors that are 
trained to treat traumatic injuries like mine. In my case, the 
doctor that first treated me at the clinic behind UP 
Headquarter was a retired ophthalmologist. That is right, an 
eye doctor.
    The UP records show my accident never became an FRA 
reportable. The director of operations that handled me that day 
has since been promoted twice since my injury and is currently 
a superintendent.
    To finish up, I only wish that--I am sorry. Excuse me. I am 
almost done.
    I have not worked for the Union Pacific since December 1st, 
2003, but to this day the Union Pacific still shows I have 
never lost a day because of my injury. The most ironic thing 
about my accident is that, according to the Union Pacific 
records, I never even worked on November 5th, 2001. That was 
the day that I was injured. If only it was that easy to erase 
my headaches.
    Thank you for the opportunity to address you here today.
    Mrs. Napolitano. Thank you, Mr. Haskin.
    Mr. Timothy Knisely.
    Mr. Knisely. Thank you, ma'am. Good afternoon, Chairman and 
Ranking Members of the Committee. My name is Timothy Knisely. I 
used to be a conductor for the Norfolk Southern Railroad. I 
hired out in October 1974, at the age of 20. In 2001, I was 
injured in the course of my duties.
    On the evening of March 9th, 2001, I reported to work as 
usual. I was required by the Norfolk Southern to take a train 
from our Homestead Yard in Oregon, Ohio to CSX's Stanley Yard 
in Walbridge, Ohio to pick up a number of rail cars and bring 
them back to Homestead Yard. After arriving at the CSX Yard, I 
went to disconnect the air hose from the set of rail cars. The 
brass fitting on the air hose fractured because of metal 
fatigue and old age.
    When this happened, the air hose, being under approximately 
80 pounds of pressure, began to whip around in the air much 
like a fire hose, and with its brass fitting on its end. The 
hose struck me, knocking me all around. It repeatedly hit me in 
my legs, back, chest, and head. Each time I tried to get up off 
the ground, it would knock me back down. This lasted for about 
one minute. It finally stopped when the hose got caught 
underneath one of the cars and permitted me to get on my feet 
as best I could. I knew I was seriously injured and called for 
help.
    The Norfolk Southern trainmaster came to the site to 
investigate the incident. He transported me to the local 
hospital that the railroad uses. The trainmaster attempted to 
persuade me not to report my injury. When I refused his 
coercion and reported the injury, the next day I was charged 
with making a false injury report. The trainmaster did 
acknowledge that I in fact was struck in my legs, back, and 
chest, but claimed, because he could not see any injury on my 
head, that, therefore, I must have lied about being struck in 
the head. After 27 years of dedicated and loyal service to the 
railroad, I was subsequently charged with lying about being 
struck in the head and eventually fired. This charge happened 
solely because I dared to report my injury.
    The day after the incident, the trainmaster, with others, 
went back out to the CSX yard to videotape a re-enactment in 
order to prove at my hearing that I could not have been struck 
in the head by the hose, to show that it could not go that high 
so as to support my firing. Unbeknownst to me, the videotape 
was altered and those portions that showed that the hose would 
in fact go even higher than my head, were removed from the 
videotape. The railroad contended that the hose would only go 
five to ten inches off the ground. The railroad proceeded to 
have their hearing and fired me after 27 years of service, 
allegedly not because of the incident and not because I claimed 
to be hit on other places on my body, but simply because I 
claimed I was hit on the head.
    The truth was that they fired me because I chose to report 
my injury and the claim that I was not struck in the head was 
simply the best they could come up with. The railroad fired me 
even after I submitted voluminous pages of medical 
documentation specific to my head injury. The medical reports 
included the emergency room treatment of the day of the injury 
and the immediate months thereafter, not the least of which was 
extensive examination right here with doctors from George 
Washington University School of Medicine.
    The railroad chose to ignore both my statement and the 
volumes of medical proof of severe head injury. Nevertheless, I 
remained permanently fired not because of my work that night, 
nor because of my injuries, but solely because I chose to 
report my injuries.
    During the civil FELA litigation that followed, the 
railroad was required to produce that videotape. It was then 
that it was discovered that the videotape had been tampered 
with and a portion out of the middle of the tape, which proved 
that the hose under these circumstances would fly in the air up 
to 9 feet or more, was taken out. When this was brought to the 
attention of the court, the railroad acknowledge and admitted 
in court to the tampering of the videotape. The court made a 
finding that ``a videotape recreating an equipment malfunction 
which was videotaped by Defendant Norfolk Southern and produced 
during the course of discovery in this case was deliberately 
and intentionally changed for the purpose of deception before 
it was provided to Plaintiff.
    Of particular concern to the court was the fact that the 
Defendant Railroad edited a significant portion from the 
videotape which helped substantiate the type of injuries 
Plaintiff received on March 9th, 2001 by the malfunctioning and 
defective equipment, and which controverts the basis upon which 
Defendant Norfolk Southern terminated Plaintiff's employment.''
    It was my belief then, and it remains my belief today, that 
I was charged and fired for daring to make an injury report so 
as to be made an example of and so that others in the future 
would think twice before filing a Federal Railroad 
Administration required injury report.
    I am aware of other colleagues of mine at the same yard--
Arthur Richter, Michael Linkenbach, Susan Sheidler, and 
others--who have been similarly charged for allegedly filing 
false injury reports within days or hours of such reporting of 
their injuries. It is my belief, as well as the belief of 
others, that the purpose of such firings is to maintain a 
chilling effect throughout the Toledo area on the abilities and 
initiative of other injured people who might dare to report 
their injuries as required by the FRA.
    Thank you all for taking the time to listen to me today.
    Mrs. Napolitano. Thank you for your testimony, sir.
    Mr. Charles Ehlenfeldt?
    Mr. Ehlenfeldt. Yes, Ehlenfeldt. Good morning. I am a 
former employee of the Burlington Northern Santa Fe. On August 
1st, 2002, while operating a poorly maintained switch, I was 
injured. Since the accident, I have had two major back fusion 
surgeries.
    Despite this, the BNSF reported the cause of my injury to 
the FRA as a human factor. They blamed me for the injury. In my 
opinion, the BNSF did not accurately report my injury to the 
FRA. From the date of incident, I have been harassed, 
intimidated and treated unfairly by the railroad.
    I was called into the supervisor's office almost 
immediately after the incident. Both the superintendent and 
train master were in the office. I had no union representation 
or even a neutral person with me at that time. The two 
officials closed the door and drilled me with questions.
    The BNSF used my injury to fire me. When I called BNSF and 
told them I could not work due to my back injury, the 
Burlington Northern Santa Fe would not allow that. I had to lay 
off sick rather than lay off due to my on the job injury.
    This counted against me in BNSF's attendance policy. I was 
eventually to attend an investigation where they alleged I 
violated the policy. I had an on the job injury, and the BNSF 
was going to punish me for that. The worst form of harassment 
and intimidation came when the BNSF terminated me.
    On January 6th, 2006, while working on a train, I heated a 
can of soup in a sidewall heater. Engineers and trainmen do 
this because BNSF does not provide any way to heat food on a 
train. We often work 12 hours a day and sometimes must remain 
on the train for up to several hours more without access to 
food. When I opened the can of soup, it splashed on my face and 
burned it.
    I reported this incident to the BNSF as I was required to 
do. The BNSF then forced me to attend an investigation 
concerning this incident. Prior to the investigation, I gave 
the railroad a doctor's note that I was unable to work due to 
my back injury. I was permanently terminated after this 
investigation.
    In the investigation, Randy Cartwright, Road Foreman, a 
Burlington Northern Santa Fe official admitted that it was 
common practice to heat food on locomotive equipment including 
sidewall heaters. Mr. Cartwright had been with the railroad 
since 1969, and he himself had used locomotive equipment to 
heat food. To my knowledge, he was never investigated by the 
railroad.
    He also testified that he knew that other people had used 
the sidewall heater to heat food in the past. Despite the 
railroad's knowledge of this common practice, there was no rule 
against it. In his deposition, Mr. Cartwright was unable to 
explain, in his position as a railroad official, why I was 
fired and he was not when we both had engaged in the same 
common practice.
    I believe the facts of my case show that the Burlington 
Northern Santa Fe harassed and intimidated me because I was 
involved in an FRA reportable injury.
    In a time when I was physically hurting--I had two major 
back fusion surgeries and was in significant pain--the 
Burlington Northern Santa Fe made the conscious decision to 
kick me while I was down. They cut my healthcare insurance 
during the time I was scheduled to have my second major back 
surgery and, while in the hospital, they had my car towed.
    They brought trumped-up charges against me on two occasions 
and assessed discipline both times. The second trumped-up 
charge resulted in permanent dismissal. The only difference 
between my case and the numerous other employees that have done 
the same thing, including company officials, is that I had an 
FRA reportable injury.
    The pain I have endured through 13 hours of surgery and the 
long months of recovery pales in comparison to the emotional 
pain and financial stress that Burlington Northern Santa Fe has 
put on me and my family.
    Members of this Committee, thank you for listening to my 
story and taking on the issue of railroad harassment and 
intimidation. Individual employees, such as all of us here and 
many who are too scared to say, are not any match for the large 
railroad corporations, such as the BNSF. I believe we need 
Congressional action to solve this serious injustice.
    Thank you.
    Mrs. Napolitano. Thank you, sir, for your testimony, and 
thanks to all of you for being here.
    Unfortunately, we are going to be recessing for about an 
hour until after the vote. We are currently just about ready to 
go for another vote, and I have been instructed to please ask 
for the recess for one hour.
    So, again, thank you so very much and please stand by.
    [Recess.]
    Mr. Oberstar. [Presiding.] The Committee will resume its 
sitting with, again, apologies to all, especially witnesses who 
have traveled a long distance to be here for this hearing and 
expected to be heard and to be heard in their entirety.
    None of us could anticipate all the procedural motions that 
were offered on the House floor throughout the morning and into 
the early afternoon and the consequential votes that occurred 
because of those procedural motions. But I think my message 
from the floor from both sides of the aisle--I think Mr. 
Buchanan can confirm--is that we are safe for at least the next 
hour and a half.
    Mr. Jungbauer, Mr. Brunkenhoefer, very powerful, compelling 
testimony, Mr. Tolman, Mr. Cook, each of our individual 
accident victims who told their stories in very compelling 
ways, I thank you for your testimony. Thank you for having the 
honesty, integrity and courage to come forward and express your 
particular case.
    The purpose of this hearing is to give voice to those who 
have not been heard to an issue that has not be aired publicly 
in the hearing process and to seek redress.
    Mr. Jungbauer, you have had a lot of experience in the 
courtroom, experience intimately engaged with the experiences 
of individual railroad workers. Why do you believe railroads 
systematically underreport accident and injury?
    Mr. Jungbauer. Mr. Chairman, I believe, after studying this 
for quite a number of years, that there are programs that most 
carriers have that provide a financial incentive to middle 
managers and first line supervisors which, as I tried to say 
earlier, can cause even good people to turn bad. If it is a 
matter of whether or not they get a bonus or part of a bonus or 
promotion, people will start to put pressure on the injured 
people.
    I think that is what has gone wrong because I have done 
this long enough that at the beginning of my career I didn't 
see this type of harassment. This is a much more recent thing 
that has gotten worse. Since about 1992 is about the best I can 
put a timetable on it, that it has really gotten worse since 
about then, major changes.
    Some of the other witnesses had said that the FELA is 
combative. I have had wonderful relationships with some major 
rail carriers where we did everything on a handshake, but 
things have changed. It is not just because of the FELA. It is 
because of other things that I can't fully put a finger on.
    But in trying to think, to give advice to this panel, to 
this group, I think if we could convince railroads to get rid 
of the financial incentives to middle management and first line 
supervisors, that would go a long way to being able to protect 
our workers with the new legislation that has come forward and 
the legislation recently passed by the House.
    Mr. Oberstar. I am a little reluctant to raise it, but that 
is the Harriman Award because it was started for a laudable 
purpose to reward and recognize railroads that have excellent 
operating practices and injury-free and accident-free 
practices. It has been alleged that in the rush and the 
pressure to win the Harriman Award that railroads are 
repressing adverse information.
    Mr. Jungbauer. I believe that to be the case.
    Mr. Oberstar. Mr. Brunkenhoefer, you said that 80 percent 
of injuries are settled within the company or railroad.
    Mr. Brunkenhoefer. Yes, and Mr. Jungbauer corrected me. He 
says it is 90 percent. He said it was 90 percent.
    Mr. Oberstar. Ninety percent.
    Mr. Brunkenhoefer. A significant number are settled between 
the employee and the representative of the employer.
    Mr. Oberstar. Only 1 percent of cases go to trial.
    Mr. Brunkenhoefer. That is my understanding.
    Mr. Oberstar. How many cases does that represent? One 
percent is how many?
    Mr. Brunkenhoefer. I have absolutely no idea how many FELA 
cases are filed.
    Mr. Oberstar. Mr. Jungbauer, do you have any idea?
    Mr. Jungbauer. In my firm, if I try, we have similar 
statistics. We have to work the cases right up to trial, and 
that is a difference by the way. In the old days, there was not 
so much friction between the railroads and us. We could settle 
cases early which saved money for everyone, but now because of 
certain polices in claims departments where the operating 
people are having something to say as well as claims on whether 
or not a case can settle, that is what I believe is driving 
things right down the courthouse steps also.
    But I do believe, Mr. Chairman, it is a very small number 
that actually go to trial. Many, many cases go right to the 
courthouse steps, which is too bad.
    Mr. Oberstar. Mr. Tolman, do you have any way of knowing 
how many injuries are never reported?
    It is hard to prove a negative, but how many are not 
reported?
    Mr. Tolman. No, I mean we don't have the statistics. I mean 
I think the credible witnesses on my left did a brilliant job 
presenting what is happening in the industry, and it is 
unfortunate that it shouldn't be happening like that.
    The GAO did the study on those numbers that were presented 
today, 90 percent resolved before it got to court, 1 percent 
that did go to court, and we don't have the numbers even on how 
many or what they were actually looking at.
    Mr. Brunkenhoefer. If I can interrupt, we have had regional 
meetings of where we will have 700 to 1,000 members, and I have 
said, anybody who believes that they will be injured and not be 
fired that works for a railroad, would you stand up? It doesn't 
happen. So the perception among railroaders is if you have a 
reportable accident, you at least expect to be fired.
    Mr. Oberstar. Well, management obviously has the 
responsibility to distinguish among various kinds of behavior, 
to identify unsafe behavior and safe behavior, and to educate 
employees, work with employees on safe practices.
    Mr. Cook, are you aware of such practices within the 
railroad sectors? Do they have programs for employees on how to 
operate this, that or the other piece of equipment safely and 
conduct themselves safely?
    Mr. Cook. Yes, sir. In all my years with the railroad, the 
number one priority was always safety. In the last few years, 
as a past union representative is when I started seeing this 
trend to where they started disciplining people vigorously 
because of any injuries, but they have had safety programs for 
years and made them their number one priority.
    Mr. Oberstar. When Mr. Tolman says in the old days or Mr. 
Jungbauer, he means prior to 1992?
    Mr. Cook. Yes, sir, that is right.
    Mr. Oberstar. What caused this sort of demarcation point? 
What happened from 1992 on to change practices?
    Mr. Cook. I don't really have a credible answer for you. 
All I know is what I have seen. I had never been injured in my 
career, so I didn't have to face it, but I did represent a lot 
of members who were injured and none of them, up until the last 
few years, were targeted, stalked or intimidated until they 
were fired. That was their intent they have started in the last 
few years.
    Mr. Oberstar. Now Mr. Haskin and Mr. Knisely and Mr. 
Ehlenfeldt, the Federal Employers Liability Act, FELA as it is 
popularly known, enacted in 1908 was enacted at a time when 
railroading was the largest or one of the two or three largest 
employers in the Country. Railroading was the preeminent 
industrial activity.
    A job on the railroad was highly sought after, a very good 
paying job, better than working in the steel mills and, for a 
good many Americans, better than working on the farm. They went 
to work for the railroad.
    Railroads have, from time to time and I know in the last, 
oh, eight or ten years, suggested that these problems could be 
corrected. These problems of reporting and of assigning points 
and all could be corrected if FELA could be amended or 
rescinded, repealed and a worker's comp type program 
substituted forward. What would you think about that?
    Mr. Haskin. Mr. Chairman, in regards to my case, I have had 
a lot of time in the last six years since I was injured. Every 
day, four or five times a day, I am reminded that I got hurt, 
and so it is emotional at times for me to talk about it. It is 
something that I am very passionate about, that I would love 
to, if I can just make a difference and keep it from happening 
for one other person, then being here today or anything that I 
do is worthwhile.
    I truly believe that, without FELA, the day that I was 
injured, who knows? I might not even be here today to talk 
about it because I truly believe that once Claims showed up on 
the scene and took over the case, that that was the whole 
reason for we need to do something with him because his head 
hasn't quit bleeding.
    I think, without FELA, it will be a graveyard in the 
railroad yards. I think there will be injuries, deaths, and I 
think the statistics will go straight through the roof when 
they are actually reported.
    Mr. Oberstar. Thank you.
    Mr. Knisely?
    Mr. Knisely. Yes, sir, Mr. Chairman, I believe that we 
really need FELA desperately because as I believe it is one of 
the only programs that the railroad pays attention to when 
workers are injured. If we were going to go to workman's 
compensation, I believe there would be caps on what the workers 
would be allowed to get as far as being compensated for lost 
arms, legs, catastrophic injuries.
    I just believe that the railroads pay much more attention 
to FELA, and the actual employees have much better ability and 
protection because the railroad does have to pay attention to 
FELA. So, therefore, I believe it is much more important to 
have that than workman's compensation which I think could 
become corrupt easier than the FELA system.
    Mr. Oberstar. Thank you.
    Mr. Ehlenfeldt?
    Mr. Ehlenfeldt. Yes, sir, I believe the reason they have 
FELA, especially in the rail industry, is when an accident does 
occur, a lot of them are pretty serious since the heavy 
equipment. When you do get hurt, you are probably going to have 
a good likelihood of getting hurt bad. I just feel that I guess 
I have to ask a question. Why would the difference between FELA 
and the labor act that they would like it to go to? Why would 
that matter of it being treating people like human beings?
    If somebody was hurt, why should it matter if they are 
subject to FELA or subject to State industrial tax or State 
industrial? Why would that matter?
    Why would this man have to sit there? He is lucky he is not 
dead for getting hit in the head and Mr. Haskin.
    I don't really see why should that cause somebody to act 
like a decent human being to take care of somebody that is 
hurt?
    I don't really understand the reason why they would want to 
get. Why would they want to get rid of it if everything is 
cool, if everything is okay? I don't really see what. That is 
our only protection is the way I see it.
    Mr. Oberstar. Thank you.
    Mr. Buchanan.
    Mr. Buchanan. Thank you, Mr. Chairman.
    I want to thank all our panelists today for coming in.
    I am a guy that has been in business for myself for 30 
years, and I have had my fair share of issues over the years, 
but primarily it has been the workman's comp field. So this is 
something new for me today as I have to try to understand it.
    Let me just ask you. You had mentioned, Mr. Jungbauer, the 
thing about 1 percent go to trial. That doesn't unreasonable. 
Are you saying that is high, low? You made that comment.
    Mr. Jungbauer. The reason I make the comment is if some 
people that are tort reform advocates say that civil cases such 
as FELA clog up the court systems. The fact is they don't. The 
fact is that business litigation clogs up the court systems a 
lot more than civil cases do. So it is not a strain on the 
court system.
    As far as statistics that tort reformers might want to say 
that, oh, there is so much spent on this and that, if railroads 
would just be safe, carriers would be safe early, they could 
put lawyers out of business. Put me out of business. I don't 
need to be here. I can find something else to do. Just be safe.
    Mr. Buchanan. I am the first one. I have had a lot of 
employees, and if we have someone that gets hurt, we are 
motivated to make sure they get back. We take care of them, do 
the right thing. I would think the railroads have that mind 
set. I don't see why they wouldn't want to deal with that in a 
positive way, but maybe I am wrong on that.
    But I can tell you that the proliferation, at least in the 
State of Florida, with trial lawyers has been enormous. It has 
put a lot of small businesses out of business. I was Chairman 
of the State Chamber two years ago, and we represent 137,000 
businesses. But I can tell you a lot of lawyers in my case have 
created a lot of value, but it just seems like there is a lot 
of issues that sometimes get abused, not many but some.
    I was just trying to get back to the 1 percent comment you 
made. I think in the system that doesn't seem because you are 
not always in workman's comp either able to resolve all those 
issues all the time. One percent seems kind of normal or low. I 
don't know if that is. I was only trying to get my 
understanding.
    Mr. Jungbauer. I think it is a low number. If 50 percent 
were going to trial, we would really be clogging up the court 
system. The fact is most cases can be settled. As I testified 
to earlier, if we can get claims people that will actually talk 
to us, we can settle cases early.
    In the old days, like at Burlington Northern, there was a 
guy Jack Lambrick, one of the best guys around. The biggest 
case I ever settled, I settled with him in 15 minutes because 
we had a trust with each other.
    Sioux Line, Chuck Nelson was one of the best in the 
Country. If I even made a flinch with my eyebrow, it could cost 
me money. He could read me so well.
    Those were good, honorable, wonderful people. If we can get 
back to that type of relationship of trust, lawyers can still 
represent their clients.
    The best thing is injured people won't go to lawyers if 
they have a trust relationship with their carrier, with their 
employer. So if I was the employer and wanted to put lawyers 
out of business, I would just treat my employees better.
    Mr. Buchanan. Well, I think that should be the mind set, 
and that is what we have tried to do is do everything we can.
    As I was in the automotive retailing business part of my 
career, we had a lot of people dealing with the equipment and 
automobiles. So, safety and putting a lot of emphasis on that 
because we couldn't afford to have our people be out of work, 
and so we would try to deal with it as aggressively as we 
could.
    Mr. Cook, let me just ask you in terms of your experience, 
what happens when someone gets hurt with the company you are 
with? How do they deal with it?
    What happens? What do you do when someone gets hurt?
    Mr. Cook. Mr. Buchanan, in my case, I reported to my 
immediate supervisor. They took me to the nearest local 
hospital, major hospital in Orlando. I sat in a wheelchair for 
nine hours. I had my vitals taken twice.
    About six hours prior to the nine hours expiring, we were 
told that I would be five or six hours being seen, and I told 
the supervisors after nine hours and twenty-one and a half 
hours on duty, if my back wasn't hurting from my injury, it was 
now hurting in addition because of sitting in this wheelchair.
    So this is what happens. I could have been taken to another 
hospital, but instead we stayed in that one place which was a 
major hospital in Orlando.
    It was after that, that weekend, I was on my off days. They 
had told me to take an extra day off when I was due back to 
work to see how my back was doing, to attend a safety seminar 
which I did.
    When I tried to return to work the next three days is when 
I was besieged by these test teams who were ordered to do 
whatever they could to fail me to make me appear to be a person 
that was an excellent employee by record to a lousy employee 
within a matter of three days. That is what happened.
    Mr. Buchanan. You were working with CSX, is that it?
    What do you think? Why are they motivated? Why is the 
company motivated to do that in your opinion?
    Mr. Cook. In my opinion, we found out later what it was. It 
was what is called the action plan. They are ordered, the CSX 
officers, to label five bad actors in each terminal.
    You generally will not know, and I didn't know that I 
happened to be on that list, but the only reason I was on the 
list was because I got injured. It was the first one in my 
career. I did everything to avoid it.
    But their orders are to increase the FRA testing, which is 
not meant to be disciplinary, and use it as a disciplinary tool 
in an effort to terminate you. That is going to be the final 
step.
    Mr. Buchanan. In your case, you are a good employee. Why 
would the company be motivated to do that?
    I am just trying to understand, myself. If I have a good 
employee, and I have had employees for 30 years that I have 
dealt with. If I have a good employee that is productive, I 
don't understand why it is in the company's best interest to 
terminate you and not get you back to work right away.
    Mr. Cook. Well, I agree with you, but in reality what they 
have done with this action plan and this point system or 
whatever you may want to call it, they have a created a method 
so that to terminate a person that is injured will send a 
message to following employees: Don't report that injury unless 
you want to have the same thing happen to you.
    Mr. Buchanan. Mr. Haskin, what is the procedure with your 
company if you get hurt? Do you feel like they have the 
employees' best interest in terms of safety and your health?
    I know you had a pretty tough incident, but I was just 
curious about from your standpoint.
    Mr. Haskin. You know with having a father and a grandfather 
that worked for the Union Pacific for over 70 plus years 
combined or 80 plus years combined, when I was a young boy, I 
thought they did. I really grew up that way and thought it was 
a great place to work and felt the same way when I hired out. 
It shortly changed thereafter where I kind of saw how the 
changes were, the discipline, the intimidation when it came to 
injuries.
    Union Pacific, constantly on their web site, or they at 
least did when I was working--I assume they still do--would 
track FRA reportable injuries on the front page for each 
region. In my case, Kansas City was at the top of that list or 
was probably a number one when I was injured.
    You might say, well, what is big about an award? Well, 
these managers, the manager that handled me that day that I was 
injured has since been promoted twice and is now superintendent 
of a major city or major region. I think it is incentive to 
them.
    Obviously, we don't know any financial or have any facts of 
financial gains for them but as far as promotions, I think my 
case speaks for itself, that this manager went right up the 
ladder. He had a pretty well stalled career for six or seven 
years prior to my incident and since then has been promoted to 
superintendent.
    I think it sends a sign to other managers that you be tough 
because in my case I know for a fact that how they treated me 
kept at least five to ten other people that had minor, smaller 
injuries than I did from reporting it because they were scared 
to death that they were going to be terminated. They would 
rather not report a sprained ankle or what have you because 
they didn't want to lose their job over it.
    Mr. Buchanan. So what you are saying is if someone had a 
minor injury that got reported, they would be terminated. Is 
that what you are saying at this company?
    Mr. Haskin. One hundred percent. I was also in 2003, and I 
will make this quick. In 2003, I became after the railroad told 
me. After they let me work for two years on a narcotic pain 
medication, they told me that I could no longer work. I became. 
I wanted to be active, and I wanted to do something about it 
because I knew that they couldn't intimidate me financially 
because they already told me I couldn't work.
    They couldn't hurt me any worse than they already had with 
the headaches and everything else physically that I went 
through every day. So I decided that I was going to be somebody 
that they couldn't intimidate.
    I personally watched the same little business and industry 
clinic that employees were taken to with the doctor, the 
specific doctor that they wanted to see. I watched that to 
where injuries weren't reported. They might fill out an 
accident report, and it is the same as I did.
    I filled out an accident report, but the manager 
specifically said we are going to put this down as first aid. I 
was given first aid the day that I was injured. Okay, so it is 
not a reportable injury to the FRA if it is first aid. That is 
why none of the medication was prescribed to me.
    But one of my first cases that I had as a local chairman 
was an employee that sprained his ankle in the Kansas City 
yard, and he called me and said I sprained my ankle. I was 
like, well, you need to fill out an accident report. They have 
already told me they are going to fire me or they are going to 
have an investigation if I fill out this report. Anyway, I was 
like, so we talked.
    Long story short, they had him come to work for three days, 
and he sat in the crew room while they called another employee 
to work his job and that way it didn't have to turn into an FRA 
reportable injury. He got paid by sitting on a couch in the 
break room for three days, three tours of duty, just so they 
would not have to report it to the FRA.
    Mr. Buchanan. That is unbelievable.
    Mr. Knisely, let me ask you, in your incident, did you 
receive prompt medical attention on behalf of the company or 
what happened there?
    Mr. Knisely. Excuse me. Yes, sir, I did receive prompt 
medical attention. I was taken to the hospital that the 
railroad normally takes their employees when there is any kind 
of an incident. Like I say, they tried to coerce me not to make 
out a medical accident report which is required by the FRA to 
do.
    When I told them that, yes, in fact, I needed to go to the 
hospital, they did in fact take me. However, after I reported 
my injuries, even though they had records, they wanted to make 
an example out of me to send a chilling effect to any other 
employee that heard that I was injured so that they would keep 
them from reporting injuries which are required by the FRA to 
report.
    Mr. Buchanan. How did they coerce you?
    You said they coerced you. What do you mean by that? What 
did they do?
    Mr. Knisely. Saying things like: Oh, well, you don't feel 
that bad, do you? Gee, it was night time. Let me look. Oh, I 
don't see. I don't see any blood coming out of your head. There 
is no way that you could have been hit. Well, let's just do 
this as a precaution.
    I was limping on one leg. I still had a lot of adrenaline 
going through my system and all the bruises hadn't come to the 
surface yet.
    But that was their form of saying, well, gee, you don't 
really, this isn't really that bad or anything. So that was the 
way that they went about handling that situation at the scene 
of the accident.
    Mr. Buchanan. Thank you.
    Mr. Ehlenfeldt, what is the safety policy in your situation 
with the company? What was involved there?
    Mr. Ehlenfeldt. The safety?
    Mr. Buchanan. When you had your incidents, how did the 
company respond?
    Mr. Ehlenfeldt. Well, they basically put me on trial inside 
the office, trying to tell me that, just asking me questions on 
what happened, and then they tried to tell me how it could 
possibly happen.
    Basically, the crew that was with me, the engineer, he had 
over 30. Maybe he had even 40 years experience, and the 
brakeman that was with me on that job was probably about the 
same amount of seniority. Both of them, I wasn't going to turn 
in the injury because I was too scared to turn it in, but they 
could see that I was in pretty bad shape.
    So I had to drive about an hour because we were working at 
a remote location. When I told the superintendent there, the 
way he handled it was to drill me with questions about what 
happened, why did this happen, where did it happen, and tried 
to basically.
    They offered to take me to the doctor's office, but I 
thought that I had just strained myself and figured I would be 
able to feel better if I just was able to lay down for a day or 
so.
    They called me and asked me more questions on not really 
how I was feeling or anything but of what happened, how I could 
possibly get hurt.
    When I finally found out that I really had severe problems, 
then when I returned to work for light duty, the local 
supervisors there would pull me aside and ask me why, different 
questions about why it was taking me so long to come back to 
work, when my next appointments were, why I would take so long 
to get certain appointments with a specialized surgeon, when my 
specific appointments were and why they had to be during time 
when I should be at light duty and why. It was just a big 
harassment about two or three times a week.
    I believe that if a guy gets hurt, from what I have been 
told by fellow employees, the railroad, the Burlington Northern 
anyway, they tried to assess any answer for an injury, that it 
is the employee's fault no matter what it is.
    A recent injury that happened at Hauser, Idaho, in the last 
year or so, a fellow was walking at night, fell in a hole, 
injured his ankle, and they brought him into the office and 
questioned him for two or three hours before they would let him 
get medical attention. By that time, they had filled the hole, 
took pictures of where supposedly he had fallen in this hole. 
That is just kind of the way. That is the way they treat you.
    Mr. Buchanan. Well, thank you for your testimony. I want to 
thank all the witnesses.
    That is it for me, Mr. Chairman.
    Mr. Oberstar. Thank you, Mr. Buchanan.
    Ms. Brown, the Subcommittee Chair.
    Ms. Brown of Florida. Thank you, Mr. Chairman.
    These are certainly some horror stories. I guess I want to 
start with you, Mr. Cook, but before that, I want to ask Mr. 
Haskin. When you had your accident, you indicated that you laid 
on the ground for two and a half hours and they didn't take you 
to the hospital or anything?
    Mr. Haskin. Actually, there was a maintenance away truck 
that was within 100 yards of where I was injured, and they took 
me over there and laid me in the bed of the maintenance away 
truck for the two. It was two hours.
    Ms. Brown of Florida. Why didn't you say something?
    You felt intimidated. I mean you were bleeding. You were 
injured. You needed medical attention.
    Mr. Haskin. Right. Well, at the time, I was asked that 
question. I know my dad asked me that question.
    Ms. Brown of Florida. Your mama had to make sure you got 
some help the next day. I don't understand why you didn't speak 
up. Maybe we can get to the root of this.
    Mr. Haskin. Right. When I was injured, and obviously when 
you only get five minutes, you can't tell all the details. I 
could have went on for 15 and added a bunch more horror details 
in there, but I tried to bring out the most important things.
    When I was laying in the back of the maintenance away truck 
and, as I said, the director of operations was on scene within 
five minutes after this happened and walked over. Showed up and 
walked over to the car that I was injured on first. Looked at 
for I don't know how long it was. I mean I was a little groggy 
and didn't know how bad it was. Then came to me and says.
    Ms. Brown of Florida. You were bleeding?
    Mr. Haskin. I was bleeding, laying back, laying down there. 
They didn't have any first aid equipment in the truck. The only 
thing they could find was a towel that the maintenance away 
employee had in his front seat, and they applied that to my 
head.
    Ms. Brown of Florida. I understand that the company wasn't 
responsible, but why did you not say, listen, take me to the 
doctor?
    Mr. Haskin. Yes, ma'am.
    Ms. Brown of Florida. You felt intimidated?
    Mr. Haskin. Well, the manager showed up and instead of 
saying, are you okay, the first thing he said was, how in the 
hell did this happen?
    Ms. Brown of Florida. Okay, and your response should have 
been: I need help. Take me to the hospital.
    Mr. Haskin. Right.
    Ms. Brown of Florida. I would have done it.
    Mr. Haskin. Absolutely.
    Ms. Brown of Florida. But you felt intimidated?
    Mr. Haskin. Absolutely. I knew that I had watched enough 
other people, employees that I knew, that when you get hurt on 
the Union Pacific, it is pretty well written law that you will 
have an investigation. No matter how the accident happened, you 
will have an investigation.
    I was scared. I was scared that I was going to lose my job. 
This is what I wanted to do since I was eight years old.
    Ms. Brown of Florida. Yes, sir, I understand that.
    Let me find out. There are four of you that testified. Can 
you give me a couple of things?
    Give me your status, where you are now. I think several of 
you said you got fired. Did you get reinstated? Did you get 
money? I mean did you get taken care of and how would you 
recommend that we improve the system?
    Then I have other questions for the other speakers, but we 
will start with you, Mr. Cook.
    Mr. Cook. Ms. Brown, my status is, in September of 2006, I 
could no longer physically work. I couldn't climb, sit long 
hours or anything else that had to do with engineer duties 
which is what I had been doing for 36 years.
    I had to apply for railroad retirement disability. That is 
where I am. I continue to go to doctors and chiropractors. They 
are not optimistic that I am going to ever get any better.
    I have exhausted all the medical changes I have. Not as 
serious as some of these guys are, but still I am not able to 
do my job because of my injury.
    Ms. Brown of Florida. I understand that. So you are getting 
railroad retirement as we speak?
    Mr. Cook. Yes, ma'am.
    Ms. Brown of Florida. All right, and Mr. Haskin?
    Mr. Haskin. As I had said, December 1st, 2003, the 
railroad, the medical director sent me a letter stating that I 
had to have the doctors okay me to work or say that it was safe 
for me to work on that medication. None of them would.
    Ms. Brown of Florida. I applaud them too. If you weren't 
eligible, you should not be working. You should not have been 
working.
    Mr. Haskin. Absolutely, and in hindsight that was a lot of 
the questions of why the Union Pacific medical director okayed 
me for two years to work on narcotic pain medication. 
Obviously, I wasn't going to pull myself out because this was 
what I wanted to do forever, and I truly believed in my own 
heart that I was safe to work.
    In hindsight, looking back into the picture, there were 
times that I know that I wasn't attentive as I what I needed to 
be. So they told me that I couldn't work anymore.
    I was still local chairman at the time and continued to be. 
I took the local chairman's position after, in January of 2004, 
after they told me I couldn't work. I needed to do something 
and continued to do that until 2005.
    In 2004, my case went to trial. Speaking of FELA, and I 
know that that has been or FELA has been brought up a lot. In 
my case and you have heard my testimony, and the railroad knows 
all these facts. They knew them all at the time.
    It was kind of ironic. In December of 2003, they finally 
took responsibility that it was their fault to cause my injury, 
but for the two years prior to that, they denied it, completely 
denied it.
    My case went to trial in April of 2004. My attorney had 
been doing this for 27 years, and the day before trial he told 
me this is the first time I have never had not one nickel 
offered to settle this case, not one nickel.
    I had no choice but to go through, went in front of a jury 
and my peers, a 10 day trial. We put on 10 days worth of 
evidence. The railroad came back and put on 45 minutes worth, 
and the jury awarded me $3 million.
    Ms. Brown of Florida. Okay. Mr. Knisely?
    Mr. Knisely. Yes, ma'am. I am sorry. Could you repeat the 
question, please?
    Ms. Brown of Florida. What is your status now?
    Mr. Knisely. I am on occupational.
    Ms. Brown of Florida. How can we improve the system?
    Mr. Knisely. How can I improve the system?
    Ms. Brown of Florida. No. We, Members of Congress, what can 
we do?
    Mr. Knisely. Okay. First of all, I would say, and I want to 
thank everybody for doing all the work they did on the bill 
here, but I would recommend that we keep FELA. Do not allow 
workman's compensation because of the great potential for 
abuse.
    I would say not only make the railroads themselves, meaning 
the company, liable for intimidation and those types of 
practices but possibly make the people, the immediate 
supervisors, have some kind of liability now because they are 
protected under the financial blanket of these very wealthy 
railroads. That is what I would do.
    I would make not just the railroads liable, but I would say 
if a train master or superintendent or local management was 
found to do things against the law, as in my case they tampered 
with tape, actually took out sections of tape which I would say 
would be illegal. The court did not approve of it, obviously.
    I would say make them liable also. I think that would help 
a lot as far as the harassment goes among the employees and the 
middle management people.
    Ms. Brown of Florida. You got fired also, sir?
    Mr. Knisely. That is correct, ma'am.
    Ms. Brown of Florida. What was the end result? You took 
them to court and what was the end result?
    Mr. Knisely. Okay, we settled out of court right before our 
court, as a matter of fact. The end result was there was a 
settlement. There is a confidentiality agreement which I am not 
supposed to talk about.
    Ms. Brown of Florida. That is fine, but how would you 
encourage other employees because I don't understand why let's 
say the person sitting next to you didn't speak up when he 
needed to go to the hospital?
    What we can do to ensure that if someone is seriously 
injured, that they will ask for assistance?
    Mr. Knisely. What you could do is hopefully pass these laws 
that are in this bill, saying that an employee is protected if 
they do report their injuries and afford some sort of 
protection to the employee that they can't be fired until it is 
proven somehow through not a company court but through some 
sort of substantial. I don't necessarily know if it has to be a 
court system but some kind of a substantial panel that the 
railroad doesn't own themselves.
    Ms. Brown of Florida. Okay, the last person.
    Thank you, Mr. Chairman, for giving me a little extra time.
    Do you think an ombudsman would be helpful to have on the 
job, the last person?
    Mr. Ehlenfeldt. I am not sure. I am not sure how they 
would, what the best policy would be, but I believe that the 
way they have it set up now is that your local management team 
in different terminals, you are basically stealing their money 
if you file, if you get hurt on the job.
    Ms. Brown of Florida. You are speaking of bonuses?
    Mr. Ehlenfeldt. Yes, and I think they take it. Instead of 
working as a job to take care of your fellow employee, I think 
they take it personal. I am sure there are a few good train 
masters or first line supervisors, but for the most part they 
are well aware that if you do get hurt on the job, it is going 
to affect their pay.
    I don't know how you would have to go about eliminating 
that, but that is a big problem, I believe.
    Ms. Brown of Florida. What is your status now?
    Mr. Ehlenfeldt. I am just fired. I have not been offered 
any other jobs. After my first back surgery, I went and got 
good enough to pass the test for the physical ability test and 
went back to work for a couple of years. Then I was burnt, and 
they fired me, and that was it. So I was fired March 13th, 
2006.
    I work a part time job now, and my wife makes enough money 
to pay the bills. Thank God, she has insurance because they had 
cut my insurance. I had to pay 550 some dollars every month 
just to cover myself. I couldn't afford to do that, so she at 
least has coverage for me and our family.
    Ms. Brown of Florida. Yes, sir.
    Mr. Chairman, are we going to have another round?
    Mr. Oberstar. Yes.
    Ms. Brown of Florida. Okay.
    Mr. Oberstar. Thank you.
    The railroads have established hot lines for their 
employees to use. Are you aware of procedures?
    First of all, are you aware of the existence of a hot line, 
aware of procedures for calling and of what might happen if you 
do use that hot line or do you know of anyone who has used the 
hot line and what has happened when they have done?
    Mr. Tolman? Mr. Brunkenhoefer?
    Mr. Tolman. Yes, I have heard some war stories on the hot 
lines. When a particular individual reported an incident to the 
hot line, the very next day a manager approached him and 
accused him. What are you doing not working with us? You are 
going to do stuff like that.
    I mean the harassment and intimidation in the industry is 
very prevalent based on these stories. Until the railroads 
recognize that we have a problem and we need to address it by 
working together and cooperatively, these will continue. I 
don't even know which railroad that was in particular.
    It is a good idea to have hot lines, obviously, to call in. 
Confidentiality isn't always covered. I mean you can't always. 
People recognize each other's voices, et cetera, et cetera.
    The thing is the railroads, some of them recognize that 
they should change and have stepped up to the plate, but there 
is an awful big, big plate to step up to. That plate is a round 
circle, and when you are only doing a small percentage of it, a 
small percentage of the railroads or a little piece of it in 
one area, one geographical area or another, you are not going 
to resolve the problem.
    The CEO of any one of these major railroads could make a 
recommendation that we need to change this culture. However, 
the superintendent in ABC State doesn't know what the 
superintendent's directive is. The message doesn't trickle 
down. Until the message really trickles down from the CEO to 
the superintendent or the train master that adversely affected 
these individuals here, we are going to continue having this 
problem.
    Some of the railroads have stepped up to the plate, I said. 
One of the issues at BNSF, after going through this process, I 
was surprised that it even existed. They have a 72 hour soft 
tissue injury reporting. So if you get a back injury or a soft 
tissue injury, you have up to 72 hours to report it.
    You have to report it immediately, but you have up to 72 
hours if your knee feels better tomorrow. But if you say it 
initially, you are covered, so they won't fire you for not 
reporting the injury. Now that is an issue that should be right 
across the board unequivocally.
    CP Rail, terrific new culture there, they understand that 
we are doing things wrong. They understand that labor has a 
piece to offer here and understand that profits can be better 
for all of us. Growth can be better for labor unions. Growth 
can be better for the railroads if they move in those 
directions. Now those are the things that we need to do.
    Some of the other railroads have stepped up to the plate 
and listened to our general chairman, who have stepped up and 
said this guy has been harassing and intimidating on this 
particular property, and they fired him. Those are the things 
that have to be done to change the culture, and hopefully we 
get there, Mr. Chairman. Thank you.
    Mr. Oberstar. Thank you.
    Mr. Brunkenhoefer?
    Mr. Brunkenhoefer. Just two things, one is that for my 
particular union, nobody is perfect, but Norfolk and Southern 
has moved forward to try to help solve the problem, and so we 
don't want to condemn everybody all the time everywhere. There 
are some people that at least look like they have tried to take 
a step forward.
    On a carrier which I really don't want to name unless 
pushed to, I got a complaint from the field. I wrote a 
handwritten letter, faxed it to the vice president of 
operations. I said: Attached is information. This is wrong, and 
I know you are the kind of guy that is not going to tolerate 
this.
    So he sent it back a division. They fired that 
superintendent, and they fired the guy who blew the whistle. So 
it left a real good message. Yes, they took care of the 
manager, but they took care so everybody in that terminal knows 
what happens if you complain to the boss. Yes, the supervisor 
got fired, but the worker got fired too. So why have a hot 
line?
    Mr. Oberstar. That was the next question. While they have 
and profess to have policies, is there any disciplinary measure 
taken against managers and supervisors, demoted, fired, that 
the opposite as you just said applies to the workers?
    Mr. Cook, are you aware of any such. Mr. Tolman did mention 
that just a moment ago.
    Mr. Cook. Not on our railroad, Chairman Oberstar. In fact, 
with the action plan, they are encouraged to target, stalk and 
intimidate you until they do fire you.
    Mr. Oberstar. The CSX Safety Action Plan is what you are 
talking about?
    Mr. Cook. Yes, sir.
    Mr. Oberstar. It instructs supervisors to identify and 
target their five most ``at-risk employees'' for monitoring.
    Mr. Cook. Right.
    Mr. Oberstar. How do you classify that? How do you describe 
that?
    Mr. Cook. Well, I don't know how they----
    Mr. Oberstar. Does that qualify as harassment?
    Mr. Cook. Well, what they are going to do according to the 
terms of that plan is that you will not know that you are one 
of those at-risk persons, but if you get injured, you are going 
to be at risk. You are going to be one of the five.
    If you try to move to another terminal to avoid scrutiny, 
you are going to be placed on the new terminal's list. In your 
original terminal, there will be a vacancy, and they will add 
another bad actor. So they are going to keep a list of people 
that they are going to target.
    Mr. Oberstar. It sounds to me like the old days of 
blackballing in the iron ore mining industry.
    Mr. Cook. Yes, sir, it does.
    Mr. Oberstar. They have a list. If you are an at-risk 
person, you don't know it. It doesn't take long before someone 
has reported what you said at the pool hall or in the barber 
shop, and then you are out.
    Mr. Cook. That is right.
    Mr. Oberstar. Ms. Fallin, any questions?
    Ms. Fallin. Thank you, Mr. Chairman.
    I just came into the meeting, so I missed out on a lot of 
the discussion, but I was interested in some of the comments 
made about the harassment and intimidation as I have just heard 
a little bit of the testimony. I guess not knowing a lot about 
this issue because I missed part of the testimony, but I would 
think that the union leadership might be able to protect 
against some of the harassment and intimidation.
    Now I don't know how the system works, but is there not a 
better way for the union membership to be able to protect the 
employees once they are a member of that group?
    Mr. Brunkenhoefer. There is an expression. I come from 
Houston. It is called you can beat the rap, but you can't beat 
the ride which means in the inner city that they can arrest 
anybody and take them to the police station.
    In the case of what we have to do is when we have an 
employee, it takes any place from one to three years to get 
them before a tribunal, and so you are working with a person 
who is injured. You are working with a person who is vulnerable 
with having bills come to. You are working with a person that 
will be glad to come back after a very short period of time, 
almost anytime, because the foreclosure notice comes in the 
mailbox long before we can get the hearing done, and so that 
delay, it works against a solution.
    Now if you get down to the end, you may win. But by that 
time, you have probably compromised. The cases that we have, 
that we end up having to go all the way through the process, 
those are by far our weakest people that have no hope because 
if they have any hope at all, if you will go back and sign a 
document that says, gee, it was all my fault, your house note 
is paid that month. Your kids have dental care.
    So the process is so strung out that it works against us, 
but we try the best we can.
    Ms. Fallin. How can we streamline that process where it 
doesn't take one to three years?
    Mr. Brunkenhoefer. Well, if I can kind of move off, we 
would like to get the root of what the issue is.
    We believe that the carriers have an award called the 
Harriman Award. This is an award they give to themselves that 
is based on FRA documentation, but it is garbage in, garbage 
out. The railroads report to FRA. Then FRA takes those same 
numbers that they have and say you are the best railroad based 
on the numbers that you gave me.
    Then you are able to go to Hartford and go before your 
insurance people and say, I am a safe railroad and I am an 
award winner. The difference between the premiums that they 
have to pay and the premiums that the best railroads have to 
pay get incentivized, the process by which it goes back then 
down to the line managers who, at not all railroads but at some 
railroads, are given again once a situation of a quota.
    From Tulsa to Dallas is my territory. I live in Oklahoma 
City. I get the boss who sits down and says, you get five 
injuries, you are okay. If you get a sixth injury in your 
territory, we are going to whack you $10,000 off your bonus.
    And so, that is supposed to be your incentive to go out and 
enforce safety. Instead, it is our belief that it is an 
incentive to cover up. The process works to the advantage, that 
to us, it is no different than an Enron, that you get bonuses 
for the trades that you didn't do.
    This case is there is a tremendous amount of pressure for 
the guy who is also a supervisor trying to raise kids and pay 
college and all. Over here is $10,000, and over here is an 
employee that if I can talk him in whatever method out of 
filing that report, that is my kid's college education. That is 
Norman or Stillwater or wherever.
    So they become incentivized, and so they are put in a bind. 
In other words, I don't want to maybe not report, but if I do 
report that he is injured, then I am not going to get my money. 
It is layer upon layer.
    It is not one simple thing that says it is an interpersonal 
relationship. If you work for a small company, the odds are you 
have a very good relationship with your employees and know them 
at first hand. So you know which ones are good and which ones 
are bad.
    But when you work for somebody that has 50,000 employees, 
the process is significantly different. So the person in 
Oklahoma City is really taking orders from Chicago, and to me 
that is part of the problem.
    What we have to do is take the incentives out of the system 
that rewards what I call fraud and reward. The guy who is the 
biggest fraud gets the biggest reward, and the guy who tells 
the truth gets his pay cut several thousand dollars. The 
incentive ought to be who reports the most and who gets those 
situations corrected. Instead, we punish the ones who tell the 
truth.
    Ms. Fallin. Okay, thank you very much.
    Mr. Oberstar. Thank you. I think that was a very revealing 
response.
    Ms. Brown, the Subcommittee Chair.
    Ms. Brown of Florida. Thank you.
    I want to change the subject just a little bit, but before 
I do that, Mr. Ehlenfeldt, I want you to give us your resume. 
We are going to spread it around because I think we can do some 
employment here. He is not working. Somebody is going to offer 
him a job hopefully.
    Now I have a question for Broken Rail. You and I had a 
little talk in the hall, and I want you to know that I am very 
concerned about the influence that the hedge funds are trying 
to have over the railroad industry and the way it operates. If 
hedge funds, like the Children's Investment Fund, were to get 
their way, they can tell what would happen to the railroads' 
ability to make capital investment and safety improvements.
    In the Brotherhood of Locomotive Engineers and Trainmen, 
there is an article, and it quotes and the Times-Union also 
reported that they, that the hedge funds caused this Dutch bank 
to break up. While the investors got money, we lost 550 jobs in 
Jacksonville, Florida.
    I guess my question for you, do you think that hedge fund 
investors care anything about union workers or anything other 
than how they invest their money?
    Mr. Brunkenhoefer. I think they care as much as Michael 
Ward does.
    Ms. Brown of Florida. Now Mr. Ward is not here to defend 
himself.
    Mr. Brunkenhoefer. Neither are the hedge funds.
    Ms. Brown of Florida. I will meet with them, but I ask you 
and perhaps you are not going to answer my question.
    Mr. Brunkenhoefer. I will be glad to answer the question.
    Ms. Brown of Florida. Well, answer it.
    Mr. Brunkenhoefer. Yes, ma'am. The hedge funds are 
essentially about the governance of a corporation. It is not 
unique to CSX that people feel that the current management is 
not doing well. There is a term that is used some of the time. 
It is called greenmail, to get a settlement to make the hedge 
funds go away.
    Our particular problem involves only one employer, and that 
is one in your district. They have led us to believe, through 
over a long period of time, that they do not particularly want 
the members of our unions to be their employees. They have been 
rewarding Mr. Tolman's union with what we believe are jobs. He 
will disagree, and I will have a respectful disagreement.
    So we have tried to work through the issue. In the process 
of wanting to work through the issue, we have been met by 
silence. We don't talk, and it is not us that is not talking.
    So we have somebody that comes in and says, we would like 
to talk to you. We would like to have dialogue with UTU, and 
let's see about changing management in such a fashion to get a 
management in place that wants to have dialogue with us. We are 
shut out of the process.
    Ms. Brown of Florida. Okay. My question to you, and Mr. 
Oberstar constantly raises this issue all the time. It is very 
important that we know history. My question for you is when it 
comes to the hedge funds because they have come in and 
destroyed 550 jobs in Jacksonville, Florida. My question to you 
is do you have any information how hedge funds view unions, 
period?
    Mr. Brunkenhoefer. It depends on the hedge fund. I know 
that I had lunch with a fellow by the name of John Snow, and 
Mr. Snow and I had a lengthy conversation in a friendly way 
about UAW and Chrysler and their next contract. Mr. Snow also 
leads a hedge fund.
    Some of them are horrible, horrible. Some of them sit down 
at the table. That is how I want to say Weirton Steel was 
saved. There are other groups, and so it will depend, hedge 
fund by hedge fund.
    Our circumstance is we have a group of people who will talk 
to us. We have another group of people who will not talk to us. 
I think it is kind of automatic that when that happens, you are 
going to turn to someone who wants to sit down and have a 
conversation with you, and so that is what is going on.
    Ms. Brown of Florida. Well, I think conversations go both 
ways.
    Mr. Brunkenhoefer. Yes, ma'am. We will be more than happy 
to sit down and talk.
    Ms. Brown of Florida. All right. I yield back, Mr. 
Chairman.
    Mr. Brunkenhoefer. I would like the privilege to come to 
your office and listen.
    Ms. Brown of Florida. I don't have any other questions for 
this panel. Does anyone else in this panel want to make any 
closing remarks?
    Yes, sir. I am sorry. I didn't have a question for you, but 
you wanted to make a comment.
    Mr. Jungbauer. If I could, yes. There are a couple other 
things that I think would be nice to be addressed.
    One is what is called the availability policies that a lot 
of railroads are putting into place. What these are is they are 
trying to have quotas for people to work a certain number of 
days, a certain number of hours. The real problem is employees 
that want to go back to work after they are injured and if the 
railroad says if you don't work X number of hours, you are not 
an employee anymore. Now what kind of a rehab program is that?
    You ask the question, can unions do anything about it? If 
they won't talk to the unions. I have people I have 
represented, and we have said to union people, can you do 
anything about it? BNSF says they will not talk about 
availability policy. They won't do it. They like it. They won't 
talk about red-green that we talked about before.
    The things that we are finding out, these abusive programs, 
we have to get court orders or have whistleblowers give them to 
us to find out about them. So it is really frustrating to try 
to represent folks and help them to get better, help them to 
move on when these carriers are so mean to them, so rotten.
    Ms. Brown of Florida. In closing, what do you recommend 
that you think needs to happen to improve the system?
    Mr. Jungbauer. Well, number one, I think that passage, the 
bill that has passed the House with Section 606 and it needs to 
be passed by the Senate. I would hope that this hearing, if you 
can get the message to the Senators, I can't imagine any 
Senators out there saying I am in favor of harassment. Go run 
on that next term.
    They shouldn't be in favor in harassment. They shouldn't be 
in favor of carriers saying we want the right to harass our 
employees to prevent them from getting medical care. So that is 
number one.
    Number two, we have to see how well the----
    Ms. Brown of Florida. Excuse me. So you are saying step one 
would be to pass the safety bill?
    Mr. Jungbauer. Yes.
    Ms. Brown of Florida. Okay.
    Mr. Jungbauer. Definitely.
    Ms. Brown of Florida. You think there are provisions in 
there that will strengthen the problems that we are discussing 
today?
    Mr. Jungbauer. There are some. With regard to the employees 
who are denied medical care, yes. With regard to other 
employees, it is the previous bill that can work.
    What I am worried about, frankly, is that you have a very 
short statute of limitations, 180 days, and if you have to turn 
your report into the Secretary of Labor, what if the Secretary 
of Labor doesn't want to help? Are you left of limbo?
    I am not sure of that. I have to go back and look at the 
bill. So I think you may need to look one more time in another 
session if this isn't working. I would hope, though.
    The last thing I would say is if the members of you, when 
you talk to carrier officials, ask them, will you promise us 
today that you will go home and you will eliminate these 
programs of harassment? Just promise us today that you will do 
that.
    I think that would be because they will listen to these 
folks. See, if you passed bills, they would go home and say, 
fix it. But they are not going to fix something unless they 
know what the sense of Congress is. We need to know the intent 
of Congress. Once we know that, they will listen, the courts 
will listen and everything will be safer.
    Thank you.
    Ms. Brown of Florida. Sir, thank you very much. I assure 
you I don't believe one of them will tell me that they are 
doing what you are suggesting.
    Mr. Jungbauer. As long as you ask them the question, that 
is good.
    Ms. Brown of Florida. Thank you.
    Mr. Oberstar. I want to thank this panel for your candor, 
your straightforward, heartfelt testimony.
    I will affirm that our Section 606 in the Rail Safety Bill 
goes a long way to addressing the issue of harassment, gives 
new authority to the Federal Railroad Administration. It was 
language that was not adopted idly or easily. It was thoroughly 
discussed, debated, negotiated with the minority on the 
Committee, and we have a consensus bill. That is why it passed 
with such an overwhelming vote in the House. I hope the Senate 
will act upon it.
    I want to thank again the panel for your testimony today. I 
think it is very illuminating.
    We will dismiss this panel and call the next panel: Mr. 
David Brown of CSX, Mr. Mark Schulze for BNSF, Mr. C.J. 
Wehrmeister of Norfolk Southern, Mr. Robert Grimaila for the 
Union Pacific, Ms. Faye Ackermans for the Canadian Pacific, Mr. 
Hamberger and Mr. Sherman Joyce, President of American Tort 
Reform Association.
    I ask all the witnesses to stand while Mr. Miller gets your 
names out there for you and your water. Raise your right hand.
    Do you swear that the testimony you are about to deliver to 
this Committee will be the truth, the whole truth and nothing 
but the truth, so help you God? Thank you.
    I want to say to this panel that you have been very patient 
throughout this long day. We didn't anticipate being here, 
starting with this panel at nearly 4:00, but that is the way 
the House floor works. You have had an opportunity to hear all 
the preceding testimony, and now is your opportunity to 
respond.
    We will start with Mr. Hamberger.

      TESTIMONY OF DAVID BROWN, VICE PRESIDENT AND CHIEF 
  TRANSPORTATION OFFICER, CSX CORPORATION; MARK SCHULZE, VICE 
   PRESIDENT OF SAFETY, TRAINING AND OPS SUPPORT, BURLINGTON 
     NORTHERN SANTA FE CORPORATION; C.J. WEHRMEISTER, VICE 
      PRESIDENT, SAFETY AND ENVIRONMENT, NORFOLK SOUTHERN 
 CORPORATION; ROBERT GRIMAILA, SENIOR AVP, SAFETY, ENVIRONMENT 
     AND SECURITY AND CHIEF SAFETY OFFICER, UNION PACIFIC 
CORPORATION; FAYE ACKERMANS, GENERAL MANAGER, CORPORATE SAFETY 
AND REGULATORY AFFAIRS, CANADIAN PACIFIC RAILWAY; ED HAMBERGER, 
 PRESIDENT, AMERICAN ASSOCIATION OF RAILROADS; SHERMAN JOYCE, 
          PRESIDENT, AMERICAN TORT REFORM ASSOCIATION

    Mr. Hamberger. Thank you, Mr. Chairman. I do appreciate it.
    Mr. Oberstar. Who, I might say, does a superb job on behalf 
of the railroads as the President of their association. He is 
very attentive. He attends these hearings. He is learning to 
develop a new set of iron pants.
    Mr. Hamberger. Yes, indeed. Speaking of which, I want to 
thank you and Chairwoman Brown and Congresswoman Fallin for 
being here as well.
    Notwithstanding the fact that it is not 1992, I do want to 
emphasize that these are good, honorable, wonderful people who 
do their job every day to try to make this industry safer, and 
we appreciate the opportunity to be here and to, as you put it, 
tell our side of the story.
    You opened the day today, Mr. Chairman, by talking about 
your father and his commitment and your commitment to safety, 
and we share that focus on safety. For railroads, operating 
safely is not an option; it is an imperative.
    Railroads are currently at the forefront of advancing 
safety from a technology standpoint as well as an operational 
standpoint, and the overall U.S. rail industry safety record is 
excellent. In aggregate, 2006 was the safest year in the 
history of the industry, and 2007 is on track to be even 
better.
    According to the U.S. Department of Labor, railroads today 
have lower employee injury rates than other modes of 
transportation and most other major industry groups including 
agriculture, construction, manufacturing and private industry 
as a whole. We have an employee injury rate well below those of 
most major foreign railroads.
    Let me just get right to a couple of themes that have been 
running through this hearing today. The first one is the claim 
that railroads intimidate and harass rail employees when the 
employees are notifying the FRA of an injury or illness or when 
reporting a hazardous condition. Likewise, it has been claimed 
that railroads regularly and as a matter of course deny, delay 
or interfere with medical treatment given to employees. These 
claims are not accurate.
    Let me be clear. Railroads reject the use of harassment and 
intimidation against their employees and agree with your 
opening statement, Mr. Chairman, that it is just not right that 
an injured employee is not given immediate medical attention. 
That violates FRA regulations. It violates internal operating 
procedures. It violates the internal regulations and safety 
plans of each of these railroads. There is a zero tolerance 
policy within the industry for violation of these policies.
    Now my colleagues on the panel will describe in more detail 
the many programs and initiatives the individual railroads have 
established to ensure accurate reporting of workplace injuries 
and timely treatment of injured employees.
    Of course, no industry, especially one with some 185,000 
employees, is completely free of mistakes or transgressions, 
and therefore my colleagues can also attest to the fact that 
swift disciplinary action will be taken against any supervisory 
employee who withholds or interferes with medical care to 
injured employees or who intimidates and harasses employees.
    The second theme running through the hearing today is that 
we need to establish a culture of safety through cooperative 
relationships with our employees and not a command and control 
environment. At the outset, I think we have to agree that any 
organization has to have some sort of command and control. 
Given the danger of freight railroading, that has given rise to 
very detailed rules and the need for meticulous adherence to 
those rules.
    The safety of the individual employee, his or her fellow 
employees on the job and, of course, the communities in which 
we operate, given the materials that we are forced to haul 
through those communities, demand adherence to strict operating 
safety procedures. At the same time, there is a need for 
cooperation and collaboration to get everybody involved, to get 
the bottom of safety issues and get to the root cause of safety 
problems.
    Each of our railroads has a myriad number of programs in 
place in cooperation with labor and is striving to reach that 
proper balance of collaboration and command and control. That 
is true in any environment, in any institution around the 
Country, in any part of the economy.
    There has been some talk about the Federal Employers' 
Liability Act, and I would be remiss if I didn't finish by 
mentioning it myself. This 99 year old statute serves as the 
railroad industry workers' compensation system.
    The vast majority of employees in the United States are 
covered by, as you pointed out, Mr. Chairman, no fault worker's 
compensation systems where workers are compensated for work-
related injuries regardless of the fault; not so for railroad 
employees.
    In order to receive compensation under FELA, railroad 
employees must prove their employers' negligence caused the 
injury. If the employee's negligence is found to have 
contributed to that injury, compensation is reduced 
accordingly. Under FELA, when a rail employee is hurt on the 
job, he or she and the railroad become adversaries, where each 
side is incented to blame the other for the injury.
    From a safety perspective, nothing could be more 
counterproductive. This adversarial relationship breeds 
mistrust, hampers and delays investigations and fosters the 
blame game that you talked about earlier, Mr. Chairman, rather 
than the collaborative approach that we want to see, where the 
employees and the railroads can sit down and address the root 
cause of accidents or near accidents.
    Now I don't care how many of these cases go to trial or how 
many of them get settled or how many of them hire lawyers. That 
is not the point. The point is the adversarial relationship 
that is inherent in a negligence-based worker's comp system.
    It is something that I think you could learn a lot about, 
frankly, from Faye Ackermans, and I hope you will ask her to 
talk to you about the difference that she lives with every day 
because, of course, she operates both north of the border in 
Canada where there is a worker's comp system that is not 
negligence-based and, of course, they operate major mileage 
here in the United States under FELA. I can't get into it, 
obviously, but I hope you will take the time to ask her what 
difference that means in the culture of each of those 
operations in Canadian Pacific.
    My time is up. I do want to thank you for staying here 
today to listen to these men and women who have come here to 
talk about the effort that they put in every day to make our 
industry safer and thank you for everything you do to help our 
industry as well.
    Mr. Oberstar. I thank you, Mr. Hamberger. Was there 
something else you wanted to add in your opening? Your time 
really has not expired.
    Mr. Hamberger. I appreciate that.
    Mr. Oberstar. The five minutes has gone but if there is 
more.
    Mr. Hamberger. These are the experts, and I would prefer to 
yield back the balance.
    Mr. Oberstar. Okay, thank you.
    Mr. Brown.
    Mr. David Brown. Mr. Chairman and Committee Members, thank 
you for this opportunity to address this very important matter.
    I am David Brown, Vice President and Chief Transportation 
Officer of CSX Transportation. My responsibilities include 
ensuring a safe operation on CSX's 23-State system. I have over 
26 years experience in the railroad industry. I have been with 
CSX since May of 2006 and have considerable experience with 
railroad operations and safety reporting protocols.
    I would like to discuss CSX's safety programs, training, 
technology and capital investments that we have made to make 
our railroad even safer and especially our parallel commitment 
to the fair and ethical treatment of all of our employees.
    First, a little bit about recent safety improvements 
because we are proud of what we have accomplished: Our managers 
and employees are expected to perform their work and interact 
with each other consistent with our core values, very important 
to us, and they include safety. One injury is one too many, and 
our ultimate goal is an accident-free, injury-free workplace.
    Our employees, through safety programs that I will talk 
about in a minute, are achieving great success. For example, 
FRA reportable train accidents have improved 44 percent since 
2004. Human factor-caused train accidents--these are the 
accidents caused by human error--have improved 56 percent since 
2004. FRA reportable injury rates have improved 46 percent in 
that same period. During the first nine months of 2007, 149 
fewer employees on CSX were injured than during the same period 
of 2006.
    CSX employees are delivering service more safely and 
successfully than ever in our history. CSX safety improvements 
do not mean we are satisfied. To reach our safety goals 
requires continuous improvement, and we want to send every 
employee home in the condition in which they report to work.
    We have a variety of key programs that support continuous 
safety improvement. These programs include management-labor 
safety committees at the local, at the division, regional and 
system levels. Training on operating safety rules for our 
employees is key. We do root cause analysis of accident 
injuries to learn how to prevent them.
    Formal leadership training for supervisors and labor safety 
coordinators is ongoing, and full time labor safety 
coordinators at each of our 10 divisions are an integral part 
of our safety process. We have also enhanced safety through 
capital investments and improvements to our infrastructure.
    Also, we have an innovative program to handle rule 
infractions. Adherence to safety and operating rules is 
essential to maintain safe railroad operations. Improved 
compliance has been a key factor in the safety improvements 
that I mentioned earlier.
    The individual development and personal accountability 
policy, IDPAP, builds on our belief that the vast majority of 
our employees want to do the right thing and do their jobs in a 
professional manner day in and day out. Their heart is really 
in the right place.
    The policy states clearly that managers must provide fair 
and consistent treatment to all employees using alternatives to 
formal discipline wherever appropriate when an infraction 
occurs. For all but the major offenses, the policy provides for 
a progressive approach and includes a non-punitive opportunity 
to correct isolated instances of unsafe behavior.
    In recent past years, we have modified our policy to focus 
even more on education when an infraction occurs, so that we 
can move forward with improved performance.
    Let me be very clear. CSX is fully committed to the 
complete and accurate reporting of all workplace injuries and 
accidents, and we are equally committed to ensuring that no 
harassment or intimidation occurs that may limit reporting in 
any way.
    We will continue to focus on these important matters and 
have made changes in several areas. Training is ongoing for 
managers in the proper and timely reporting of injuries or 
accidents. We are also continuing to communicate our policies 
that clearly forbid intimidation or harassment of employees to 
prevent reporting or proper medical treatment.
    This training makes it clear that managers should not 
discuss reportable criteria with an injured employee or 
treating hospital personnel. They should not try to change a 
doctor's recommendation and should not discuss discipline or 
rules infractions when arranging treatment for an injured 
employee.
    We also have directed that internal investigations of any 
report of intimidation or harassment are immediately 
investigated. We have a zero tolerance policy, and we conclude 
that investigation within a 30 to 60 day time frame, depending 
upon the complexity of the incident. In addition, discipline 
where appropriate will be assessed within 30 days when a case 
is decided.
    CSX maintains an ethics hot line, as we heard talked about 
earlier today, that any employee, manager or outside party can 
access by calling a widely-known, widely-published toll-free 
number. This call then is received directly by or internal 
audit group, which investigates each and every call to the hot 
line. Some of those investigations have led to discipline 
against management and employees who have not followed proper 
protocols for reporting injuries or who have engaged in 
isolated instances of intimidation or harassment. Those actions 
have included dismissals, demotions, reductions in 
compensation, reprimand and coaching and counseling where 
warranted.
    I hope my comments are helpful to this Committee. We regret 
that any incident of intimidation or harassment has occurred 
with respect to injury reporting and pledge our continued 
vigilance to prevent future occurrences. CSX's core values 
state it best: people make the difference. And our employees 
are our most valuable resource.
    CSX would also invite the Committee to examine the 
overwhelming data related to the company's significant and 
sustained improvements in safety, service to our customers and 
re-investment into the rail infrastructure over the past few 
years. These results are evidence of a commitment to safe, 
reliable and efficient rail transportation.
    CSX is similarly committed to fair and equitable treatment 
of our employees. Throughout this period of continuous 
improvement, the company has worked to improve relationships 
with employees while fostering a safer workplace. That work 
will continue.
    Thank you.
    Mr. Oberstar. Thank you, Mr. Brown. We appreciate your 
statement.
    Mr. Schulze?
    Mr. Schulze. Thank you, Chairman Oberstar, distinguished 
Members of the Committee. My name is Mark Schulze, I am Vice 
President of Safety, Training and Operations Support for the 
BNSF Railway Company. In my previous position, I was general 
manager of transportation on BNSF's Texas division. Thank you 
for the opportunity to be here today.
    In my testimony to you, I want to make three key points. 
First, safety in the railroad industry has improved enormously 
over the years. That is not a product of managed reporting, 
that is a fact. Ten, 20, 30 years ago, more employees were 
getting hurt and there was more risk in rail accidents.
    Second, our railroad safety plans are important. At BNSF, 
we develop our safety processes with a thoughtful balance 
between employee empowerment and accountability. Railroading is 
and always will be a unique work environment. The factory work 
force stretches across vast distances. In many instances, our 
employees are independent operators, substantially self-
directed in their work. The routine work of handling heavy 
moving equipment in an outdoor environment makes adherence to 
uniform safety rules even more important. That adherence to 
safety processes and eliminating at-risk behaviors can be life 
or death critical.
    Third and most importantly for the purposes of this 
hearing, there is no place in our railroad for harassment or 
intimidation, neither for meeting safety goals nor for managing 
employees. BNSF has zero tolerance for harassment, intimidation 
or discrimination. Our position on that is clear.
    At BNSF, safety is our number one priority. A safe railroad 
aligns with every aspect of our corporate vision; return, 
corporate citizenship and being a valued employer. Our safety 
vision is to operate accident-and injury-free. This is about 
our employees going home after work injury-free, not about 
managing to statistics. We believe our vision is achievable, 
because we believe every accident is avoidable.
    All employees in BNSF are empowered to take responsibility 
for their own safety and the safety of their colleagues and our 
communities. They are expected to take that initiative to stop 
work processes when they feel safety may be compromised, and 
they do. Like all U.S. railroads, BNSF is required to comply 
with all safety regulations of the Federal Railroad 
Administration. We utilize a federally-mandated operations 
testing program to confirm that our employees are working 
safely and in adherence with those requirements. Tests under 
that program occur in the normal operating environment and 
require employees to show understanding of the concepts 
involved in our operating rules. The majority of our employees 
show clear demonstration of those requirements.
    To assist our employees in properly understanding those 
safety processes and policies and improve their performance, 
BNSF offers state of the art training. The vast majority of our 
employees are committed to working safely, and our safety 
program is aimed at respecting that commitment. However, with 
any human organization, a small percentage of employees are 
either risk-takers, distracted or do not maintain awareness of 
consequences for their actions. We are focused on identifying 
those employees who present risk to themselves and others 
through an employee review process.
    As with any solid risk management program, this process 
allows us to appropriately focus our safety resources. This 
employee review is a problem-solving process that does not 
impact an employee's employment record, nor is it in any way 
related to discipline. Coaching, training and understanding the 
employee's perspective are at the heart of this process.
    In a safety-critical work environment, accountability for 
compliance with safety processes matters. Our goal at BNSF is 
to consistently but fairly apply employee accountability so 
that the seriousness of safety rule violations is appreciated. 
Our accountability policies are designed to encourage all 
employees to be actively engaged in safe work behaviors and in 
ensuring a safe work environment.
    Formal discipline, whether an employee personal record 
notation, suspension or termination, represents a very small 
percentage of follow-ups to rules violations. The vast majority 
of rules infractions are handled through coaching and 
counseling by supervisors. BNSF additionally has alternative 
handling agreements that include training and other non-
disciplinary, non-punitive responses to identified or self-
reported rules violations in lieu of formal discipline.
    Lastly, BNSF's injury handling and safety reporting policy 
clearly outlines supervisory responsibility regarding injury 
reporting and medical treatment. Our injury handling and safety 
reporting has been communicated extensively to supervisors in a 
number of ways. Employees can report harassment or intimidation 
many ways, such as to the Federal Government, internal 
management or even an anonymous third-party toll-free hot line. 
All concerns are then investigated by appropriate personnel and 
reviewed by senior management.
    Taken together, we believe we have processes and procedures 
and a culture that rejects harassment and intimidation and 
promotes a cooperative approach to safety. Much of our safety 
program was developed in cooperation with labor unions over the 
years, and we will continue to improve our processes with their 
input and commitment to safety. In fact, General Chairman Pat 
Williams of the BLET was wanting to testify also at this 
meeting just to talk about the extensive labor cooperation that 
we do have, the general chairman, local chairman and local 
level.
    At the same time, we do not believe the management of 
employee expectations and accountability is harassment or 
intimidation. Thank you.
    Mr. Oberstar. Thank you, Mr. Schulze.
    Mr. Wehrmeister?
    Mr. Wehrmeister. Chairman Oberstar, Ranking Member Fallin, 
Members of the Committee, thank you for the opportunity to 
testify here today. I am Charles Wehrmeister, Vice President, 
Safety and Environment, of Norfolk Southern Corporation. My 
responsibilities include personal injury safety, highway-rail 
grade crossing trespasser initiatives, and environmental and 
hazardous materials training and response initiatives.
    At the outset, I would like to state unequivocally that any 
type of supervisory conduct which delays medical treatment of 
injured employees or has the effect of discouraging the 
reporting of accidents or injuries is absolutely prohibited at 
Norfolk Southern and is not tolerated. Safety at Norfolk 
Southern begins with our corporate vision, and that is to be 
the safest, most customer-focused and successful transportation 
company in the world.
    First, please note that I have identified safety at NS as a 
process. It is not just a program or a list of responsibilities 
neatly cataloged in a dusty three-ring binder. It is a living, 
breathing process. It is our culture, a way of life for a 
committed group of men and women 30,000 plus strong. Safety is 
the way Norfolk Southern people do business.
    It is also about prevention. Even before an injury occurs, 
our goal is to prevent incidents and injuries by being 
proactive rather than reactive. Safety has been an evolutionary 
process at Norfolk Southern, and we have developed in stages 
over the years from a very top-down process to mutual 
participatory safety and on now to an even higher level of 
safety awareness that I call voluntary safety, in which our 
people actually participate, just because it is the right thing 
to do.
    As a result of our employees taking ownership of their 
safety process, NS's people have earned the E.H. Harriman Gold 
Medal Award each year for the past 18 years. As you know, this 
award is presented to railroads for their outstanding 
performance in safety. In the last 7 of 11 years, an NS 
employee has also received the Harold F. Hammond Award, which 
is presented annually to an individual railroad employee in 
North America for outstanding achievement. The 2006 winner was 
Kenneth Cheek, a mechanical department employee from Bellevue, 
Ohio.
    At the Harriman ceremony this year in May, in a video 
presentation, Mr. Cheek talks about the commitment Norfolk 
Southern people have for each other and for their safety 
process. A copy of that transcript is on my expanded 
presentation.
    Norfolk Southern's people celebrate our safety success each 
year at a big expo and awards meeting, unique, I believe, unto 
our industry and perhaps all of American industry, usually held 
in March of each year. Chairman Oberstar, Ranking Member Fallin 
and Members of the Committee and staff, I would like to issue 
an invitation to you to join us and we would be truly honored 
to have you in attendance.
    The keystone of our safety process and injury prevention 
effort is our bedrock Six Point Action Plan outlined on page 5 
of my prepared statement. Our efforts are reinforced also by 
NS's strict adherence to our Internal Control Plan, adopted 
pursuant to FRA regulations, which prohibits all employees from 
taking actions to delay the receipt of proper medical care for 
injured persons. This ICP expressly prohibits any form of 
intimidation or harassment that would have the effect of 
discouraging the reporting of accidents or injuries. 
Furthermore, the plan imposes disciplinary action against an 
employee or supervisor who commitments any such harassment or 
intimidation.
    Some years ago, a joint United Transportation Union-Norfolk 
Southern task force was formed to review Norfolk Southern 
policies and procedures in this area. NS encouraged UTU to 
bring to our immediate attention any instance in which it 
believed an employee injury had not been handled appropriately. 
UTU has done so one to three times a year. Each time, we have 
conducted a thorough investigation. All supervisory officers 
involved, and in some cases, the employees bringing the 
complaints as necessary, were interviewed personally by Norfolk 
Southern's Executive Vice President of Operations and our Vice 
President of Labor Relations. NS believes this process has been 
constructive and the United Transportation Union has told us 
that it does, too, and that our investigations, they have told 
us, have provided thorough and honest responses to the issues 
we were asked to address.
    In many of the cases, Norfolk Southern determined the 
handling of the employee injury had in fact been appropriate 
and complied with company policy and our ICP. However, where we 
found that it had not, appropriate discipline was assessed 
against our supervisory officers.
    In conclusion, I would like to reiterate that Norfolk 
Southern Management indeed has zero tolerance for any delay in 
providing medical care. We have learned from our past mistakes, 
and I am personally convinced the message has gotten through to 
all levels of supervision. Procedures are in place to ensure 
that supervisors understand that an employee's health and 
safety are our first priority.
    Thank you very much.
    Mr. Oberstar. Thank you, Mr. Wehrmeister.
    Mr. Grimaila?
    Mr. Grimaila. Chairman Oberstar, Ranking Member Fallin, my 
name is Bob Grimaila. I am the Chief Safety Officer for Union 
Pacific Railroad, and I thank you for the opportunity to 
testify today.
    At Union Pacific, safety is our first priority. This means 
that ensuring every one of our 53,000 employees does their job 
in a safe manner and returns home safely every day. Our safety 
program is a commitment to a vision and process aimed at 
creating a total safety culture. Our goal is zero accidents, 
and we have systematic practices and policies for managing our 
programs and reporting. Unfortunately, accidents do happen 
sometimes. Our internal control plan, our ICP, and our safety 
policy specify how our managers are to handle personal injuries 
and the associated reporting.
    This ICP is posted system-wide and it spells out the 
complaint procedures available to all employees to report a 
potential violation of policy or an instance of suspected 
harassment. Reporting is done on a confidential basis and with 
the assurance of no retaliation.
    We are committed to complete and accurate reporting of all 
accidents, incidents and injuries arising from the operation of 
the railroad. UP will not tolerate harassment or intimidation 
of any person who seeks medical treatment or reports an 
accident. Disciplinary actions, up to and including termination 
of employment, will be taken against any employee who commits a 
violation of this policy. In fact, we have issued 61 cases of 
discipline and have dismissed 4 high level managers in just the 
last few years for violations of this policy.
    Today we are moving beyond the traditional command and 
control approach to safety. I will briefly describe three 
programs we have in place now at Union Pacific. First, as you 
know, we are required by the FRA regulations to test employee 
competency in our operating rules. I have covered our program 
improvements in my written testimony, showing that we have 
moved to a progressive system with a much greater emphasis on 
coaching and training, rather than discipline. In a process 
that was developed in partnership with our labor people, rules 
offenses are now regularly handled with coaching and training 
and employees gain credit for demonstrating rules compliance.
    In addition to gearing our testing program to favor 
constructive coaching, we are also working to share the day to 
day responsibility for safety management with our employees. 
Our total safety culture, or TSC, is a peer to peer safety 
engagement process. Its goal is to fundamentally change the 
safety culture at the railroad. TSC has employees watching out 
for each other in a manner that reinforces safe behavior, and 
in a voluntary and non-punitive way. It is a formal observation 
and feedback process where an employee will observe and comment 
on another employee's behaviors at work. They look for and 
identify and correct unsafe behaviors rather than looking for 
rules violations or taking exceptions.
    This is done without direct management involvement, but 
with full management support. Where this peer to peer concept 
has been implemented, it has produced dramatic safety 
improvements, as employees actively watch out for each other. 
Union Pacific's North Platte, Nebraska service unit is 
currently engaged in one of the most progressive safety 
programs in the history of the rail industry. We found that 
accidents are often preceded by close calls or near hits. 
Through a pilot program developed, again, with our unions and 
with the FRA, a confidential close call reporting system has 
been established. Employees are free to report a close call 
without fear of discipline. The data gathered is used to 
develop a safer operating environment. This means that safety 
information that would otherwise not be reported is now 
collected, and it allows the local team, labor and management, 
to identify and manage risk on a proactive basis. While this 
type of close call reporting system has become common in the 
airline industry, it is revolutionary in the rail industry. We 
are finding that it enhances partnerships, trust and 
communication across all parts of the organization.
    We will always need programs to ensure our employees are 
competent in the rules and that they can demonstrate safe 
behavior at work. We are working diligently to do this by 
creating a total safety culture with our employees. We are 
doing this in partnership with our employees. The programs I 
have mentioned today are evidence of steps we are taking to 
form a safety culture based on collaboration, respect and 
trust.
    That concludes my statement. I would be happy to answer 
questions. Thank you.
    Mr. Oberstar. Thank you very much. That is very 
enlightening testimony.
    Ms. Ackermans?
    Ms. Ackermans. Chairman Oberstar, Ranking Member Fallin, my 
name is Faye Ackermans. On behalf of the Canadian Pacific 
Railway, thank you for the opportunity to address this 
Committee.
    For the past decade, as General Manager of Safety and 
Regulatory Affairs, I managed the safety function at CP. This 
included train accident cause finding, FRA reporting, FELA 
claims, safety program development and delivery, operating 
rules and practices, regulatory and security oversight.
    While on the surface it looks like my job has been to make 
the railway a safer place to work, in fact my most important 
job has to been to change the safety culture at CP. I have 
concentrated on two areas: changing attitudes on how we deal 
with the mistakes people make at work, and putting processes in 
place to reduce the potential for human error to cause 
accidents.
    All humans make mistakes every day. At CP, we have 
systematically tried to understand how and where human error 
plays a role. We developed a world-class set of investigation 
tools, which we call the investigation of safety-related 
occurrences protocol. This protocol is designed to investigate 
all aspects of the work system, determine multiple causes of 
occurrence, determine appropriate and effective corrective 
actions.
    ISROP has improved the quality of both our investigations 
and our corrective actions. The impact of ISROP within the 
mechanical department at three locations in Canada is currently 
being evaluated by the Federal Railroad Administration . A 
final report is expected in 2008.
    You have heard today the railroads described as 
militaristic or command and control. In this culture, rules are 
created, people are trained to follow the rules, and when a 
rule is broken, punishment is required to ensure the person who 
broke the rule won't do it again. CP has been slowly moving 
away from this model. We have introduced an understanding of 
the human factor into our safety processes: how and why people 
make mistakes; what systemic changes can be made to avoid or 
trap errors. This has made us much more conscious of where 
processes may be vulnerable or where defenses may be lacking.
    This is a journey. The progress we have made is still 
fragile. There are wide disparities within CP on acceptance and 
use of this approach and the various tools that we have 
introduced. There is much more work to do. But we are trying to 
move from a culture that blames the individual who ultimately 
makes the final error in the chain of accident causation to one 
where we ask system-based questions; such as what defenses 
failed, how did they fail, and how can the system be made more 
resistant.
    However, we are not talking about a system free of 
accountability. Rather, we need to create a balance between 
necessary discipline and an environment where employees freely 
report incidents without fear of unreasonable, adverse 
consequences. This is what is known as ``Just'' reporting 
culture, based on the concept of justice. CP is actively 
pursuing the ``Just'' reporting concept in two ways. The first 
is the FRA-supported confidential close call reporting system, 
which you have just heard from Mr. Grimaila. The United 
Transportation Union, the Brotherhood of Locomotive Engineers, 
Teamsters, and CP management are partnering with FRA in this 
effort. We will be the second FRA-supported C3RS pilot site, 
and we very much appreciate the efforts the FRA has made to 
advance and support this program.
    Equally, we are pleased with the contributions made by our 
labor colleagues. C3RS holds great potential to improve safety 
in this industry.
    The second is an internal dialogue at senior levels of the 
operating department begun one year ago about the future role 
of formal discipline and how to change our discipline 
practices. We have sent senior staff from operations, safety, 
human resources and labor relations to educational seminars on 
``Just'' reporting culture. In early October of this year, we 
also introduced the topic to the top 125 operating and safety 
officers at our semi-annual safety conference. This effort I 
call a work in progress, don't know where it is going to lead, 
but we are looking for some answers.
    When accidents do happen, CP has policies and procedures in 
place, as required by FRA, for reporting personal injuries, 
train accidents and serious rules violations. These policies 
articulate whistleblower protection and consequences for both 
managers and employees of interfering with these reporting 
procedures. CP also has policies and processes to deal with 
unacceptable behavior or performance. Our positive behavior and 
performance development policy is designed to identify and 
change unacceptable performance behavior to recognize good 
performance and to acknowledge an employee's satisfactory 
achievement of change and development. Its focus is on coaching 
and improving performance.
    Where informal coaching fails to achieve the desired 
changes, formal coaching may be used. This step is intended to 
clarify responsibilities and confirm performance expectations. 
An employee who demonstrates success and consistently fulfills 
their responsibilities for 24 months is removed from the 
automatic progression to the formal discipline process under 
the collective bargaining agreements. If formal coaching fails 
to improve behaviors or technical job performance issues, the 
next step is formal investigation/discipline under the 
applicable collective bargaining agreements.
    Finally, I want to touch a bit on CP's safety performance. 
CP's vision is to be the safest, most fluid railway in North 
America. We are achieving results. In the past decade, train 
accidents have fallen by 61 percent and personal injuries by 72 
percent. Human factor train accidents on CP are currently about 
one-third the rate seen in the rest of the U.S. rail industry. 
CP's safety success is a testament to union-management 
commitment and involvement in hundreds of safety, health, 
training and business process activities. Safety is not a bolt-
on activity or afterthought. It is how we do business. Our 
employees recognize our efforts. On employee insight surveys 
conducted by an internal consultant every two years, safety 
gets high marks. Seventy percent of our employees agree or 
strongly agree with this statement: ``I feel that workplace 
safety receives appropriate attention here.''
    Safety culture or shared beliefs and values is the 
manifestation of the day to day practices that employees 
encounter as they go about their work. CP has been striving to 
create a more people-centric approach to safety. This is a long 
journey. Culture change takes a long time. But I believe we are 
focused in the right direction.
    Thank you.
    Mr. Oberstar. Thank you very much for your testimony.
    Mr. Joyce?
    Mr. Joyce. Chairman Oberstar, Representative Fallin, thank 
you very much.
    I am here today not as a railroad person. You have heard 
from a number of the leading experts on the railroads. I am 
here to talk about our litigation system. In particular, I 
would like to highlight some of the overarching challenges that 
we see within our legal system and how they have manifested 
themselves within the FELA, a sense about how this unique 
statute dealing with railroad employees and their employers and 
workplace injuries changes the nature of that relationship and 
how this Committee might improve the FELA or even consider 
replacing it with an alternative.
    Very briefly, and Mr. Hamberger touched on this, but prior 
to the enactment of the FELA nearly 100 years ago, all workers 
in this Country, not just railroad employees, faced almost 
insurmountable burdens to receive compensation when they were 
injured in the workplace. For railroad workers, however, the 
FELA in 1908 did make that better. It improved their status, 
and it was considered a progressive reform and helped them at 
that time.
    We believe, however, that that status as a progressive 
statute was, in fact, quite short-lived. Literally at almost 
the same time, workers compensation laws were adopted around 
the Country. To amplify the points made earlier, the FELA 
continues to be a fault-based system, requiring the proof of 
negligence on the part of an employer with respect to the 
injury of an employee. By contrast, there is no need to prove 
negligence in a workers compensation context. A worker simply 
needs to demonstrate that there was an injury, and that that 
injury occurred within the scope of employment.
    Now, workers comp systems are not perfect, and they are 
certainly not free of litigation. Litigation about what 
constitutes the scope of employment is not uncommon. We do 
believe that it is beyond debate, that workers comp is the 
clear trend in the law.
    Moreover, while the FELA allows for settlements, we heard 
discussion about that, at its core the FELA does something that 
is also, I think, quite significant and has been discussed as 
well. That is the creation of an adversarial relationship 
between employer and employee. The compensation mechanism under 
FELA litigation has several problems that I will mention very 
briefly.
    As a general matter, litigation creates delays. As a 
general proposition, it takes longer to compensate people when 
they go to court. That includes cases that may settle on the 
courthouse steps. Tort litigation also as a secondary matter is 
uncertain. Frequently we see in all areas that an award of X 
amount in one set of circumstances may be far less or far 
greater under identical circumstances in a different case.
    Last is efficiency. A recent study that we have reviewed 
finds that less than 25 cents out of every dollar expended goes 
actually to compensating injured parties.
    FELA's shortcomings, though, are not limited to those 
broader policy issues. No doubt, Members of this Committee have 
heard about some of the most egregious abuses in our civil 
justice system, the Milberg Weiss case over securities 
litigation, and Judge Janice Graham Jack down in Corpus 
Christi, Texas with some silicosis litigation. I won't go into 
details on these cases. They have a common theme, though, and 
that is that these lawsuits demonstrated that some small number 
of plaintiffs' lawyers put the interests of their own selves 
and their firms ahead of compensating any injured people. These 
lawsuits were driven for their benefit and not for the benefit 
of injured parties.
    We have seen in the FELA context, according to public 
records cases, a case where four employees at the United 
Transportation Union pleaded guilty to racketeering for 
accepting payments of as much as $30,000 from personal injury 
lawyers. More recently, we have seen out of West Virginia a 
case involving CSX, a plaintiff named Rodney Chambers and his 
lawyer, alleged to have committed fraud against CSX by 
submitting a medical report. That medical report was certified 
by a Dr. Oscar Frye. Dr. Frye has never been located and the 
address he gave in Huntington, West Virginia is fictitious. CSX 
is bringing a separate legal proceeding against Robert Gilkison 
and his employer, the Pierce Law Firm, which at one time was 
Mr. Chambers' counsel, at the time of the Dr. Frye episode. 
Interestingly, one of the co-conspirators' was a Dr. Ray 
Herron, who came under criticism as one of the doctors 
mentioned in the silicosis lawsuits in Judge Jack's lawsuit 
down in Texas.
    ATRA believes very strongly that it is important to 
recognize that the adversarial nature of employees in the 
railroad context is unique. As you consider both regulatory and 
litigation issues, that needs to be taken fully into account. 
We also would point out that in enacting compensation statutes, 
this Congress twice, under the Federal Employees Compensation 
Act, as well as the Longshore and Harbor Workers Compensation 
Act, has enacted reforms more akin to workers compensation, 
with its no-fault type structure.
    As you look at this situation and consider the interests of 
both management as well as employees, we strongly encourage you 
to weigh the distinctions between the no-fault systems that are 
out there and, what we believe, is an antiquated system: FELA. 
No system is so good that it can't be changed. We believe at a 
minimum it should be improved. We would be pleased to work with 
you on alternatives to the FELA.
    Thank you.
    Mr. Oberstar. Mr. Joyce, thank you. Do you have some 
suggestions? Do you have some written ideas for legislative 
changes to the FELA system, short of repealing it?
    Mr. Joyce. We would be happy to provide you some. I didn't 
come with any today, but if you are interested, we would be 
happy to develop those.
    Mr. Oberstar. For the record, I would appreciate having 
that.
    Mr. Brown, we have in our files the CSX Safety Action Plan 
for the southern region. It instructs supervisors to identify 
and target their five most at-risk employees. How is that not 
an intimidation program?
    Mr. David Brown. Thank you, Chairman Oberstar.
    That program was briefly in effect in 2006 on part of our 
system. I think you heard mentioned earlier, sometimes a well-
intended program can have unintended consequences. So as we 
began that program, looked at it, really were focused on the 
understanding that in any group of employees, on any team of 
employees, you always have some who have strengths and 
weaknesses. You want to focus on developing people around their 
weaknesses, so the team gets stronger.
    After we saw how that went into practice and the issues 
that came from that in terms of the allegations of intimidation 
and harassment, certainly not our intentions whatsoever, we 
quickly moved away from that. We put that program aside, it 
doesn't exist any longer.
    Mr. Oberstar. It is no longer company policy?
    Mr. David Brown. No, sir. It was only in effect for a few 
months until that sort of grassroots result occurred. We just 
said, well, let's move on from this. We are focused on 
leadership development. We are really focused on returning 
results through our leadership in a very positive, engaging 
type of coaching style leadership that some of my colleagues 
mentioned here today. That is where we are moving forward.
    Mr. Oberstar. We have heard a great deal of testimony, and 
we have a great deal of information in our Committee files as a 
result of inquiry and investigation done over a period of time 
about a points system. Now, Mr. Brown, you are moving away 
from, or have abandoned the action, Safety Action Plan, because 
of, as you call it, unintended consequences. How many of you 
still have in place a points system that rates employees with 
point rating up to a certain maximum where they then become a 
problem employee?
    Mr. Schulze. We do at the BNSF Railway. We have a system in 
place today.
    Mr. Oberstar. You do have a point system?
    Mr. Schulze. That is correct. It is the employee review 
process that I referenced.
    Mr. Oberstar. Mr. Wehrmeister?
    Mr. Wehrmeister. We do not. At Norfolk Southern, we 
endeavor to annually have a performance appraisal done between 
employee and supervisor in the privacy of an office, not on the 
train, not out in the shop, where in a pre-arranged fashion, 
the supervisor takes time to assemble materials that he or she 
knows that have to do with the employee. We meet with 
individuals who have not been injured and we meet with 
individuals who may have been injured to talk about their 
performance overall and how the supervisor and the employee 
might jointly improve. It has very positive results.
    Mr. Oberstar. You don't rate employees under this process 
by how many accidents they have had?
    Mr. Wehrmeister. We do not, no, sir.
    Mr. Oberstar. Or whether they have frequently been in 
accidents? You don't do that?
    Mr. Wehrmeister. We do not, sir.
    Mr. Oberstar. Mr. Grimaila, at UP?
    Mr. Grimaila. Mr. Chairman, we do have a tracking system 
for rules compliance. It does not include any points for 
tracking of personal injuries.
    Mr. Oberstar. How do you track the individual, then?
    Mr. Grimaila. Under the provisions of Part 217 of the FRA, 
we have an employee testing program for rules compliance, and 
we note the success or lack of success in their ability to 
demonstrate competency on the rules.
    Mr. Oberstar. But when an employee has an injury that is 
reported, you don't put a point alongside his name or a marker?
    Mr. Grimaila. That is correct, we do not use points or a 
marker that has anything to do with the personal injury, no.
    Mr. Oberstar. Mr. Schulze, what is the purpose of the point 
system at BNSF?
    Mr. Schulze. The employee review process, we believe, is a 
solid risk management process, somewhat modeled off other 
safety leaders in other industries. Dupont has an employee 
process, a little less formal than what we have. We believe it 
gives us a way to identify individuals who might be exhibiting 
at-risk behaviors, whether through human factor accidents, 
certain types of injuries or through rules violations.
    It is a non-punitive, non-disciplinary piece. It is where 
we can sit with the employees, go through coaching, counseling 
and additional training, whatever they need. Whatever might be 
distracting them or whatever help they might need.
    Mr. Oberstar. Each of you are denying the existence of what 
the employee panel said in fact exists.
    Mr. Schulze. Denying--what was that?
    Mr. Oberstar. The existence of a point rating system that 
finds and rates problem employees. You are denying what they 
said earlier, denying the existence of what they said earlier, 
is that correct?
    Mr. Schulze. No, when you first asked, I said we do, at the 
BNSF Railway, we do have a point system.
    Mr. Oberstar. Yes. But you are saying you don't use that to 
rate employees for punishment or use it for other purposes. But 
the employee panel said that is exactly what the railroads are 
doing, rating the employees and then finding them to be problem 
persons and to eventually be dismissed.
    Mr. Schulze. It is not part of their discipline. It is not 
on their employee transcript. It is a way to identify people 
that we might need to work with through, again, additional 
coaching, counseling, training, whatever they might need in 
order to----
    Mr. Oberstar. What happens under, how many points does an 
employee have to get to be subject to counseling?
    Mr. Schulze. Currently on the transportation side, it is 
89.
    Mr. Oberstar. Eighty-nine points. At that point you call, 
not you but the human resources person calls that employee in 
and counsels the person how to operate more safely?
    Mr. Schulze. The employee's supervisor would work with that 
individual. They would have monthly interviews, discussions 
that would take place either during the 6 month period or 12 
month period, depending on the tenure of the employee.
    Mr. Oberstar. Okay. We have a few more minutes before we 
will have to go and vote. Ms. Fallin.
    Ms. Fallin. Thank you, Mr. Chairman, and thanks to all of 
you for coming today and presenting your testimony. In my 
former State, I headed up a commission to reform workers 
compensation for our business industry in our State. My number 
one goal was to prevent the injury in the first place. That is 
my best form of protecting the workers, and helping to lower 
workers compensation cost or any type of injury cost in the 
workplace itself. So I was interested in your comments about 
how you have programs in place to allow injured workers to 
report injuries, or even to report any type of safety concerns 
or even potential mishaps that might occur on a job that can be 
at risk for injury.
    I was interested in the Chairman's comments about the point 
system and how you rank injuries and how you help evaluate 
different job classifications that might be at risk for injury. 
Just thinking back, as an employer myself who had maintenance 
workers who worked in one of the jobs I used to work in years 
ago, that I wanted to know who was at risk for injury, so I 
could prevent the injury in the first place. As I said earlier, 
it helps you to lower your costs on your insurance premiums and 
also helps protect your workers, which should be your number 
one goal, because that will help you as a business with your 
profit margins and with your employee relations.
    So I guess in listening to the comments about a point 
system or how you evaluate risky levels of professions within 
your railroad industry, why wouldn't you want to protect your 
employees and find out those different job skills that might be 
vulnerable to having accidents?
    Mr. Grimaila. There is no reason not to do it. In fact, it 
is incumbent upon us to understand that the person driving that 
train, perhaps hauling hazardous materials, is qualified, has 
demonstrated competency, and that we know they have a good 
working understanding of the rules. That is what we do with our 
testing programs. We need systems like that to keep track of 
and watch for risk emerging in that type of operation.
    Ms. Fallin. Are there any statements that were made by the 
previous panel that gave testimony that any of our witnesses on 
this panel would like to make comments on?
    Mr. Schulze. I guess I will take a couple. On one, on the 
bonus system, there was perhaps a hypothetical that talked 
about an employee that had operations between Tulsa and Dallas, 
and the employee said, or the supervisor said, you get five 
injuries, you get six, you lose $10,000 of bonus. I am assuming 
that could have been pointed toward our railroad, because we 
operate between those territories.
    We don't have an incentive compensation or a bonus 
structure anything like that. There is a portion of all 
management employees and a large number of our union employees 
that their overall compensation, a small percentage of it, is 
tied to safety. And that is tied to the overall corporate 
safety number. So the frequency ratio or severity ratio that 
the FRA tracks, whatever that is for the company, all 
management employees and a large number of scheduled employees 
participate at a certain level. It is not tied down to the 
individual local level how many injuries might take place on a 
local territory. So we would like to make that clarification.
    Ms. Fallin. Yes, Mr. Joyce?
    Mr. Joyce. There was discussion in a previous panel about 
how many lawsuits go to verdict, and whether that was unusual. 
Our experience across different areas of our civil justice 
system is that really very few do, in fact, go to verdict. I 
would take a little bit of issue with the idea that a case has 
to go to verdict to have a potential clogging effect. The 
reality is that a lot of cases go considerably pretty deep into 
the whole process before a settlement may be reached.
    And again, just coming back to the overarching point about 
workers compensation, I think there was a sense of, well, we 
are never going to get as much. The reality is that there is a 
certainty to workers compensation. It can always be adjusted. 
And the clear trend, as I discussed a moment ago, is very much 
in the employment context. That trend is clearly toward the no-
fault type of situation.
    Ms. Fallin. Let me follow up on that. I heard one panelist 
say on the previous panel that it took one to three years to 
get a claim settled. Do you have suggestions on how we could 
help injured workers get their medical care quicker and their 
settlements quicker?
    Mr. Joyce. Well, I think that the workers compensation 
system is quicker. It tends to be. We saw data from, I think a 
web site of a law firm that represents FELA claimants, saying 
that they take up to two years generally to bring, or 22, 23 
months to bring a claim. I think clearer, simpler processes, 
recognizing that there is a need to compensate someone. There 
are tradeoffs involved, obviously, and the potential higher 
awards that you can see through a court verdict are a 
consideration. But balanced against that is the need not to 
have to prove negligence on the part of an employer. I think it 
has been judged overall to be a pretty reasonable tradeoff.
    Ms. Fallin. Sir, did you have a comment?
    Mr. Wehrmeister. Thank you, Ranking Member Fallin. Yes, 
please. Reference was made on the previous panel by one of the 
gentlemen about an incident surrounding an incident on Norfolk 
Southern. For the record, I would like to point out that that 
happened some six plus years ago, and as that gentleman pointed 
out, there was indeed a mutual settlement amongst the parties 
and a confidentiality agreement was signed.
    Notwithstanding that fact, though, and for the benefit of 
this Committee, if it be of help to you, I have the tapes in 
hand that were spoken of. If deliberation on this matter 
requires your seeing the tapes, I would like to convey them 
today and/or provide them later with as many copies as may be 
necessary for the Committee.
    Ms. Fallin. Thank you very much.
    Mr. Oberstar. We will receive that for the record, and we 
are going to have to recess at this point. We have two votes, 
motion to recommit and a vote on passage, following which we 
will reconvene the hearing. You all can take a respite break.
    [Recess.]
    Mr. Oberstar. The Committee will resume its sitting with 
again, apologies to witnesses and to all in attendance for the 
interruptions. Little comfort to you, those are the last votes 
of the day and of the week. Doesn't change your lives any. It 
may change ours.
    Mr. Schulze, BNSF has a points system, which we described 
earlier, and you cited the maximum is 89 points. But within 
that system, as I understand it, it assigns 40 points to an 
employee for reportable injury, 5 points for a non-reportable 
injury. How did you come to this rating system? What is the 
value of 40 and what is the value of 5?
    Mr. Schulze. I am not entirely sure how the exact numbers, 
how we did come up with those. But I do know through the safety 
assurance compliance program that is joint FRA, labor and BNSF, 
in the early 2000 time frame, it was discussed. We used to have 
reportable and non-reportable injuries at the same level, point 
level. At that time, labor had a concern that that was going to 
put under the table those non-reportable, those first-aid type 
injuries. So we discussed through that process in the early 
2000 time frame, making the non-reportable point system lower.
    That is something that is currently under review. We keep 
looking at best practices and trying to improve it the best we 
can.
    Mr. Oberstar. I understand from one of your colleagues that 
had a point system and reviewed it and said it had unintended 
consequences that they are terminating it. Are you moving in 
that direction? Are you moving in the direction of terminating 
the points system?
    Mr. Schulze. It is not something that is under discussion 
right now. We are looking at refining it, trying to make it 
better. We believe it is a valuable tool. We are open for 
discussion to make sure it is the best tool.
    I have not heard any employee discontent about this. We 
regularly meet with labor, either safety coordinators, which 
are union appointed leaders, on each of our divisions, that 
BNSF pays for them full-time to focus on safety, either through 
our local chairman, general chairman that we meet with 
regularly. ERP has not been a system that they have taken much 
umbrage to.
    Mr. Oberstar. Well, you are certainly hearing from 
different employees than we have been hearing from since the 
outset of the inquiry into this matter. Clearly, they have told 
us that they don't report, they even fear discussing the points 
system for fear of retribution. I don't know of another 
industry that has, maybe some that do, but I have been engaged 
in industrial safety issues for a great many years, in mining 
safety issues, mining industry, a wretched record until there 
were a few strikes that shut the company down and shut down 
production lines, because of hazardous practices. And the 
industry changed.
    But establish a point system that moves an employee from 
green status to a red status and then according to reports that 
we have, if an employee gets hurt on the job, goes to the 
doctor, gets prescription strength Tylenol, the action goes 
unreported but the employee gets 40 points. It is a bizarre and 
byzantine system, don't you think?
    Mr. Schulze. The accident goes unreported? I am sorry?
    Mr. Oberstar. Yes.
    Mr. Schulze. And still gets--the injury goes non-
reportable?
    Mr. Oberstar. That is what they have told us.
    Mr. Schulze. And it still gets points?
    Mr. Oberstar. And it still gets point.
    Mr. Schulze. No, that is--that wouldn't take place. A non-
reportable injury under the current system is five points. And 
not all reportable injuries get 40 points. Say for instance, 
you were in a van accident----
    Mr. Oberstar. Can you think of a better way to manage 
relations with your employees than to give them a point system 
based on an injury?
    Mr. Schulze. It is just one process of many that we 
utilize. As we have discussed, safety is very important to us. 
We have a lot of processes and programs out there. This is one 
of them that we believe is a solid part of any risk management 
program.
    Mr. Oberstar. But if I were an employee who was subject to 
a rating system, for example, when I worked in a ready-mix 
concrete block factory, and because things were--accidents 
happen when a lot of things go wrong. Not always, but that is 
frequently. There was a lot of things going wrong, and I got my 
hand caught in the mixer blade, a mixer, big two-ton mixer. I 
ripped a fingernail off my finger and a lot of other things. 
Old Zip Rawley put me in his truck and rushed me into the 
hospital, not to the company doctor, because they didn't have a 
company doctor.
    But that would have been a reportable injury. Now, under 
your points system, if I had had this happen and I was worried 
about my job, I would have said, oh, hell, I will just shove it 
back and wrap some bandage around it and not report it.
    Mr. Schulze. But that is where, again, we make that clear 
distinction, this is not part of discipline, it is not part of 
the employee transcript. This is simply an opportunity to spend 
time with the employee, find out if there are any issues, take 
time to coach, counsel, train. It is a discussion. It is not 
harassment and intimidation.
    Mr. Oberstar. Well, that is the way it is seen, and that is 
what we heard from the previous employee witness group. And it 
seems that CP has moved away from, Ms. Ackermans' testimony 
reported, from a command and control culture of blame to a 
system based approached, in which there is an inclusiveness and 
an involvement that management and labor in emphasizing 
interior dialogue and positive behavior and performance. Have 
you looked at their system?
    Mr. Schulze. We regularly benchmark against all the Class I 
railroads. We believe our partnership with labor is very 
strong. Again, I mentioned the meetings we had last week with 
the safety coordinators, also some general chairmen. Next week 
again in Kansas City, I am meeting with the general chairman 
specifically to talk about safety.
    Mr. Oberstar. Will you talk to them about the point system?
    Mr. Schulze. I sure will, if that is something you would 
like.
    Mr. Oberstar. I think you should. I think it is giving 
railroad safety a bad name.
    Mr. Schulze. We will discuss it again.
    Mr. Oberstar. Do all of the railroads represented at this 
table have a hot line, confidential hot line? You are all 
nodding. For the record, they are all nodding. The record is 
not visual, it is verbal, so we will say yes.
    But one of the previous panel said, oh, when we call in, 
everybody knows our voice, they know who we are, it is not 
confidential at all. How can you assure confidentiality?
    Mr. Wehrmeister. I can only speak for our workplace at 
Norfolk Southern, Mr. Chairman. We have a number of multiple 
avenues or channels available to the employee. In our ICP, we 
outline that there are avenues, both through the FRA and 
through the labor organization, if an employee chooses to go 
that route. But additionally, to speak with their supervisor or 
to the system director of safety. And we outline the telephone 
number.
    We think that we have evolved a culture such that anonymity 
is not necessary. But in the event that there are some 
employees, and there well may be some in our workplace, who do 
believe that that is necessary, we have a completely 
confidential ethics hot line, a 1-800 number that employees can 
call in that is divorced from the rest of the operating 
department and is controlled by our internal audit department. 
All of that is published to our employees for their knowledge. 
Coincidentally, in this regard, in our workplace, we have an 
initiative that happens to be going on right now, an eight-hour 
safety training workshop that includes many modules and a great 
deal of training.
    But perhaps of interest to this Committee, one of the 
modules that is given, that is presented to all of our train 
and engine service people and dispatchers out in the field and 
the facilitators, perhaps, believe it or not, are agreement 
personnel, unionized personnel and a supervisor, teams of two 
who teach a subject that is called in this booklet and has its 
own slide presentation that goes with it, Intimidation and 
Harassment. This module, the entire booklet, in fact, the 
eight-hour training program, was built by three local chairmen 
and three assistant superintendents, field supervisors working 
in conjunction with the safety department. There were a few 
items, like security, that we just have to cover.
    But people themselves came up with the topics in that 
training program, our folks and their peers as well as their 
peers' supervisors, let folks know of the availability of these 
and what their reporting requirements are and what the 
supervisor is expected to do for respectful treatment in the 
event that an employee is in fact injured.
    Mr. Oberstar. That is a training manual for both 
supervisory personnel and line?
    Mr. Wehrmeister. This is for all of our agreement personnel 
for some 15,000 or 18,000.
    Mr. Oberstar. Will you leave that for the Committee?
    Mr. Wehrmeister. I would be delighted to, yes, sir.
    Mr. Oberstar. I would like to go through it.
    Chairwoman Brown.
    Ms. Brown of Florida. Thank you, Mr. Chairman.
    Mr. David Brown, would you believe that that is my 
brother's exact name, too, and he works at CSX? David Brown. I 
bet your checks are never mixed up.
    [Laughter.]
    Ms. Brown of Florida. I do have a series of questions. I 
know you all heard the other panel, and those were some horror 
stories. Can you respond to it? Also, expand more on what we 
can do to move the industry forward. I am very excited about 
the railroads and what could happen in our Country as far as 
the next 25 years. But we cannot have this culture that has 
existed in the past that the employees feel intimidated, this 
man was bleeding and he was afraid to say, take me to the 
doctor. It is hard for me to understand that.
    But I guess you have your life and your family and you 
think that you are going to lose your job, it may be a factor. 
So can you help me out here? We can start with Mr. Hamberger.
    Mr. Hamberger. Than you, Madam Chairwoman. I believe that 
H.R. 1 that was just signed into law in August provided for an 
additional parallel whistleblower protection through the 
Department of Labor. While I happen to believe that the current 
system provides plenty of access, this is yet another way for 
the employee to be protected if they do blow the whistle, so 
that there is not retribution, and if there is, that there 
would be punishment meted out to the railroad. So I think that 
that provides another layer of safety, if you will.
    I guess the other option, the other alternative I 
mentioned, just going back to the FELA issue, is just to ask 
the Committee to take a look at that and think about whether or 
not getting rid of that adversarial underlying negligence-based 
workers comp system might also lead to more collaboration and 
cooperation than the adversarial approach that that necessarily 
breeds.
    Ms. Brown of Florida. So you are saying that the way the 
system is presently set up, it is negative for an employee to 
report an accident?
    Mr. Hamberger. Well, I think, and I don't want to be 
incendiary here, but I do have a number of pieces of advice 
from lawyers to our employees. You have to remember that FELA 
is a fault-based statute. You must put something in your 
accident report to show that your accident was caused by 
something the railroad did wrong. Giving a statement can hurt 
your claim. You are not legally entitled to be compensated for 
your injury unless it was caused by the fault or negligence of 
the company. And this is the kind of advice and kind of system 
that fosters legal advice.
    But it is the system that leads to advice that you should 
not make any statements, either orally or in writing, as to how 
the accident occurred until you see your lawyer or union 
representative. So it sets up just an underlying conflict, 
instead of sitting down and getting to the root cause of, if 
there are three slip and falls, let's sit down and find out 
what is at the bottom of it. On our side, we are saying they 
are acting badly, and on their side, they are saying there is 
something wrong. It just doesn't lead to collaboration, to that 
culture change that Ms. Ackermans was talking about.
    The other thing I think that is going on is that each of 
the companies here is trying to move to a proper balance. As I 
mentioned, I think you have to have some command and control. 
At the same time, there has to be collaboration. I think they 
are all trying to find that proper balance for their particular 
company. So I think we are moving very much into a culture of 
safety.
    Mr. Oberstar. Would the gentlewoman yield?
    Ms. Brown of Florida. Yes, sir.
    Mr. Oberstar. You touched on a very important line of 
inquiry, a very important issue. If I understand your response, 
and the responses of other members of the panel, you are saying 
that the FELA creates this adversarial condition between 
employer and employee, that workers comp, which is essentially 
a no-fault system, and we have already discussed the FELA 
position, you seem to be advocating for a workers comp 
approach.
    But workers comp is managed State by State. Would you be 
willing to accept the development of a national workers comp 
system that applies only to railroads?
    Mr. Hamberger. Yes.
    Mr. Oberstar. I think we might be able to write one.
    Mr. Hamberger. We would have some thoughts on that to share 
with you, sir.
    Mr. Oberstar. Thank you.
    Ms. Brown of Florida. Thank you.
    Mr. Brown?
    Mr. David Brown. Thank you, Congresswoman Brown. Yes, I 
would say a couple of things. As far as progress we have made, 
what can we do, I think as I mentioned in my statement, we have 
made real progress. We feel very strongly about the positive 
progress that has been made, and we would reiterate the 
importance of the Committee looking into how that progress is 
occurring. Look at today's momentum, where we have come in the 
last three years and how that has occurred, and then working 
together how we are going to move forward.
    Just like Mr. Wehrmeister has mentioned, that sort of 
collaborative training that has been developed, certainly at 
CSX we have done the same types of programs, so that we sit 
down with employees and learn together, educate ourselves so 
that our employees are better educated. We have developed our 
leadership abilities to be more positive, more effective and 
engaging.
    Another area that I think is of particular concern to you 
is that we continue to build our performance financially, so 
that we can reinvest and make our railroads safer, through new 
technology, through improved infrastructure, through updated 
equipment and the things you have seen us doing here in the 
last several years. It is paying real dividends in terms of 
performance improvements, and it is our plan to continue that. 
Thank you.
    Ms. Brown of Florida. Would you just follow up, because as 
you heard the question that I asked earlier about the hedge 
fund, and in particular, they are trying to, what they are 
trying to do to the industry. How would that affect the 
railroad's ability, CSX in particular, for capital investment 
and safety improvements?
    Mr. David Brown. I am not sure I can comment specifically 
about the hedge fund's intentions, but I will just say that our 
railroad is getting to the point now where we are just able to 
make the kind of capital investments that we really need to 
make to progress into the future, not only to maintain and 
improve our current infrastructure, but importantly, to build 
capacity so that we can grow in the future. Anything that 
undermines that level of financial performance, the 
availability of those capital funds, will have a negative 
impact on our ability to move forward with safety, as well as 
serving the Country through safe rail transportation in the 
future.
    Ms. Brown of Florida. Mr. Hamberger, would you like to 
respond to that? Perhaps you have a broader picture.
    Mr. Hamberger. I do not have a comment on any specific 
hedge fund or private equity fund. I think on the one hand, the 
fact that private equity funds or private investors see the 
railroads as a place to invest is a good thing. I think from a 
policy standpoint, what this Committee needs to be cognizant of 
and aware of and take a look at is what is the goal, what is 
the aim of those investors? Is it to invest, as Mr. Brown just 
said, to expand capacity, to improve safety? Then in fact, that 
is a good thing. If it is not, conversely, I would think from a 
policy standpoint that it would be something that would concern 
the Committee.
    Ms. Brown of Florida. I think some of you others heard the 
response, some of those horror stories, and I think some of 
them were talking about some of your railroads. Can you respond 
to that?
    Mr. Wehrmeister. As far as intimidation and harassment?
    Ms. Brown of Florida. Yes, sir. And not reporting 
accidents.
    Mr. Wehrmeister. I think that overall, in our workplace, we 
have come to learn, with the collaboration that Dave Brown just 
mentioned, that discipline is education that makes punishment 
unnecessary. Now, does that mean that there will never be a 
disciplinary hearing again? Surely, it does not. But working 
collaboratively with, for example, the Brotherhood of 
Locomotive Engineers and Trainmen, and the United 
Transportation Union, and subsequently other labor 
organizations who have joined, we have a new discipline policy. 
It is a tribute to what can be done by working together, called 
the System Teamwork and Responsibility Training.
    What it pledges is something that perhaps did not happen in 
previous years to 2000 when this began. Again, other labor 
entities have come on since then. For example, it points out in 
policy fashion, employees will not be disciplined for failing 
to report an injury immediately if, as soon as the injury 
manifests itself, the injury is reported. We may not have done 
that in years gone by. Employees will not be subject to formal 
disciplinary hearing for sustaining an injury. It goes on to 
say, from time to time, there is a case that needs to be looked 
at, and the vice president in that group needs to approve that, 
so that we try to get to the cause of it.
    There is a steering committee that includes labor, and some 
of those folks are in the room today, from the START program or 
steering committee, and management as well, to guide it. In 
order to foster it, in order to proliferate it, virtually every 
quarter our executive vice president of operations takes it 
upon himself and does not farm it out to a designee, and goes 
along with the vice president of labor relations to bring 
together each division's local chairpersons, general 
chairpersons, representing the labor organizations, as well as 
local supervision, so that everybody is in complete 
understanding with where we are at and where we want to go, and 
they talk out issues.
    I hope that is responsive to your question.
    Ms. Brown of Florida. Yes, sir. Does anyone else want to 
respond?
    Ms. Ackermans. I would like to talk about your question 
about how would the industry move forward. I have had the 
advantage of working within two completely different safety 
structures. I see the weaknesses and strengths of both systems. 
One of the strengths of the Canadian system, when it comes to 
union-management collaboration is a requirement for the union 
participation in safety and health activities. They can't 
withdraw from safety and health activities. They are expected 
to stay at the table.
    What we have observed in the U.S. over the years is you 
will have a dispute over something else that happened in the 
workplace, and the reaction of labor, on occasion, has been to 
withdraw from the joint safety and health activities. That just 
brings that activity level to a halt. So there is a simple 
lesson that could improve safety here, is if there was 
mandatory participation.
    Ms. Brown of Florida. Do you have that in writing? Do we 
have that information?
    Ms. Ackermans. I am not sure if it was in my testimony or 
not. I can certainly give you citations for the Canada Labour 
Code where it exists.
    Ms. Brown of Florida. That would be very helpful for us to 
take a look at.
    [Information follows:]
    [GRAPHIC] [TIFF OMITTED] T8568.034
    
    Thank you all very much. Yes, sir, you wanted to respond?
    Mr. Schulze. I would just like to echo the comments that 
have come out. It has to be a collaborative relationship. We 
have discussed that before, the power is in, obviously, working 
together. We have certain agreements that are in place, whether 
it is alternative handling, which is non-disciplinary, non-
punitive. We are going to build upon those. In the 
collaborative partnership, it has to be personal. Everybody has 
to take this personally, that the employees are empowered and 
supervisors are engaged. It has to be done at the local level. 
That is where the power of safety is, at the local site safety 
teams. They are the ones who see the risk in a given area.
    Lastly, it has to be leadership driven. We have to heave 
leaders that, again, we stamp out any harassment or 
intimidation that takes place on the system. When it is 
identified, we need to address it, we need to confront it and 
address it strongly.
    Ms. Brown of Florida. Thank you, Mr. Chairman.
    Mr. Oberstar. Thank you very much. A very productive line 
of inquiry.
    How can you assure with such widespread operations that you 
are making every effort to identify front-line supervisors who 
are pressuring employees not to report? Some of you in your 
individual statements describe situations where disciplinary 
action was taken. Is there a consistency in how this issue is 
managed? How can you assure that actually it is being carried 
out?
    Mr. Grimaila. We believe that a consistent message 
throughout the organization, starting at the top, and making 
very clear what the expectations are, is the most important 
start. And that is what we have. The other thing is to be 
persistent. We have to continue to drive the message through, 
provide the training and examples, as Mr. Wehrmeister put out, 
and just stay after it with that. And demonstrate with our 
actions that what we are saying is what we are doing. That is 
the path we have taken right now.
    Mr. Oberstar. Does that suffice for the other three?
    Mr. Wehrmeister. Our eyes met. Mr. Chairman, in our 
workplace, part of our ICP is the declaration that we will 
audit our injuries both from a field perspective, if I may, 
those supervisors who control or have charge of the folks in 
the field. But we have another layer from our safety and 
environmental department of folks who go out twice a year and 
they audit the personal injury forms for reportables, 
accountables and first aid, and check it against our casualty 
claims files; in other words, if there is a payment to an 
employee, to ensure that we are not speaking from two different 
mouths. In other words, no injury report and there would be a 
payment. If we have a discrepancy, we certainly clear that up.
    Additionally, our general managers and superintendents are 
very active in ensuring that all of the right things are done 
with our reporting. FRA is very active and audits us at least 
once annually on a system basis. They don't just go through the 
reportables, they go through the accountables, the first aid, 
we put everything down in our workshop, and I know the other 
railroads do, too. They look at it all, even if it is not a 
reportable, per se.
    Mr. Schulze. I would say on the BNSF it is very similar to 
what each of these gentlemen said. We do cross-correlate data 
bases to ensure that we have all the information. We get the 
information from the field, what happened injury-wise. We get 
information from the claims department, much like what Mr. 
Wehrmeister is saying. And we also have medical department 
information. We correlate those data bases to make sure that 
they are all synched. If any one of them is out of order, we 
make sure that it is a reportable injury and we address it with 
a supervisor.
    Mr. David Brown. And similarly on CSX, pretty much an 
approach around our leadership style, our approach to 
leadership, so that it is a top-down message about the 
importance of being a positive, engaging leader. The fact that 
when you don't deal with facts, you can't create sustainable 
improvement. That is really what we are trying to accomplish.
    Self-auditing, we do look at our records, we audit 
ourselves. We also cooperate fully with FRA in any auditing of 
records. Our hot line produces, occasionally does produce a 
complaint. We investigate those fully, take the appropriate 
action. We have trained all of our leaders, all of our 
managers. That is an ongoing process.
    Obviously, there is some awareness around allegations of 
intimidation and harassment through the history that has led up 
to this hearing today. So we paid particular attention to make 
sure all of our leaders are aware of that and very much 
informed about all of the various issues that could be 
considered out of bounds. We made those boundaries firm and we 
expect our leaders to stay within them. Thank you.
    Mr. Oberstar. Were any of you surprised then by the 
testimony that was given earlier by the injured railroad 
employees? Did this come as a surprise to you? They described 
very thorough practices on your part?
    Ms. Brown of Florida. Mr. Chairman, will you yield to me 
for one moment?
    Mr. Oberstar. Yes, I yield.
    Ms. Brown of Florida. That young man at the end, Mr. 
Ehlenfeldt, who is fired and unemployed, what company was he 
working with?
    Mr. Schulze. He was with BNSF.
    Ms. Brown of Florida. Can you address that?
    Mr. Schulze. I am not sure how much I can address. That is, 
it is going to be under litigation in the next couple of weeks. 
So a lot of the facts will come out through the judicial 
system. I will say to some of it, we do have disciplinary 
policies that are generally progressive discipline. So the 
discipline that he was assessed for a certain event might 
trigger something differently for another person similar to, 
say, your driving record. I grew up in the State of Nebraska, 
you had 12 points, if you got to 12, your license was 
suspended. If you are at 11, got a speeding ticket and got your 
12th point, you would lose your license. If you were at 1 or 2 
and got a speeding ticket you wouldn't lose your license.
    Ms. Brown of Florida. But you indicated that the point 
system was not in place.
    Mr. Schulze. The employee review process?
    Ms. Brown of Florida. No, the Chairman asked you about the 
point system.
    Mr. Schulze. Yes. That is separate from the discipline 
process.
    Mr. Oberstar. Points are separate from discipline, he says.
    Mr. Schulze. Yes, the employee review process did not 
correlate to the discipline.
    Mr. Oberstar. Ms. Ackermans, can you describe for us the 
legal structure in Canada that governs on the job accident 
injury and treatment thereof?
    Ms. Ackermans. In Canada, the provinces each have workers 
comp no-fault systems. So they have adjudication rights over, 
did something really happen in the workplace or not. It does 
not go to the court systems as it does in the workers comp 
systems that I heard today, about the State systems. So the 
workers comp boards themselves adjudicate.
    Mr. Oberstar. So the railroad is subject to each separate 
provincial workers comp law?
    Ms. Ackermans. Right. And it is based on the province in 
which you reside. So your injury can happen in one province, 
but it is where you reside, that is where the resolution 
occurs.
    Mr. Oberstar. So if you live in Quebec and you are injured 
in Alberta, you have to go back?
    Ms. Ackermans. You wouldn't get that far in the railway 
system.
    [Laughter.]
    Mr. Oberstar. Yo have to go back to Quebec to be 
adjudicated?
    Ms. Ackermans. It is where you live. And of course, in the 
railway system, people don't travel more than a couple hundred 
miles from their home on the railway system. Most of the 
injuries occur in the province where you reside.
    Mr. Oberstar. Those are huge, sprawling provinces. The 
province of Ontario covers seven States.
    Ms. Ackermans. Just about. So given that, given also that 
the workers comp administration actually is different in every 
province, in some provinces the assessment is based on a 
percentage of payroll. In other provinces, it is based on your 
particular injury rate. In other provinces, it will be based on 
a full-blown assessment of the future costs and will be 
assessed, everything up front. Some of it is a pay as you go.
    So we have a myriad of systems that we work within. The 
reporting requirements may be different. They are similar in 
terms of what needs to be reported, but the timing is 
different. The lowest common denominator is 48 hours that we 
have to report a serious injury to a workers comp board in one 
of the provinces. So we made that our internal reporting 
target, is to try and get everything reported within 48 hours 
in order to meet that one provincial jurisdiction.
    Mr. Oberstar. Thank you.
    Well, I want to thank the panel for their testimony, for 
contributing a great deal of time and effort to the 
presentations that you have made. It has helped us to sharpen 
the focus. Mr. Joyce, we will expect written comments from you.
    Mr. Hamberger, it will be interesting to get your thoughts 
on a national workers comp type of system. And we will invite 
the brotherhoods to submit their thoughts on it as well.
    Certainly there are clear problems, Ms. Brown elucidated, 
as each of you and the previous panel said, resulting from an 
adversarial structure. On the other hand, there surely has to 
be a firm standard by which to measure. A point system, to me, 
is fraught with the type of internal problems that were 
reported by the previous panel. If the railroads and the 
brotherhoods could work that out amongst themselves, that would 
be the best outcome. But if not, then, as we have done in 
aviation and elsewhere, then it is appropriate for Congress to 
legislate.
    Mr. Hamberger. Mr. Chairman, if I might be so bold.
    Mr. Oberstar. The gentleman is recognized.
    Mr. Hamberger. Thank you. I think that we would be really 
pleased to sit down with the brotherhoods, I think, if you or 
your staff were sort of the----
    Mr. Oberstar. Mediator?
    Mr. Hamberger.--raconteur, that it would be very helpful to 
make sure that we sat down and moved forward. That would be a 
great service.
    Mr. Oberstar. We will explore that.
    Mr. Hamberger. Thank you.
    Mr. Oberstar. The Committee stands adjourned, with great 
appreciation to the witnesses.
    [Whereupon, at 5:47 p.m., the Committee was adjourned.]
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