CHICAGO — BNSF Railroad has responded to a federal class action from train unions arguing the company’s medical reporting rules violate federal law, saying the union's lawsuit would weaken railroad safety across the country.
The unions filed suit in Chicago in June contesting BNSF's medical rules, requiring a new diagnosis for a number of health issues and forcing employees to provide new medical information. The unions say the change, which was instituted in 2012, violates the Americans with Disabilities Act by requiring employees to certify they have not developed medical conditions that could adversely affect their ability to work safely, even in instances when they are not impacted by the condition.
On Dec. 13, BNSF responded with a motion to dismiss the complaint for improper venue. In the filing, the railroad also disputed its policies violate the ADA — “in fact the ADA allows BNSF to adopt even more stringent requirements” — and accused the unions of attempting to “weaken or eliminate certain of BNSF’s lawful safety policies and practices in ways that would make the railroad less safe for union members, other BNSF employees and the general public.”
The railroad noted the disputed policies “were created, implemented, administered and (in some cases) ultimately rescinded in Fort Worth, Texas,” home to BNSF’s corporate headquarters, including the medical department that would evaluate paperwork from employees looking to return to work. It challenged the decision to file the suit in Chicago under a general venue statute because none of the options covered by a special venue provision were applicable, BNSF said.
According to BNSF, it responded to worker concerns, presented through unions, and voluntarily withdrew the safety rule in question on March 29, 2012. The company then implemented “other policies and practices” concerning evaluation of employees looking to return to work following a “a medical leave of absence involving specifically identified medical conditions that could adversely affect their ability to work safely.”
The railroad said the court should dismiss the case because the policies in question were created in Texas, not Chicago. Further, although some employees were given notice of the changes at their primary workplace outside of Fort Worth, the relevant employment records are kept at BNSF headquarters.
BNSF said if the court won’t dismiss the complaint for being filed in the wrong district, it at least should transfer the complaint to the Northern District of Texas where it “could have easily been brought” in the first place and would be more convenient for witnesses and the parties.
“It is unclear at this stage whether various employees allegedly affected by the challenged practices would be witnesses,” the railroad said. “Even if they would be, however, there is no indication that they are concentrated in the Chicago area any more than other large areas where BNSF has operations.”
Plaintiffs include unions the American Train Dispatchers Association; Brotherhood of Locomotive Engineers and Trainmen; Brotherhood of Maintenance of Way Employees Division of the International Brotherhood of Teamsters; Brotherhood of Railroad Signalmen; International Association of Machinists and Aerospace Workers District Lodge 19; International Association of Sheet Metal, Air, Rail and Transportation Workers Mechanical Division; International Association of Sheet Metal, Air, Rail and Transportation Workers Transportation Division; International Brotherhood of Electrical Workers System Council 16; National Conference of Firemen & Oilers District of Local 32BJ SEIU; and Transportation Communications Union/IAM.
They seek judgment against BNSF, plus attorney fees and court costs, and are represented by attorneys Joel A. D’Alba and Ryan A. Hagerty of Asher Gittler & D’Alba Ltd., in Chicago; Kevin C. Brodar of SMART-TD in North Olmstead, Ohio; Michael S. Wolly of Zwerdling, Paul, Kahn & Wolly PC in Washington, D.C.; Richard Edelman of Mooney, Geen, Saindon, Murphy and Welch PC in Washington, D.C.; and Elizabeth Roma of Guerrieri, Bartos & Roma PC in Washington, D.C.
BNSF is represented by Thompson & Knight LLP, of Dallas, and LaPointe Law, P.C., of Northbrook.