BISMARCK — An ex-BNSF Railway worker claims he was fired because he blew the whistle on emergency brake failures for coal trains in North Dakota and testified that a co-worker was injured on the job due to hazardous conditions.
Michael Fink of Bismarck is asking in a federal lawsuit for back pay, lost wages and benefits, damages for emotional distress and other relief after the railway company let him go last year. He also wants his job back and up to $250,000 in punitive damages, according to the civil complaint filed Dec. 4 in North Dakota’s U.S. District Court against BNSF.
Fink was fired for dishonesty on April 5, 2019, in reporting how a switch, which allows trains to transfer to another set of rails, was damaged on Feb. 5, 2019, at the Jamestown, N.D., railyard, according to the complaint.
But Fink said he told the truth about the incident: His crew did not back into the switch but that possibly a maintenance crew damaged it before his staff arrived on the scene.
He alleges he was fired because he reported on Feb. 5, 2019, problems about emergency brake policy.
The complaint notes BNSF coal trains and empty cars were not properly braking during the winter months in 2017, 2018 and 2019. In one instance, a train broke in half as it went through Hettinger, N.D., about 60 miles south of Dickinson, N.D., near the South Dakota border. The emergency brakes did not engage, which allowed train cars to “freely and uncontrollably” roll through “several grade crossings in several towns,” the complaint said.
There were several inquiries about old control valves needing to be replaced when looking into the issue, the complaint said. Coal car valves have a life expectancy of 10 years, but BNSF used ones that were 20 years old despite being aware of the problem, the complaint alleged.
It wasn’t until 2019, when high-ranking officials from BNSF headquarters came in to investigate the emergency brake problems, that the company ordered trains with bad emergency brakes to not leave terminals until the old valves were replaced, the complaint said.
However, employees were told to implement a policy change that Fink said would prevent them from knowing if emergency brakes would work, according to the lawsuit.
"The impact of this policy change was that crews were being instructed to draw the train’s brakes to zero before separating a train, thereby leaving the crew in the dark as to whether the train would make a proper emergency brake application," the complaint said.
He told supervisors BNSF was “incorrectly and inappropriately” using the policy to mask braking problems, according to court documents.
“It is incredibly dangerous to BNSF employees and the public if trains do not go into emergency braking,” the complaint said. “It is likewise incredibly dangerous if train crews are operating trains without knowing if they have fully functioning emergency brakes.”
Several days after reporting the problem, Fink was on a coal train from Mandan, N.D., to Dilworth, Minn., when the rear end’s emergency brakes turned on, the complaint said. The front end's did not, so Fink had to stop the train with air and dynamic braking, according to the complaint.
Emergency brakes failed on another train in mid-February 2019 that Fink was operating from Mandan to Glendive, Mont., the lawsuit said. He offered to work on the brakes at a yard, but he and his crew were replaced, the complaint said.
The complaint also mentions his co-worker's federal lawsuit against BNSF. Cary Jurgens claimed hazardous conditions in Jamestown caused him to fall while walking on a steep, loose ballast covered by weeds in August 2017.
A BNSF attorney asked Fink to say in a deposition that Jurgens was injured before he fell, the complaint alleged. Fink testified Oct. 9, 2018, that the walking area was hazardous. Fink also reported to supervisors that he fell on the ballast two years before Jurgens’ accident, but nothing was done to fix it, the complaint said.
A federal jury found that BNSF was negligent and violated federal regulations, which resulted in Jurgen’s injuries. The jury awarded Jurgens more than $560,000 in June 2019.
During an investigation into his potential dismissal, Fink claimed BNSF was retaliating against him for testifying about Jurgens’ case, as well as his reporting of emergency brakes problems, the complaint said. The lawsuit also alleged BNSF tried to discredit Fink's testimony for Jurgens' trial by saying he was fired for dishonesty.
In a statement to The Forum of Fargo-Moorhead, the company said it is “committed to the safety of our people, our operations and the communities we serve.
“This is the foundation of our company, and we take any allegations of unsafe practices very seriously,” the company said.