Railroad Fees Raise A Red Flag

By LINDSAY PETERSON The Tampa Tribune

Published: Mar 11, 2007

The road workers spread concrete, shape curbs and sweep debris on the new bridge next to the CSX railroad tracks. As the four men work, one man watches.

Day after day he sits in his black pickup or strolls around the site in Polk County, each day of his service costing the county nearly $500.

The total after 14 months: about $160,000.

CSX Transportation charges taxpayers across the country millions for the people who do this type of work. They're called flagmen, but they don't stand on the tracks waving flags.

They sit in their vehicles for hours, waiting for word of a train so they can warn road crews to stand clear - even when the road work is far from the tracks for days at a time, even when the tracks see only one train a day or none at all.

In Hillsborough and Polk counties, government agencies paid the railroad company at least $3 million from 2003 to 2006, according to records reviewed by The Tampa Tribune.

State and local agencies don't track what they spend on flagging, so there are no statewide or national figures on how much CSX collects.

The agencies sign contracts for the service, but the railroad sets the terms. Many don't even know what they are paying for because they don't verify the flagmen's hours or examine discrepancies between charges and time sheets.

Although he doesn't know how much the state Department of Transportation is paying for flagmen, Gary Fitzpatrick, state rail office administrator, said he's sure it's a lot.

"It's scary" to imagine how high, he said.

CSX stands by its flagging costs, saying in a written statement that the work is needed "to protect public safety and railroad employees and property."

Flagging is one of the best positions on the railroad, flagmen say, sought by the workers with the most seniority.

"It's a good job. It's an important job, but it's good work," said retired railroad worker Nemal Rolle Sr.

The flagmen on projects the Tribune reviewed made about $25 per hour, including overtime pay. To that, CSX adds a surcharge, which is now about 75 percent but has been as high as 85 percent.

State auditors have approved these additional charges for benefits and company expenses. They're in line with what railroad companies across the country charge, DOT auditor Carlos Mistry said.

Mistry hasn't examined flagging costs overall. No one has alerted him to any problems, he said. But the Tribune review of the transportation files found several questionable items.

•On a DOT project on U.S. 301 in Manatee County, for instance, CSX billed for 26 hours over two days in June 2004 - and was paid $1,210 - despite time sheets showing the flagman worked only 13 hours, worth about $507.

•On a DOT project on Interstate 275 in 2001, CSX billed for six days' worth of flagging even though the contractor had canceled work because of the Super Bowl. Those six days cost the state $1,665.

•A month later on the same job, CSX billed for 92 hours of flagging during a week when the flagman's time sheets showed he worked only 52 hours. The 40-hour discrepancy was one of several between the time sheets and CSX bills - which totaled more than $383,000 in 32 months.

Kris Carson, a spokeswoman for the state Department of Transportation, said the DOT reviewed all discrepancies and that these were considered to be "very minor."

In a written response to questions from the Tribune about billing discrepancies, CSX said it had reviewed the records and they were "consistent with requirements for documenting hours worked."

The company said it is not unusual for charges to exceed a flagman's time at a work location. Flagmen often "must obtain a daily train traffic lineup and drive from the area office to the work site." That time is charged to local government agencies. Also, it said, some union agreements require additional compensation beyond what CSX requires, though it didn't respond to requests for elaboration.

Some union agreements require that flagmen who are asked to work temporarily outside their regular hours - at night, for instance - also be paid for the daytime hours they would have worked, said DOT rail administrator James Andrews, who called it a "sleep-time requirement."

Concerning flagmen being paid even when road crews are off work, CSX said flagmen assignments can be changed only with "appropriate advanced arrangements."

At Their Mercy

Nearly 2,900 miles of rail lines cut across Florida, and CSX, based in Jacksonville, controls 60 percent of them, hauling everything from oranges to ammonium nitrate.

In Florida and the 22 other states where CSX operates, the company requires flagmen on all projects involving work near its rails. Most railroads have the same rules.

The typical CSX contract in Florida says the rail company has the "sole authority to determine the need for flagging required to protect its operations and property."

Many contracts say the agency must use flagmen if any road worker is likely to be within 25 feet of a working track. Others set that distance at 50 feet.

Federal safety regulations require railroad companies to protect people working on a railroad track. The detailed set of rules says, for instance, that flagmen must be trained to keep trains back from construction areas.

CSX has additional terms. It often requires the use of flagmen for the entire length of a job, even if the workers are near the tracks for only part of the time. And the flagman must be a CSX employee.

"These are their rules," said Jim Drapp, vice president of HNTB, a contractor for the Tampa-Hillsborough Expressway Authority. The authority paid about $1.2 million for flagmen on the three-year expansion of the Lee Roy Selmon Expressway. "We were told that this was the cost. And that's what we paid."

The agency that balks - whether it's a municipality or a state department of transportation - is barred from railroad property, which can make a road widening, pipe laying or bridge repair impossible.

"We, the cities, the counties, the state, literally are at the mercy of CSX and all the other railroads," said Steve Valdez, spokesman for Hillsborough County.

When a DOT official suggested holding CSX responsible when a flagman's vacation caused delays on a Lakeland project, a DOT rail administrator warned against it.

Seeking reimbursement "may antagonize [CSX] to the point that they will not cooperate with FDOT at all and can actually delay the project even further," Arlene Barnes wrote.

The state ended up paying the contractor $6,211 to make up for his losses, even though they stemmed from the absence of the CSX flagman.

"It's very frustrating," said Polk County Public Works Director Wendy Kluge. "They literally hold us hostage."

CSX threatened "severe penalties" against Polk County if its workers began building its new bridge in Mulberry last year before hiring a CSX flagman.

When finished, the 1,000-foot-long span would abut CSX tracks at its west end. A flagman had to be on site, the railroad said, if the project involved any work within 25 feet of the track.

But what about when the bridge workers were outside that 50-foot strip, asked Polk roadway engineer Steve Logan. Could the county go without the flagman during those weeks to save taxpayer money?

The answer was no.

CSX officials said the company didn't have the staff to furnish a part-time flagman. It had to offer the job in-house as a full-time, temporary position. And that meant the flagman would remain on the job for the entire project, regardless of when bridge workers were near the tracks.

Through its engineering contractor, CSX offered a concession early on. When new crossing gates were installed at the bridge, the county could stop using the flagman, the contractor said in an e-mail to Polk County.

But even after gates and flashing lights went up in early November, the flagman remained, at CSX's orders, for 2.5 more months. And the county paid.

The flagman refused to identify himself when the Tribune approached him Jan. 24. CSX invoices show his name is John Harrison.

He spent that day sitting in his black Chevrolet pickup, with a newspaper on the dashboard. Occasionally he got out to chat with workers, walking around with a two-way radio and mug. One of the workers spent an hour or so about 10 feet from the track that day, sanding a curb. The others worked farther back. Later, they crossed the tracks several times moving supplies.

Harrison's job was to listen for word of a train. When notified, he would tell it to stop, warn the workers to stand clear, then radio the train to come through.

No train came. The crew finished about 3:30 p.m., and everyone left.

Altogether, the railroad billed Polk County for about 250 days of flagging services - even when the workers were well beyond CSX property, even on days when there were no trains.

The flagman "would sit in his pickup truck and get paid," Logan said. "To me, that doesn't seem like the greatest use of taxpayer dollars."

Polk County paid about $160,000 for the flagging services.

'Standard Operating Procedure'

This kind of arrangement is typical with long-running projects, Fitzpatrick said. The flagmen "get paid all the time, even if the workers aren't there."

The reason, CSX said, is "to ensure full utilization of the flagmen. … CSX does not have the personnel resources to provide flagmen to outside agencies without proper notice."

Also, "for safety's sake, a flagman must be present should work reach a point where flagging may be required."

The Tampa-Hillsborough Expressway Authority ran into the company rules when it built the Selmon's elevated lanes. The project lasted three years, and flagging services cost toll payers more than $1.2 million.

The new lanes stretch from Brandon to downtown Tampa and cross CSX tracks in three spots, near 50th, 30th and 22nd streets. They flow into Meridian Avenue, which parallels a stretch of railroad tracks in the Channel District.

The workers were in one place for a while, then moved on, Drapp said. "But we couldn't use [the flagman] for just 10 or 12 weeks and stop. … We were forced to keep them out there continually."

Expressway authority officials knew CSX was billing for days when the road workers were beyond railroad property, Drapp said. But the authority still had to pay. The charges overall ranged from $150 to $1,500 per day.

One six-day period in January 2006 cost the authority nearly $10,300 for two flagmen. According to the invoices, one of them worked two 24-hour days in a row followed by a 22.5-hour day.

That was when workers were over a track, Drapp said.

"The flagman's primary duty is to protect the CSX assets," said Ed Callicutt, with expressway authority contractor Figg Engineering. "He has a role in safety. But the big goal, the overriding thing is that we don't do anything to mess up a track. Not that there were a bunch of knuckleheads walking around out there. But this is standard operating procedure."

Drapp said Figg was responsible for keeping tabs on the flagman. But Callicutt said the flaggers didn't log in and out.

"We would have someone in close contact with him," he said. "But we weren't involved with them day to day, hour to hour."

The authority does not have time sheets in its files showing when and where the flagmen worked. The project accountant, B.J. Lamb, said she relied on the project engineers for assurances that the costs were necessary.

Using 'Our Own Best Judgment'

In the District 1 DOT office in Bartow, which covers part of Central Florida, none of the files reviewed by the Tribune contained complete records of when the flagmen were on the job.

One file, however, described a futile effort to obtain those records. The project was a pipe crossing near CSX tracks in Bartow.

A year after the flagman's work was finished in late 2004, DOT officials were still waiting for the contractor to send its inspector's daily reports showing the flagman's hours.

A DOT worker asked the contractor by e-mail to "please provide the completed forms as soon as possible."

They'll arrive in two weeks, was the answer. Nearly a month passed. Then 10 weeks. No daily reports.

"Since we are unable to get a response, … let's close this out," Barnes, the district rail office administrator, wrote in December 2005. The account was settled with nothing in the files beyond CSX invoices to show why the state should pay the company more than $155,000 for 20 months of flagging.

Asked recently about the time sheets, Barnes said her office doesn't always get them.

The project inspectors who fill them out may be "unaware of request for such information," she wrote in an e-mail. "Inspectors may be pulled off of one project and put on another and they are unaware of flagman on site, etc."

She said the agency doesn't always need them. "Per our Auditors advise, if these [CSX] charges appear to be reasonable then we are to use our own best judgment for final payment."

No Alternatives

For the past three years, the state DOT has kept CSX flagmen in two spots beneath Interstate 4, where tracks run near 31st and 36th streets east of Ybor City.

The state has paid CSX more than $765,000 for these flagging services, and the I-4 improvements are months from being finished.

At 31st Street, workers haul and move dirt around pilings supporting the highway. The flagman, who would not give his name, said he's there largely to make sure the workers don't drive onto the tracks.

He said he begins each day about 6 a.m., checking the train schedules and other messages about track conditions. One train generally comes through his area in the morning and another in the afternoon, he said.

Five blocks east, another flagman sits under the interstate at a storage yard filled with pallets, beams and railings. It was busy there in late January, when new I-4 lanes were going up and old ones were coming down overhead.

Beyond that, however, it's active primarily when workers come to pick up materials, all of which lie well beyond the railroad tracks. Many days it's quiet, except for the arrival of the regular afternoon Amtrak train.

As the train pulled up slowly one recent afternoon, the flagman got out of his pickup. The train stopped, and he talked for a few minutes with crew members. No one else was in the yard. Then the train left.

Fitzpatrick said the DOT looked into training state employees to provide flagging for its road projects. "We wanted it to be someone who is less expensive," he said.

Federal rules permit the use of nonrailroad workers as flaggers.

But not CSX. "Flagging is a safety-sensitive task," the company said. It "uses only qualified railroad employees, properly trained by the company and familiar with CSX's railroad operations and safety requirements."

Fitzpatrick said the state has talked many times with CSX officials about the high cost of flagging. "We've talked to them with a great deal of distress."

But he said the company sticks by its rules, citing the need for safety.

It's also a matter of ownership, Fitzpatrick said. "They were here first. They have us over a barrel."

Reporter Lindsay Peterson can be reached at (813) 259-7834 or lpeterson@tampatrib.com.