Train Law Blog : Railroad Injury Lawyer & Attorney : Cahill Goetsch & Perry Law Firm : Railway Worker Injuries & Accidents

When rail labor works together, good things happen. Case in point: a critical meeting last September 15th with the Department of Labor regarding the true meaning of "election of remedies" under the Federal Rail Safety Act (FRSA) is now bearing fruit.

In early September, the DOL appeared headed toward accepting rail management's argument that an employee's participation in the Railway Labor Act (RLA) process constitutes an irrevocable "election of remedies" barring the employee from the protections of the FRSA. However, the DOL asked to hear rail labor's point of view, and invited a few rail labor attorneys to attend a September 15th summit to discuss the issue.

As the attorney who first weighed in on this issue and was set to try the first FRSA cases in November, the DOL asked me to attend. What happened next illustrates the power of working together. BMWED Director of Safety Rick Inclima and St. Paul rail labor attorney Charlie Collins reached out to the invitees, urging us to coordinate our efforts for maximum effect and offering the IBT's Headquarters as a location for us to meet beforehand. And coordinate we did. In addition to Rick and Charlie, Jim Farina and Steve Garmisa showed up from Hoey & Farina in Chicago, as did San Diego rail labor atorney Harry Zanville and UTU Associate General Counsel Kevin Brodar from Cleveland.

We put our heads together. Our challenge was to convince the DOL that the FRSA and the RLA exist on separate parallel tracks with neither one excluding the other. To do that, we had to explain the very real practical differences between the RLA process and the whistleblower protections of the FRSA. It was agreed I would kick off the discussion, and that afternoon we met with high level personnel from the DOL's Solicitor General Office and Directorate of Enforcement Programs.

We had an intense back and forth for over two hours. I opened it up by pointing out that the purpose of the FRSA is to change rail management's culture of retaliation, and the way to do that is to allow the FRSA to operate independently of the RLA. By the end of the meeting I believe we were able to open up DOL's eyes to the fact that RLA proceedings simply do not address or remedy whistleblower retaliation, and that the interpretation sought by rail management would eviscerate the FRSA and return us to the unacceptable status quo before Congress enacted the FRSA.

Now it appears our efforts are bearing fruit. The DOL's Assistant Secretary for OSHA just asked to file an amicus appeal brief with the Administrative Review Board on the issue of "election of remedies," and the BMWED put out a Press Release noting the tide has turned. The sense we are getting is that OSHA now is directing its Whistleblower investigators to conduct their FRSA investigations regardless of any RLA proceedings. And so, thanks to the cooperative efforts of rail labor, the FRSA and RLA will forever operate on separate parallel tracks, where they belong.

BMWED President Freddie Simpson said it best in his Press Release: "Railroads will no longer be able to retaliate against railroad employees who report injuries and safety violations with impunity. This is a substantial victory for all of Rail Labor and every rail worker nationwide, and I am proud that BMWED led the way to this important victory." And to that I can only add, "Amend brother!"

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Here's another example of what happens when a railroad tries to blame an injured worker instead of taking responsibility for the workplace culture that caused the injury in the first place. Declaring "An employer does not have the right to retaliate against its employees who report work-related injuries," OSHA's Whistleblower Office ordered two Illinois railroads to pay over $80,000 in back wages, compensatory damages, and attorney's fees to a former worker who reported an injury and then was subjected to a railroad "investigation" that resulted in his termination. Click here for OSHA's press release, and click here for the full text of the Federal Rail Safety Act that shields employees from such retaliation.

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Every railroad will tell you its goal is "to provide safe trains that arrive on time." But when safety falls short of the slogan, often it is passengers who pay the price. The latest example comes from New Jersey Transit, where a passenger was dragged to death when train doors malfunctioned. But the law holds railroads accountable to the highest standard of care when it comes to providing for the safety of passengers. Whether it be train doors on NJ Transit, or platform gaps on LIRR, or mainline train collisions, holding railroads legally accountable for passenger injuries is the only way for the public to enforce rail safety standards.

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Starting in March, commuter rail cars must be built with stronger front-end frames to better protect passengers during collisions. click here This is good news, but underscores the importance of avoiding collisions in the first place. How? Rail workers are the eyes and ears of safety on the tracks. If they hestitate to raise safety concerns for fear of management retaliation, we all are at risk. But two new laws protect railroad workers (FRSA) and subway workers (NTSSA) who raise safety concerns. Enlightened railroads should spread the word among their employees and welcome any and all safety "complaints." For the sake of rail safety, railroads have got to stop treating such workers as malcontents worthy of retaliation. And if workers invoke their protections under the FRSA and NTSSA, that will begin to happen.

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Here's a quick look back at some of this year's notable developments in the rail safety world:

March: FRA bans railroad supervisors from medical examining rooms: click here

June: OSHA's Whistleblower Office issues $300,000 in punitive damages against Metro North Railroad for violations of the Federal Rail Safety Act FRSA, setting important precedent: click here

October: Judge confirms FRSA punitive damages apply to publicly owned commuter railroads:click here

November: Judge confirms FRSA prohibits railroads from interfering with the medical treatment plan of employees' treating doctors: click here

November: the first trial in the nation of a FRSA complaint is held in New Haven, Connecticut, against Metro North Railroad (stay tuned for the Judge's decision in early 2010)

And looking forward to 2010, here's hoping:

---for more rulings rejecting rail management's bogus argument that the participation of employees in Railway Labor Act disciplinary proceedings somehow constitutes an "election of remedies" that bars them from the whistleblower protections of the FRSA;

---for judicial rulings establishing that under the FRSA, an employee's treating doctor "trumps" over whatever a railroad manager or medical department may think or want to do;

---to increase the beneficial effect of the FRSA's sister law, the NTSSA (which protects subway system employees who raise safety concerns) by encouraging its application on major subway systems such as New York City Transit and the Washington DC Metro.

Meanwhile, here's wishing everyone a safe and productive new year!

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In response to last summer's fatal Metro subway crash in Washington DC, Congress now is proposing to extend federal rail safety standards to subway and light-rail lines currently "regulated" by understaffed local safety personnel wielding toothless rules. See NY Times Editorial. This would be a great step forward in ensuring the safety of the commuting public. But there is a little known law already on the books that if put to proper use will be a powerful tool to ensure subway safety.

The National Transit Systems Security Act (NTSSA) is a new whistleblower law that protects subway workers who report hazardous safety conditions. The NTSSA prohibits subways from retaliating or discriminating in any way against employees who report unsafe conditions or any fraud and waste of funds. And if the subway does retaliate, the NTSSA's remedies include reinstatement, back pay, compensatory damages, and up to $250,000 in punitive damages.

So one way to ensure the ongoing safety of subway systems is for employees to vigorously exercise and enforce their new rights under the NTSSA. But this has yet to happen. For example, OSHA's Region II Whistleblower Office confirms that the single largest group of subway workers in the nation, the nearly 40,000 members of TWU Local 100 who work for the MTA NYC Transit Authority, have generated a mere handful of NTSSA complaints. Given the size and history of the NYC subway and bus system, this can only mean the rank and file workers are unaware of their new rights under the NTSSA. Those workers are the eyes and ears of safety in the subway. Something must be done to raise their awareness and encourage them to speak out whenever they see a safety hazard.

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Joe Coleman from Seattle asks whether union reps can be present when a worker gives a statement to a railroad claims agent. The real question is, why would a railroad worker NOT have his union rep present?

No way can there be ever be a level playing field between a claim agent and an injured worker. Think about it. A claim agent is a manager whose only job is to save the railroad money. He is a professional trained to ask leading questions that steer the worker into incriminating answers that will insulate the railroad from liability. The injured worker, on the other hand, finds himself suddenly thrust into a bewildering process with no idea how to protect his legal interests.

Always remember, you don't have to give a statement to a claim agent. If a claim agent asks you to come in and give a statement, ask the claim agent if your union rep can be there with you. If the answer is no, that is all the proof of unfairness you need, and just walk away.

Before giving any statement, it is always best to at least consult with an experienced FELA attorney who can advise you how to protect your long term interests. But at the very least, talk to an experienced union rep who can be there to keep the claim agent honest.

So don't be fooled by the "friendly" claim agent who just "wants to help" and, by the way, just needs to take a "short statement on the record" before he will process your medical bills and so on. He will smile and joke and take your statement, and then months or years later when you go to settle your claim, he will pull out your statement and say, "Gee, what do you want from us? You yourself stated it was just an accident that could not have been avoided. You're lucky we even paid your medical bills."

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Railroad Medical Departments, beware, you can no longer interfere with an injured employee's medical treatment. Subsection (c) of the Federal Rail Safety Act prohibits a railroad from denying, delaying, or interfering with the medical treatment of an injured employee. The FRSA also prohibits a railroad from disciplining an employee for following the orders or treatment plan of his treating doctor. The railroads argue this FRSA protection only applies to an injured employee's emergency medical treatment. But in the first decision interpreting the meaning and scope of FRSA subsection (c), Administrative Law Judge Colleen A. Geraghty has made it clear the FRSA's

provisions protect employees from interference with medical care or the treatment plan of a treating physician during the course of treatment and recovery from a work injury. . . . Accordingly, an employer's changing the classification of an injury occurring at the workplace to a non-occupational injury may rise to the level of "interference with medical treatment" depending on the circumstances. 

For a link to the full opinion, click Santiago v. Metro North Railroad. Metro North had reported Santiago's on the job injury to the FRA as occupational and paid for Santiago's medical bills accordingly. But then in the middle of his treatment, the Metro North Medical Department unilaterally reclassified Santiago's injury as non-occupational (without amending its FRA report), thus forcing him to choose between forgoing his treating doctor's medical treatment plan or paying for it from his own funds. The result? He now has personally paid or owes over $16,000 in medical bills. His case is going to trial next week. Stay tuned for any punitive damage award.

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An OSHA whistleblower investigator recently asked whether railroad employees are considered to be on duty within the scope of their employement when walking over railroad property prior to the beginning of their shift or when leaving railroad property after their shift is over. Funny she asked me. The leading court decision happens to be a case I tried 20 years ago, Dolores Schneider v. National Railroad Passenger Corp.

The short answer is yes. The appellate court ruled that an "employee traversing the employer's premises to report to or to leave the job within a reasonable time of her shift is fulfilling a function necessarily incident to employment" and thus considered to be on duty within the scope of employment.

So don't let the railroad tell you otherwise. When a railroad worker gets injured just before or after their shift begins or ends, their injury is still covered by the Federal Employers' Liability Act (FELA), and the railroad must report it to the FRA as an "on-duty injury" that is shielded from any adverse action by the Federal Rail Safety Act (FRSA).

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