DOL Agrees RLA Does Not Preclude FRSA

Posted on May 21, 2010 by Charlie Goetsch

The bogus "election of remedies" defense to Federal Rail Safety Act claims raised by railroads just took a major hit.  Yesterday the Department of Labor filed an appellate Brief confirming that a railroad worker who pursues a grievance or arbitration under the Railway Labor Act is not thereby precluded from simultaneously pursuing a FRSA whistleblower protection claim.  Noting that "retaliation and a violation of the CBA are not the same unlawful acts," the DOL's official position is that the FRSA's "election of remedies provision does not preclude a FRSA complaint where an employee has pursued a grievance and/or arbitration pursuant to the employee's collective bargaining agreement under the Railway Labor Act."  For the full decision, click here.  For some of the back story regarding this issue, click here.

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FRSA Prohibits Discipline For Following Treating Doctor's Orders

Posted on May 13, 2010 by Charlie Goetsch

Here's more confirmation that an injured railroad worker cannot be disciplined for following his treating doctor's orders. Under the Federal Rail Safety Act, railroads are strictly prohibited from "denying, delaying, or interfering" with the medical treatment plan of a treating doctor. In a recent Award, OSHA found that PATH Rail violated the FRSA when it imposed "excessive absence" discipline on a worker who followed his doctor's orders to stay out of work due to an off-the-job aggravation of a prior on-the-job injury. Full text of Award. In the words of OSHA's Regional Administrator, "Railroad employees have the statutory right to report work-related injuries and to follow the orders or treatment plan of a treating physician. Railroads who retaliate against employees for exercising their rights will be held accountable." OSHA Press Release. So absences in any way related to injuries are immune from discipline. That is the message OSHA will keep sending until railroads get it.

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Another Judge Rejects Rail Management's Bogus FRSA Defense

Posted on May 3, 2010 by Charlie Goetsch

Railroads are losing their campaign to gut the Federal Rail Safety Act by claiming that the Railway Labor Act precludes rail workers from invoking FRSA protection. In a resounding well-reasoned decision, Administrative Law Judge Richard A. Morgan explains that Congress enacted the FRSA "to allow employees to attempt to vindicate their rights using multiple means" and that the FRSA "clearly dictates that an employee is not precluded from pursuing both his RLA appeal to arbitration and his FRSA whistleblower protection complaint." For the full text of Newman v. Union Railroad, click here (PDF).

So the RLA does not preempt the FRSA. Ever. The two statutes simply run on separate tracks. In the words of Judge Morgan, employees are "not precluded from appealing their RLA discipline pursuant to the collective bargaining agreement while simultaneously litigating against the railroad through the FRSA." Kudos to Attorney Daniel J. Cohen and his client Charles Newman for adding another nail to the coffin of rail managment's bogus "election of remedies" defense.  For more background on this issue, click here.

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