FRSA's Power of Preliminary Reinstatement

Posted on April 17, 2011 by Charlie Goetsch

 

The Union Pacific Railroad is about to learn the hard way that arrogance is not a defense to the Federal Rail Safety Act.

The FRSA gives OSHA the power to order the "preliminary reinstatement" of an employee with full back pay. The reinstatement goes into immediate effect even if the railroad objects to OSHA's findings. And even if the railroad ultimately overturns OSHA's award, the railroad can never recover the reinstatement wages it paid.

Railroads mess with the power of preliminary reinstatement at their peril. Case in point. After UP machinist Brian Petersen reported an injury, he was suspended, dismissed, and then returned to service subject to instant termination at the whim of any manager. Sure enough, four days after returning to work under that draconian condition, a manager saw him and two other machinists standing on Timken Bearings in order to read the serial numbers off of traction motors. Petersen was immediately sent home and dismissed in all capacities. Nothing happened to the two machinist who were with him doing the same thing.

Petersen suffered emotional and financial harm due to UP's decision to terminate him. He went into debt and had to move his wife and children to find other work. The stress was so intense he ended up in the emergency room with what appeared to be a heart attack. OSHA found UP's disparate treatment of Petersen to be in outrageous violation of the FRSA, and ordered $214,000 in make whole remedies, including: immediate reinstatement; $105,000 in back pay; $17,000 for emotional distress and moving expenses; $75,000 in punitive damages; and $17,000 in attorney's fees. For the full decision, click here.

So how did UP respond? In an insolent affront to the authority of OSHA, UP emailed OSHA stating that it "will not implement the preliminary order for reinstatement." Big mistake. Despite its arrogance, UP is no match for the power of the United States government. The United States Attorney will promptly enforce OSHA's reinstatement order in United States District Court, and all UP will end up accomplishing is to confirm its "reckless disregard" for the FRSA rights of its employees, thus setting the stage for even greater FRSA punitive damage awards in the future.

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Norfolk Southern Hit With FRSA Damages

Posted on April 11, 2011 by Charlie Goetsch

 

OSHA has blown the whistle on Norfolk Southern Railway Company's practice of disciplining injured workers based on bogus "falsification" charges. From now on, Norfolk Southern's "falsification" strategy will cost it dearly.

In order to discourage the reporting of injuries, Norfolk Southern routinely charges injured employees with "falsifying" the injury. That is what happened to Conductor Jeff Thompson. After he reported an injury, he was accused of falsifying his symptoms and was suspended for six weeks. A RLA arbitrator ordered Norfolk Southern to pay all of his back wages, and now OSHA is ordering the Railroad to pay $15,000 for his emotional distress and another $15,000 in attorney fees.

This Award is noteworthy because (1) it lays the groundwork for punitive damages against Norfolk Southern for such egregious conduct, and (2) it confirms that a RLA award of back wages does not prevent OSHA from ordering the full spectrum of Federal Rail Safety Act economic and equitable remedies. For the full text of the Award, click here.

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