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

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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Need more proof that retaliation doesn't pay? Check out this scenario. Workers raise safety concerns with their carrier and OSHA. Carrier files a defamation lawsuit against the workers. Workers file Whistleblower complaint with OSHA. OSHA investigation finds lawsuit was in retaliation for the workers' protected activity, and PRESTO! the carrier has to pay $7.8 million in compensation and attorneys fees.

And to top it off, OSHA orders the carrier to withdraw the lawsuit and give all its employees notice of their Whistleblower rights. Read about it here. The carrier this time happened to be an airline, but the same scenario would apply to a railroad carrier arrogant enough to do the same to its workers. And we all know there is no dearth of arrogant railroad managers out there who think they have a license to retaliate against employees who dare to raise safety and injury concerns. So get ready for a flurry of tough orders against rail carriers, now that the first wave of OSHA investigations under the relatively new Federal Railroad Safety Act are coming to a head.

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Looks like the Federal Railroad Safety Act  is just the beginning of a new wave of whistleblower protection statutes. The combination of a whistleblower friendly Obama Administration and the worst breakdown of financial regulation in decades is sure to result in a major expansion of whistleblower protection laws, and the legal press is taking notice.

In this session Congress is considering additional protections for federal employees , and another bill (the Private Sector Whistleblower Protection Streamlining Act) would establish a coherent system for protecting private-sector employees from retaliation when they report violations of law or threats to health and safety. A common element in these new whistleblower laws is that they give employees the right to go into federal district court to litigate their retaliation claims before a jury.

Sound familiar? So it does indeed look like the Federal Railroad Safety Act is forcing the railroad industry to blaze the trail that other private industries soon will be following.

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Talk about leveling the playing field. OSHA's FRSA Whistleblowers have sent another powerful message to rail management: sorry guys, but the days of business as usual are officially over. Supervisors are no longer free to retaliate at will against employees who raise safety concerns.

It all started when a Union Pacific Railroad Company welder performing work on adjacent railroad tracks asked for a lookout and tools to make the job safer. His reward? Instead of a thank you for trying to be safe, his supervisor abolished his job, forcing him to increase his daily commute by 131 miles and taking him away from his family for extended periods of time.

The welder filed a whistleblower complaint under the Federal Railroad Safety Act, and OSHA's investigation concluded the Railroad's abolishment of the position was illegal retaliation. In so ruling, OSHA's regional administrator stated a simple principle that will reverberate throughout the railroad industry:

"A supervisor does not have the right to abolish a job position because he becomes annoyed by a worker voicing safety concerns."

Wow. Amen and Hallelujah, brother.

But that's not all. OSHA ordered the Railroad to reassign the welder to his former position, reimburse him for his travel expenses, and pay compensatory damages for his personal hardship. And to top it off, the Railroad was ordered to provide whistleblower rights information to all its employees. For the OSHA Press Release, click here.

So now it is getting very real for the railroads. The FRSA has taken away the right of managers to retaliate at will against employees who get under their skin by reporting injuries or raising safety concerns. From now on, any railroad arrogant enough to ignore the FRSA will be forced to pay dearly for it.

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I feel safer already. The Department of Homeland Security, through its Transportation Security Administration (TSA), has finally gotten around to promulgating new regulations strengthening security on passenger and freight railroads. The new regulations were to go into effect December 26, 2008, but the railroads successfully petitioned for a delay until April 1, 2009. The regs can be found at 49 CFR 1580. For the final report and full text, click here.

Suffice to say, every passenger and freight railroad now must have a Rail Security Coordinator who is available 24/7 to coordinate intelligence and security with the Transportation Security Administration and law enforcement agencies.

And every railroad now is required to "immediately report potential threats and significant security concerns to the Department of Homeland Security Freedom Center at 703-563-3240 or 1-877-456-8722."

Potential threats or significant security concerns are defined to include:

--interference with train crews;

--bomb threats;

--suspicious items that disrupt railroad operations;

--suspicious activity around rail cars or rail facilities;

--discovery of a firearm or other deadly weapon on a train, station, terminal, facility, storage yard, or other location used in the opeation of the railroad;

--indications of tampering with rail cars;

--possible surveillance of a train, facility, storage yard, or other location used in the operation of the railroad;

--threatening correspondence received by the railroad.

The reality is, the TSA has to rely on the eyes and the ears of railroad employees and passengers. So the slogan "If you see something, say something" now has to be changed to "If you see something, call the Freedom Center at 703-563-3240 or 1-877-456-8722." Not as catchy, but hopefully more efficient.

Also, special chain of custody and control requirements apply to freight railroad operations in High Threat Urban Areas (HTUA). HTUAs are listed in an Appendix to the regulations, and include areas around Boston, Jersey City/Newark, New York City, and Philadelphia. The railroad must physically inspect cars carrying "rail security-sensitive materials," keep them in a "rail secure area," and document the transfer of custody in writing or electronically.

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Sounds like Joe Szabo will be the next Head of the Federal Railroad Administration. If so, this is good news for rail labor and anyone concerned with promoting rail safety. Joe's background is as a conductor for both freight and passenger railroads, and until recently he served as Illinois state legislative director for the UTU. Joe has known Obama since Obama was an Illinois state legislator, so Joe will have the President's ear.

And speaking of Hope and Change, is it too much to hope for that Joe will take steps to increase the coordination between the FRA and OSHA's Whistleblower Office when it comes to investigating railroad violations of the new Federal Railroad Safety Act, 49 USC 20109? Congress assigned OSHA the responsibility to investigate FRSA retaliation complaints, but did not give OSHA the subpoena power to force recalcitrant rail managers to hand over the internal documents and data needed to prove patterns of systemic abuse. That's where coordinated efforts by the FRA can come in.

Many of the FRSA violations for retaliating against employees who report injuries and interfering with their medical treatment also are violations of the Internal Control Plan the FRA requires railroads to live by, 49 CFR Part 225. The FRA requires all railroads to publish and enforce an Internal Control Plan (ICP). The Metro-North Railroad ICP is typical, and reads as follows:

"Metro-North Railroad is committed to the complete and accurate reporting of all accidents, incidents, injuries, and occupational illnesses arising from the operation of the railroad. Metro-North is also committed to full compliance with the FRA's accident reporting regulations. Harassment or intimidation of any person that is calculated to discourage or prevent any person from receiving proper medical treatment or from reporting any accident, incident, injury, or occupational illness will not be permitted or tolerated. Disciplinary action will be taken against any employee, supervisor, manager, or officer of Metro-North Railroad who harasses or intimidates."

So a violation of the FRSA often will be a violation of a railroad's ICP, thus giving the FRA the jurisdiction and obligation to investigate. If the FRA works together with OSHA's Whistleblower Office to develop the information necessary to fully investigate such violations, the enforcement of the FRSA will be materially strengthened.

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The coalition of unions on Metro-North Railroad, the Metro-North Labor Council, recently met with the top administrators and whistleblower investigators from OSHA's Regions 1 and Region 2. Every craft on the Railroad was represented by at least one rail labor official. The spokesman for OSHA was Region 2 Supervisory Investigator Michael Mabee. It was an illuminating meeting for both sides. The rail labor reps described their frustration with the Railroad's hostile management culture, and the OSHA administrators were able to clarify their role in applying this novel whistleblower statute.

Because it is new, the FRSA raises many questions. But undoubtedly one of the great unanswered questions presented by the FRSA is the meaning of subsection (f), entitled "Election of Remedies." There are no Administrative Law Judge or federal court decisions interpreting what the language of subsection (f) means. However, a pattern is beginning to emerge nationwide. Taking advantage of the void in case law, and desperate to deflect the force of the FRSA, the railroads obviously have gotten together and agreed to press a baseless interpretation of subsection (f): namely, that an employee's participation in the Railway Labor Act disciplinary process constitutes an "election of remedies" that eliminates the employee's rights under the FRSA. My response is, nice try guys, but that's not what the language of subsection (f) says either in isolation or when read in the full context of the FRSA statute.

We all know that when it comes to statutory construction, the plain meaning of the text controls. But we tend to forget another basic principle, namely that the statute is the text itself, not the title given to the section or to the subsections within the statute. And because the title is not part of the statute's text, it cannot be used to undo the plain meaning of the text. In pressing their baseless interpretation of subsection (f), the railroads are conveniently ignoring these basic principles of statutory interpretation.

Yes, FRSA subsection (f) is entitled "Election Of Remedies." But that subsection does not actually use the term "remedy" in its text. Nor does the phrase "election of remedies" appear anywhere in the text. The actual text of subsection (f) reads in full:

"An employee may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier."

That is, an employee may not seek protection under both the FRSA and another statute for the same unlawful act of the railroad. The key phrases here are "may not seek protection" and "for the same allegedly unlawful act." Let's take a look at the plain meaning of that statutory language viewed on its own and in the full context of the other FRSA subsections.

UNLAWFUL ACT

For a railroad to file a disciplinary charge against an employee is not it itself an "unlawful act" (it is legal for a railroad to file disciplinary charges under the RLA, and it happens hundreds of times a day). Filing a disciplinary charge is only an "unlawful act" if it is done in retaliation for an employee engaging in activities specifically protected by the FRSA. That is, the act of disciplining is "unlawful" only if it is done with an intent to retaliate for the employee's protected activity. Absent such an intent to retaliate, there is no "unlawful act" for the FRSA to protect against.

TO SEEK PROTECTION

FRSA subsection (f) only states that an employee may not seek "protection" under the FRSA and another provision of law "for the same unlawful act." It does not say an employee may not seek remedies under both this section and another provision of law. Congress certainly could have stated that an employee can not seek remedies under both the FRSA and another law, but chose not to do so. Instead Congress only referred to protection under the FRSA. The only unlawful act that the FRSA can or does protect against is whistleblower retaliation. To seek protection from unlawful whistleblower retaliation means to invoke the protection of a whistleblower statute. Because an employee can seek protection under only one whistleblower protection statute, the employee must elect which whistleblower retaliation protection statute he is invoking.

And in fact that is how OSHA applies the FRSA.  After OSHA receives a FRSA complaint, it requires the employee to fill out and return an "Election of Remedies" form. The form requires the employee to elect the protection of one specific whistleblower protection statute. The explanatory cover letter that accompanies the form quotes FRSA subsection (f) and then points out that because the employee's complaint could be investigated by OSHA "under several different" whistleblower laws, the employee must chose the whistleblower law under which he wants OSHA to proceed. The Railway Labor Act is not one of the laws listed for election by the employee. Once the employee elects a specific whistleblower law, OSHA does not concern itself with whether a Railway Labor Act matter is pending because the RLA is not a whistleblower protection statute. OSHA proceeds with its whistleblower retaliation investigation regardless of whether any RLA process is unfolding at the same time.

THE RAILWAY LABOR ACT IS NOT A WHISTLEBLOWER PROTECTION STATUTE

The Railway Labor Act has no whistleblower protection provision, 45 USC 151 et seq. It is not a whistleblower protection statute. The purpose of a Railway Labor Act disciplinary proceeding is to interpret and apply the collective bargaining agreement, not to protect whistleblowers. A RLA proceeding can only rule on the merits of the underlying collective bargaining agreement disciplinary charge. It can not and does not address whether the railroad acted unlawfully by retaliating for whistleblower activity protected by the FRSA. The final result of a RLA proceeding is not based on any finding of whistleblower retaliation.

SUBSECTION (f) MUST BE HARMONIZED WITH SUBSECTIONS (g) and (h)

The United States Supreme Court has stressed time and again that statutory construction is a "holistic endeavor." The language of a statute only has meaning within the context of the broader statute, and courts "must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." A statute's text must be examined in the context of the plain meaning of its related statutory provisions.

Here, there are three FRSA subsections that must be read together and harmonized: subsection (f) entitled Election of Remedies, subsection (g) entitled No Preemption, and subsection (h) entitled Rights Retained by Employee.

Subsection (g) states that "Nothing in this section preempts or diminishes any other safeguards against discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner of discrimination provided by Federal or State law." The phrase "nothing in this section" means the entire FRSA section and all its subsections. "Nothing in this section" means nothing in subsection (f) can be used to preempt or diminish such safeguards. The Railway Labor Act is a federal law that contains such safeguards. Thus nothing in the FRSA can preempt or diminish an employee's safeguards under the Railway Labor Act. The text of (f) must be read in conjunction with (g). The two subsections must be harmonized so as to avoid a fatal conflict that cancels out one or both subsections. Read together, those two subsections lead to the unavoidable conclusion that the FRSA operates in addition to the RLA, not in place of it. The protections of the FRSA are in addition to the safeguards of the RLA. The two federal statutes are like two locomotives that each operate on their own parallel separate track, co-existing rather than competing to occupy the same single track.

This interpretation is reinforced by the language of subsection (h): "Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal of State law or under any collective bargaining agreement." Again, the phrase "nothing is this section" is all-inclusive and unlimited in scope. Its plain meaning must be applied to every subsection within the FRSA. And subsection (h) plainly states that nothing in the FRSA shall be deemed to diminish the remedies of any employee under the Railway Labor Act or any collective bargaining agreement. This is in fact the only place where the word "remedies" appears in the actual text of the FRSA. And it is used in the context of a sweeping declaration that nothing in the FRSA shall be interpreted to diminish the remedies of any employee under the Railway Labor Act.

The language of subsection (f) must be read in light of the transcendent "nothing in this section" language of subsections (g) and (h). The meaning of (g) and (h) is plain: subsection (f) cannot be interpreted to diminish any employee's rights and remedies under the Railway Labor Act. The FRSA's protection against whistleblower retaliation exists in addition to the collective bargaining remedies available to an employee under the RLA. That interpretation harmonizes the plain meaning of all three subsections. The railroads' baseless interpretation of subsection (f) improperly ignores the force and effect of subsections (g) and (h) and relegates them to dead letters.

NO DOUBLE RECOVERY OF REMEDIES

This interpretation of the FRSA's election of remedies subsection--namely that at most it only requires an election between whistleblower protection statutes--is consistent with OSHA's handling of FRSA complaints and with the harmonization of subsections (g) and (h). It also does not lead to any double recoveries. That is because the remedies listed by the FRSA are tailored to the practical reality of an employee's condition. The FRSA generally states that a prevailing employee "shall be entitled to all relief necessary to make the employee whole." 49 U.S.C. 20109(e)(1). If reinstatement is not needed or already has been accomplished, then it is not required under the FRSA. And if there is no back pay to be awarded or if the employee already has been made whole, then there is no double recovery for that remedy. The Railway Labor Act does not provide any remedy for compensatory damages or for punitive damages, so no double recovery is possible there. Because the FRSA exists in addition to--instead of in place of--the RLA, and because the flexible relief under the FRSA is tailored to each employee's individual situation, double recovery is easily avoided.

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Our hearts go out to the family and friends of Metro-North Railroad worker Kevin McGrath, whose life came to an end on the tracks just west of Rye Station while he was on duty January 9th. Just as every human life is unique, each fatal railroad accident like this is uniquely tragic. 

As Kenny's family, friends, and co-workers celebrate his life and mourn his loss, they cannot help but ask themselves, "Why? What went wrong? How could this possibly happen to an experienced 25 year Railroad veteran?" It is only human to try to make sense out of such a tragedy by asking such questions. But if experience is any guide, the full truth as to what really happened will not emerge until long after the period of initial shock and grieving. 

From my point of view as a railroad accident FELA lawyer, at times like this I am always struck by the disconnect between the superficial news reports in the media and the complex depths of the true story. One article from the Connecticut Post is typical.  Click here for article. It gives the bare known facts, and then refers to two earlier Metro North railroad accident worker fatalities, both of which were FELA cases handled by my firm. The Robert Ard, Jr. case is instructive. After Bob was killed by a Metro North train in Stamford Yard, Metro North Railroad management issued a Report placing all the blame on him, a conclusion other law firms endorsed when declining to help his wife and two daughters. Of course Bob could not speak for himself, but by aggressively using the tools of federal court discovery we were able to uncover the truth: the underlying cause of Bob's death was in fact Metro North's failure to follow its own failsafe procedures for safe switching operations. After a two week federal court trial, the jury rejected Metro North's "blame the victim" defense and returned a gross verdict of $4.3 million for Bob's wife and daughters.  For information on the Ard verdict, click here and here.  

As the Ard case illustrates, the full truth will not emerge even when the Railroad conducts its own investigation and issues its Report. Indeed, it is likely Metro North's Report actually will avoid or obscure the truth as to what really happened and why. It takes time and hard work, but the truth as to what really happened can and must be discovered, if only to provide closure for Kevin McGrath's loved ones and to ensure that such a tragedy never happens again.

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 The FRSA (Federal Railroad Safety Act, 49 USC 20109) just keeps getting better and better. The FRSA is now amended to provide that:

A railroad may not deny, delay, or interfere with the medical treatment of an employee who is injured during the course of employment. In particular, a railroad may not discipline or threaten to discipline an employee for following the orders or treatment plan of a treating physician. (The full text of this amendment is available after the jump).

This is a fundamental shift in the balance of power between rail management and rail labor. Think about it. Up to now, whenever an employee reports a FELA on-the-job injury, railroads like Metro North, LIRR, New Jersey Transit, Massachusetts Bay Commuter Railroad, and Amtrak order the injured employee to travel long distances to the railroad's medical facility, even if such travel violates the treatment plan of the employee's treating doctors. Once there, the employee is given a perfunctory lookover by a non-physician and sent back home. This is a form of harassment designed to discourage employees from reporting injuries in the first place. And if the employee follows his doctor's orders and stays home, the railroad charges the employee with insubordination and disciplines him, up to and including firing.

Here's a recent example. True story, I'm not making this up. An injured employee in Connecticut was ordered to report immediately to the Metro North medical facility in Grand Central Terminal. His treating doctor faxed down a note confirming that his patient required three days of bed rest. Metro North refused to accept the note because, and I quote, "It doesn't say that you can't travel on a train" (apparently Metro North now allows beds in its commuter trains). Metro North told the employee he is not excused from the appointment and "You will be disciplined if up don't show up."

Well, railroads can no longer play that game. The FRSA now prohibits a railroad from disciplining an employee for following the orders or treatment plan of his treating doctor. So when an employee has a note from his doctor stating he can not travel, the railroad can not force him to travel to its medical facility. Or if the treating doctor says no light duty, the railroad can not force the employee to work light duty. Or if the treating doctor says his patient needs more treatment before returning to work, the railroad can not force him back to work. 

Another form of abuse is when railroads routinely "deny, delay, and interfere with an injured employee's medical treatment" by arbitrarily declaring his on-the-job injury "non-occupational." This means the railroad will not pay for the medical treatment prescribed by the employee's treating doctor. This forces the employee to try to have his regular medical insurance pay for his treatment, but such insurance is not supposed to cover on-the-job injury medical expenses. Many medical insurance plans limit the doctors you can see, and all require various out-of-pocket co-payments. As a result, this inevitably denies, delays, or interferes with the employee's medical treatment. And the railroad improperly evades payment of the medical expenses by placing it on the backs of the insurance company and the employee.

Metro North Railroad is notorious for this abuse, and in fact the Metro North Labor Council has been investigating this arguably fraudulent conduct by the Railroad for some time. Now, railroads like Metro North will be sued under the FRSA whenever they declare an on-the-job FELA injury to be "non-occupational," with the prospect of punitive damages up to $250,000 for each occurrence.

There is more to this powerful amendment to the FRSA (keep tuned, details to follow). But one thing is clear: in the eternal struggle between rail labor and management, the balance of power has now shifted over to labor's side when it comes to controlling the course of an employee's medical treatment. Start spreading the word so labor can enforce its new won rights to the fullest extent allowed by law. 

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Last month, the first reported Order imposing punitive damages against a railroad for violating the FRSA anti-retaliation law came to light. It concerned retaliatory conduct by Amtrak in Seattle, but the OSHA Whistleblower Office Press Release announcing the Order provided few details about what actually happened.

Well, my curiosity was piqued. I managed to get my hands on OSHA's Findings and Final Investigation Report, and the details are very telling.

The employee was working in the King Street Station in Seattle. In the rail yard north of Holgate Street she stepped off a platform onto a parking area that was not properly maintained (potholes, uneven ground, rocks) and twisted her left ankle on a rock. She reported the injury to her supervisor, who saw her swollen ankle, and she booked off injured. Amtrak immediately charged her with violating the usual vague all-encompassing "safety" rules (including Amtrak's "Standards of Excellence," whatever that is), and held a disciplinary hearing. Initially she was fired, but that was reduced to a 30 day suspension without pay.

The employee filed a FRSA retaliation complaint, and OSHA Whistleblower's office investigated. OSHA found Amtrak's managers had "a mind-set that employees are always at fault when they are injured on the job" and "engaged in intimidation by assessing severe punishment against employees who report injuries, which sends a chilling effect to all employees not to report injuries for fear of losing their employment." OSHA ordered Amtrak: to pay the employee her back wages along with punitive damages; to expunge the discipline from her file; and to not retaliate or discriminate against her in any manner in the future.

To me, the most remarkable thing about this case is how typical the scenario is: an employee reports a FELA on-the-job injury, and the railroad reacts by filing bogus disciplinary charges against the employee. This happens every day on railroads all over the country. The fact punitive damages were ordered for such a common situation bodes ill for railroads like Metro North, the LIRR, NJ Transit, MBCR, Amtrak, and CSX where the management culture encourages such knee jerk disciplinary retaliation against employees who report injuries. The FRSA is designed to change that culture by enforcing the free and unfettered reporting of injuries. And punitive damages are the hammer that will force such a cultural change. So railroad managers beware: you now are on notice that trying to discipline an employee who reports a railroad injury will put you squarely in the crosshairs of a FRSA punitive damage action.

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