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

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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 Metro North Railroad's attempt to exempt itself from punitive damages under the Federal Rail Safety Act has failed. In a case of first impression, an ALJ has just ruled that ALL railroads--including publicly owned commuter railroads--are subject to the FRSA's punitive damage remedy. Plus, the ALJ is requiring Metro North Railroad to go through the past 196 injuries it reported to the FRA and produce documents confirming any discipline initated against the employees who reported those injuries. Why? Because when "determining whether punitive damages are warranted . . . prior similar acts may be important in determining whether a wrongdoer's conduct was reprehensible and thus subject to punitive damages." This is a major step forward in ensuring the protection of railroad workers who report injuries or safety concerns. To read the ALJ's detailed and well-reasoned decision, click here, and to see OSHA's earlier ruling regarding my four clients,click here.

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The railroads obviously have gotten together and agreed to push the bogus argument that any involvement by an employee in the Railway Labor Act CBA grievance-discipline process automatically constitutes an "election of remedies" under Federal Rail Safety Act subsection (f) that precludes any FRSA complaint. It is a bogus argument because it completely ignores the effect of subsection (g) entitled No Preemption and subsection (h) entitled Rights Retained by Employee, which must be read together and harmonized with subsection (f).

As railroad lawyers representing employees, it is critical that we give any OSHA investigators and Administrative Law Judges presented with that bogus "election of remedies" argument the means to reject it out of hand. Back in January I laid out my detailed argument for the holistic analysis of FRSA subsections (f), (g), and (h). "The Real Meaning of Election of Remedies Under the FRSA" And last month, in a well-reasoned and persuasive decision, Administrative Law Judge Daniel L. Leland confirmed that subsection (f) cannot be read in isolation but must be read together and reconciled with (g) and (h). And when that is done, the conclusion that the FRSA is not precluded by the RLA grievance-arbitration process is inescapable. Click here for the full Mercier v. Union Pacific Railroad opinion.

The Mercier decision was just certified to the Administrative Review Board for an interlocutory appeal, and has been assigned docket number ARB #09121. It currently is in the hands of General Counsel Janet Dunlap, who presumably will be issuing an Order regarding a briefing schedule. An ALJ decision that completely ignores the effect of subsections (g) and (h), Koger v. Norfolk Southern Railway Company, ARB # 09101, is currently in the briefing stage. Given what is at stake (unlike ALJ decisions, ARB decisions are binding on OSHA nationwide) amicus briefs in support of the ALJ's analysis in Mercier are definitely in order.

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Rail union rep Joe Coleman from Seattle has a question about the FELA liability of railroads who contract out work. His General Foreman recently hired subcontractors to band freight car loads that had shifted due to broken banding, and when challenged tried to justify it by arguing that since the subcontractors are self-insured, the railroad will save on FELA liability.

It ain't necessarily so. Federal Employers Liability Act liability cannot be contractually waived, 45 U.S.C. 55, and the Supreme Court holds that "non-railroad" employees are nevertheless covered by the FELA if they are (1) a borrowed servant of the railroad, (2) a servant acting for two masters simultaneously, or (3) a subservant of a company that was in turn a servant of the railroad. Kelly v Southern Pacific Co 419 US 318, 324 (1974). When determining whether a person is a borrowed servant or dual servant under the FELA, courts look at several factors: (1) who exercised significant supervisory control over the worker at the time of the injury; (2) who selected the worker; and (3) who paid his or her wages. The overriding consideration is whether the railroad had control of (or the right to control) the worker in the performance of his duties, and where evidence of control of the employee's activities is in dispute, the case must go to a jury. Vanskike v ACF Indus. Inc., 665 F.2d 188, 198 (8th Cir, 1981).

So don't let managers bluff you with such lame justifications for violating your contracting out rules----railroad laws such as the FELA do not disappear merely because a railroad says so. Employees of railroad subcontractors can still sue the railroad under the FELA. And by the way, railroad contractors also are covered by the anti-retaliation provisions of the Federal Rail Safety Act. Under the FRSA, a railroad subcontractor cannot retaliate against its own employees who report safety violations or personal injuries.

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Talk about sending a message! OSHA has blown the whistle on Metro North Railroad's culture of retaliation. Big time. No longer do railroad workers have to fear reporting an injury or a safety violation. The days when railroad managers could retaliate with impunity are officially over. Every railroad in the country is now on notice that retaliation by managers will lead to punitive damages.

Under the new Federal Rail Safety Act (FRSA), railroad workers are protected from retaliation when they report any injuries or safety violations. These four workers turned to my railroad law firm for help when Metro North retaliated against them for reporting their railyard injuries: Ralph Tagliatela of West Haven, CT (station custodian), Larry Ellis of the Bronx, NY (car cleaner in GCT) Andy Barati of Waterbury, CT (trackman), and Anthony Santiago of Hopewell Junction, NY (shop electrician). We filed FRSA complaints that have resulted in the following remedies: $75,000 in punitive damages to each employee (total of $300,000); up to $10,000 in compensatory damages (total of $40,000); all lost wages with 6% interest; expungement of discipline records; barring Metro North from using injury sick days or injury reports to bar transfers or promotions; forcing Metro North to give each of its employees a copy of the OSHA Whistleblower Fact Sheet explaining their rights under the FRSA; and attorney's fees. In order to counter the chilling effect of Metro North's past conduct on all employees and to ensure protection from future retaliation, these complainants are posting OSHA's official Merit Findings here in order to show how OSHA enforces the FRSA rights of rail employees: Tagliatela Ellis Barati and Santiago. For the FRSA Fact Sheet click here.

In the first wave of FRSA whistleblower complaints, this group stands out both for the variety of the management retaliation and the strength of OSHA's response. As the railroad lawyer for all four employees, I can attest to the savvy of the OSHA investigator, who promptly launched her investigations and didn't let up until she had a thorough grasp of Metro North's culture of retaliation against employees who report injuries and safety concerns.

OSHA issued a press release that included this statement: "Railroad employees have the right to report occupational injuries and illnesses without fear that doing so will negatively affect their jobs, their health or their income," said Jordan Barab, acting U.S. assistant secretary of labor for safety and health. "Retaliating against employees for exercising this basic, legally protected workplace right is unacceptable."

On Metro North, OSHA's whistleblower investigators quickly ran into the stonewall of an entrenched management culture in which retaliation against employees is expected and rewarded. And Metro North's own conduct in response to the FRSA complaints was the ultimate proof of that problem: Metro North flatly refused to cooperate with OSHA's reasonable demands for documents while asserting ridiculous interpretations of the FRSA's broad remedial language. See this earlier blog entry where I predicted that such stonewalling will result in punitive damages.  These cases prove my point: the shortest distance between a FRSA complaint and a punitive damages award is for railroads to tell OSHA to go pound sand. The only thing that will get pounded is the railroad.

So for railroads across the country, the days of care-free retaliation are over. Refusing to change your ways is not an option. This action by OSHA proves the FRSA has sharp teeth that will shred recalcitrant railroads to pieces, while costing them real money. The message is clear: stop retaliating against employees, or get out your check book.

For more information on how the FRSA protects railroad workers, check out trainlawblog.com and trainlaw.com.

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