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

No matter what a railroad may try to tell you, a Federal Rail Safety Act claim under OSHA jurisdiction cannot be settled without the express written approval of OSHA. Here's why.

The FRSA itself states: "The rights and remedies in this section may not be waived by any agreement . . ." 49 USC 20109(h). And the regulations confirm that during OSHA's investigative phase, "the case may be settled if the Assistant Secretary, the complainant, and the respondent agree to a settlement." 29 CFR 1982.111(d)(1).

So what happens when there is a FELA General Release containing broad and unlimited language referring to the release of any and all matters? Can the railroad turn around and claim such a FELA Release waives any FRSA claims as well?

Short answer: no way. OSHA spells out what would happen:

If the parties do not submit their agreement to OSHA or if OSHA does not approve the agreement signed, OSHA must deny the withdrawal, inform the parties that the investigation will proceed, and issue Secretary's Findings on the merits of the case. The findings must include the statement that the parties reached a settlement that was either not submitted for review by OSHA or not approved by OSHA. 

Whistleblower Investigations Manual at Chapter Six, Section IV.D.4. So unless a FELA General Release specifically references a FRSA claim and has been approved by OSHA, it can not withdraw or bar any FRSA claim.

So what's a prudent attorney to do when a FELA Release has not been approved by OSHA? The best practice for all sides is either to exclude the FRSA entirely in body of the Release, or attach a rider to the Release along these lines:

Federal Rail Safety Act claims under the jurisdiction of OSHA’s Office of Whistleblower Protection cannot be withdrawn or settled without the express written approval of OSHA, and the parties hereby acknowledge that the attached General Release has not been submitted to OSHA and does not purport to waive any rights or remedies under the Federal Rail Safety Act.

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The damages for violations of the Federal Rail Safety Act just keep expanding. The latest record breaker goes against the Union Pacific Railroad: $175,000 in punitive damages and $100,000 for emotional distress, all for firing a conductor who reported a minor injury.

In addition to the immediate reinstatement, lost wages, and attorney fees ordered, this case is notable for the $100,000 in damages to compensate for the conductor's "distress, humiliation, depression, mental anguish, lessened self esteem, anxiety and embarrassment" resulting from the RR's actions. And also for the $175,00 in punitive damages, based on: the economic harm suffered by the employee; the fact the UP managers knew of the FRSA's prohibition against retaliation yet went ahead and retaliated anyway; and the UP's well established pattern of retaliation against employees who exercise their FRSA right to report work-related injuries.

So, hats off to Conductor Annen and her attorney for standing up and using the FRSA to expose the rottenness at the core of UP's management culture. For the full text of the Annen v. UP RR Merit Finding, click here.

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Talk about timing. I was on trial in federal court last week in a FELA injury case. The Railroad, no doubt hoping the U.S. Supreme Court would eliminate the FELA's long standing "even to the slightest degree" causation standard and replace it with the less favorable "proximate cause," had made a low ball offer and asked the Judge to charge the jury on the proximate cause standard. At 10:35 am on Thursday morning the Judge was ready to read his charge, but first turned to me and asked, "Mr. Goetsch, any word on the McBride Supreme Court decision?" I pulled out my IPhone and saw that only minutes before the Supreme Court had handed down the McBride decision upholding the FELA's "even to the slightest degree" standard. I replied, "Judge, the FELA remains intact. No reason to change the usual charge." The jury was charged accordingly, and later returned a verdict five times more than the Railroad's offer.

The purpose of the FELA is to promote safe railroad operations by allowing negligently injured workers to recover full jury damages. That's why Teddy Roosevelt pushed the FELA through Congress 103 years ago, to give the railroads an economic incentive to be safe. Last week the future of the FELA hung in the balance, but now we can thank the Supreme Court for upholding the FELA and refusing to cripple what is the original rail safety law. Somewhere, Teddy Roosevelt is smiling a big toothy grin. For the full decision in CSX Transportation Inc. v. McBride, click here.

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Add this to the growing chorus of judicial voices shouting down the bogus "election of remedies" defense raised by railroads. In a cogent decision, Judge Berlin confirms that Federal Rail Safety Act  complaints are independent of Railway Labor Act disciplinary proceedings and cannot be derailed by a RLA award reinstating an employee with back pay.

Here are the facts. Union Pacific employee Robert Powers reported an on the job injury, and his doctor put him on medical leave with medical restrictions. The Railroad secretly videotaped Powers doing certain activities it claimed violated his medical restrictions, and then fired him. Powers filed a FRSA retaliation complaint, and on his behalf the union appealed the termination to a RLA arbitration board. When the RLA Board reinstated Powers with back pay, the Railroad moved to dismiss his FRSA complaint, arguing that his use of the RLA process constituted an "election of remedies" barring a FRSA claim. Judge Berlin soundly rejected that argument. Here are some excerpts from the opinion:

The FRSA requires what it terms an "election of remedies" as follows: "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." 49 U.S.C. § 20109(f). The ultimate question presented here is whether the union's pursuit of a grievance, asserting on Complainant's behalf rights under a collective bargaining agreement, constitutes an election of remedies under the Federal Rail Safety Act and forecloses the present action.

At the RLA arbitration, the union was limited to the remedies that the collective bargaining agreement allowed. Those remedies did not include emotional distress or punitive damages. In contrast, the Federal Rail Safety Act allows these remedies. See 29 U.S.C. §20109(e)(2)(C), (e)(3) (providing compensatory damages plus possible punitive damages not to exceed $250,000).

The FRSA's election of remedies provision could apply only if the remedies available under the collective bargaining agreement are no less than those under the Act, which include compensatory damages and permissible punitive damages of at least $250,000. Nothing on the record suggests the collective bargaining agreement allows for such remedies.

The union's pursuing a grievance did not trigger the election of remedies provision in the Federal Rail Safety Act. It was an act of the union, not of Complainant, and it did not allege an "unlawful act' but was limited to a claimed breach of contract. It was based on the union's choice to pursue an avenue with lesser remedies than those that the statute affords.

I find that Union Pacific construes the election of remedies provision too broadly. Complainant is correct that his union's pursuit of a remedy under the collective bargaining agreement did not trigger the Act's election of remedies provision.

I conclude that, when a union chooses to pursue a grievance on behalf of an employee, it is acting as a union, and that this is distinct from an election of the individual employee to seek a remedy other than under the Federal Rail Safety Act. As the union, not Complainant, pursued the grievance, Complainant did not trigger the election of remedies provision in the Act.

Well said. For the full text of Judge Berlin's decision, click here.

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Federal Rail Safety Act Section 20109(c)(1) prohibits railroads from "deny[ing], delay[ing] or interfer[ing] with the medical or first aid treatment of an employee who is injured during the course of employment." In the first case to interpret the meaning of (c)(1), OSHA took the position the scope of that prohibition goes beyond initial medical treatment. However, the ALJ's post-trial decision adopted a narrower scope: "I conclude that Section 20109(c)(1)'s mandate prohibiting railroads from 'deny[ing], delay[ing] or interfere[ing] with medical or first aid treatment of an employee who is injured during employment' applies to the temporal period surrounding the injury."  Santiago v. Metro North at page 24. It remains to be seen if this narrower scope will prevail on appeal to the ARB or in the federal courts.

However, it is clear the scope of Section 20109(c)(2) is not so limited. Section (c)(2) mandates that railroads "may not discipline, or threaten discipline to, an employee . . . for following the orders or treatment plan of a treating physician." Thus (c)(2) explicitly prohibits railroads from disciplining an employee during the entire period of time the employee is following the orders or treatment plan of a treating doctor. And the absence in (c)(2) of any phrase qualifying that the employee must have been "injured during the course of employment" means that railroads are prohibited from disciplining any employee for following the orders or treatment plan of a treating doctor.  This means a railroad cannot use absences from work ordered by a treating doctor as a basis for attendance discipline.  And it means an employee cannot be disciplined for insubordination when he follows his doctor's order not to travel and thus refuses to travel to a railroad medical department appointment.

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Another Judge has ruled that the Railway Labor Act does not preclude Federal Rail Safety Act actions. To quote from the second post-trial ALJ FRSA decision to be handed down:

          The reach of the RLA is limited to disputes involving the interpretation or application of existing labor agreements. It does not address allegations or claims that the railroad violated federal statutes prohibiting discrimination against an employee. . . . The source of the instant claim is Sections 20109(a)(4) and 20109(c)(1) of the FRSA, which prohibit any railroad from discriminating against an employee for reporting a work injury and prohibits a railroad from denying, delaying or interfering with the medical or first aid treatment of an employee injured during the course of employment. Resolution of the question of whether Metro North discriminated against the Complainant requires interpretation and application of the FRSA and not the CBA between the parties. The present action is not preempted by the RLA. 

Anthony Santiago v. Metro North Commuter Railroad Co., Inc, 2009-FRS-00011 (September 14, 2010) at pages 14-15. For the complete decision, click here. More about this case to come.

Anthony Santiago v. Metro North Commuter Railroad Co., Inc

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The first two stages of grief are denial and anger. And when it comes to the Federal Rail Safety Act, railroads still are deeply mired in denial and anger. As a result, any time OSHA's Whistleblower Office hands down a FRSA award against a railroad, the railroad reacts with angry denial and automatically appeals for a de novo trial before an administrative law judge. Well, here is compelling evidence that such reflexive appeals of FRSA awards expose railroads to economic disaster.

In October 2008 OSHA ordered Amtrak to pay $20,000 in punitive damages plus back pay to a coach cleaner in Seattle who experienced retaliation after reporting an injury. Amtrak's denial toward the FRSA blinded it to the merits of the case, and out of anger at being ordered to pay punitive damages it reflexively appealed for a ALJ trial. The trial was held in June 2009 before ALJ Steven B. Berlin, and now ALJ Berlin has just issued a 29 page Decision and Order (the first to be issued by an ALJ after a de novo FRSA trial).

So what has Amtrak accomplished by its appeal? Let's see. Instead of paying $20,000 in punitive damages, now it must pay $100,000. Instead of paying no compensatory damages, now it must pay $60,000. Instead of paying no attorneys fees, now it must pay for the attorney fees and trial costs generated by BOTH sets of lawyers during the trial (that's right, Amtrak now must pay not only for its own attorneys but also for the employee's attorneys). So as a result of its denial and anger, the railroad will end up paying over ten times the amount of the OSHA award.  Not to mention establishing a foundation for even higher punitive damage awards against Amtrak in the future.

The lesson for railroads is clear: angry denial is not a viable defense strategy. Until you take off your blinders of denial, until you let go of your anger at the FRSA's threat to your management culture of retaliation, this pattern will be repeated again and again. Remember, the final stage of the grieving process is acceptance. The longer you stay stuck in denial and anger, the more it will cost you. And when you finally read the plain language of the FRSA's text with an open mind, and actually stop retaliating against employees who report injuries or safety concerns, it won't cost you a dime.

Stay tuned for more posts on the finer points of this important ground breaking Decision. For the full text of Nicole Anderson v. Amtrak, click here.

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