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

 A leading U.S. Circuit Court of Appeals has clarified when rail workers can recover damages for outrageous conduct by their employer railroad. Building on two cases that I handled (Metro North Railroad v. Buckley in the U.S. Supreme Court and Higgins v. Metro North Railroad in the Second Circuit), the Second Circuit Court of Appeals has declared that a worker can recover for a purely emotional injury (involving no physical impact) only if he or she was within a "zone of danger of physical impact."

 Goodrich v. LIRR involved an electrician who sought to recover under the Federal Employers Liability Act (FELA) for his emotional distress after a fellow worker intentionally posted his HIV positive status on a company bulletin board. The Circuit Court ruled that under the FELA the electrician could not recover because there was no physical impact or threat of physical impact involved. So no matter how outrageous the conduct, unless there is some physical impact or imminent threat of serious physical impact, under the FELA a railroad worker has no recovery for emotional distress.

But that is not the case if the worker is protected by the Federal Rail Safety Act. Under the FRSA, physical impact is not necessary for the recovery of emotional distress damages, and a worker can recover for any emotional distress resulting from a railroad's violation of his FRSA rights. And punitive damages up to $250,000 also are recoverable under the FRSA for outrageous conduct by the railroad.

So, even if a worker has no claim under the FELA for emotional distress, he still may be able to recover emotional distress damages under the FRSA. 

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There has been a flurry of Federal Rail Safety Act decisions in the past few weeks, all positive for workers, and all demonstrating a trend toward higher punitive damage awards.

Pfeifer v. Union Pacific Railroad concerns retaliation against a conductor who reported safety hazards. After he reported rough spots on the railroad track, he was subjected to increased field testing and ultimately suspended without pay. OSHA found that such conduct has a real chilling effect on the willingness of workers to report safety issues, and ordered Union Pacific to pay $100,000 in punitive damages for its "outrageous behavior and callous disregard for the rights of its employees."

Newman v. Union Pacific Railroad also concerns retaliation against a conductor who reported safety concerns. He was pulled out of service and permanently dismissed from service in retaliation for taking safety seriously enough to report safety hazards he noted in the right-of-way. OSHA ordered Union Pacific to pay over $250,000 in make whole damages, including $150,000 in punitive damages.

Wallis v. Burlington Northern Sante Fe Railway concerns a hostler who reported an injury and was subjected to the Railroad's infamous Personal Performance Index Point Distribution (PPI) policy, which assigns disciplinary points to injuries that are FRA reportable. The hostler was suspended without pay for 30 days, and OSHA found that Union Pacific's enforcement of its PPI policy for reporting a work-related injury violates the FRSA. OSHA ordered the Railroad to pay $150,000 in punitive damages, which reflects the FRSA's antipathy to system-wide policies of retaliation, and $125,000 for "mental pain and suffering," which reflects the solid medical evidence documenting the hostler's emotional distress.

Harvey v. Union Pacific Railroad concerns a locomotive engineer who reported an injury two months after it occurred. Despite the fact he was "a dedicated employee who had no history of prior poor performance or misconduct," Union Pacific terminated him for "failing to report an injury in a timely manner." However, OSHA found the engineer "was reasonable in delaying reporting his injury because he initially did not believe he had been so severely injured as to warrant putting himself at risk of retaliation for reporting the injury." The Railroad was ordered to pay $150,000 in punitive damages "for its egregious and willful behavior and for its disregard for the rights of its employees under FRSA." OSHA also ordered the Railroad to pay $75,000 for the "undue pain and suffering" it caused.

For OSHA's press release about the three Union Pacific cases, click here.  Over the past two years FRSA punitive damage awards have progressed from $75,000 to $100,000 to $125,000 and now to $150,000. But the railroads could care less. They have continued doing business as usual, or rather violations as usual, and their management culture of retaliation remains intact. If OSHA wants the railroads to take the FRSA seriously, it will have to increase punitive damage awards to the maximum allowed by law, and impose system-wide injunctions against every railroad's retaliatory policies and patterns of conduct.

But the message from these recent cases is clear: the path to six figure punitive and emotional distress damages is starting to get very well-trod, and promises to expand into a highway routinely traveled by thousands of workers if railroads continue to ignore the FRSA's mandate to treat the reporting of injuries and safety concerns as discipline-free events.

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While we await the Administrative Review Board's official burial notice for the railroads' bogus "election of remedies" argument, here is another nail in the coffin of that dead Federal Rail Safety Act defense: Thompson v. Norfolk Southern Railway Corp., where yet another Administrative Law Judge explains why "the FRSA does not prevent an individual who has appealed discipline pursuant to a collective bargaining agreement from pursuing a complaint under the FRSA." If anybody at the ARB is listening, hasn't this wake gone on long enough? Time to lay this issue to rest once and for all.

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As Yogi Berra would say, "It's starting to get late early out there" for the Norfolk Southern Railway. OSHA has blown the whistle on NS's campaign of retaliation against injured workers, and the Federal Rail Safety Act awards and punitive damages just keep piling up.

In the latest, Nelson v. Norfolk Southern Railway, OSHA's investigation confirmed that employees "are reluctant to report an injury and/or illness, fearing that they will be targeted and eventually terminated from employment." Which explains how NS has kept its injury rates low enough to receive "the prestigious E.H. Harriman Rail Safety Gold Medal Award for 22 consecutive years." Only in the railroad industry could managers receive a safety medal for suppressing the reporting of injuries.

OSHA notes the "chilling effect" of NS's "reckless disregard for the law" and points to how NS "has been cited previously by the Federal Railroad Administration for harassing and intimidating employees from reporting injuries" in violation of FRA regulations. OSHA concludes that NS's "disregard for Complainant's rights under FRSA warrants punitive damages" in the amount of $75,000, plus another $20,000 for emotional distress and $26,000 in attorney fees.

When it comes to railroads like the NS, all that glitters is not gold.

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Once again, OSHA has slammed Metro North Railroad with punitive damages for disregarding the Federal Rail Safety Act rights of its employees. This time it is for using prior injuries to deny promotions, and the resulting punitive damage award is $125,000.

Like many railroads, Metro North has a policy and practice of considering an employee's history of reporting injuries when evaluating that employee for a promotion. Here, ironworker Bill Ordner passed all the hurdles for a locomotive engineer job, but then, after the final background check phase, was handed a letter denying him the promotion with no explanation. He had reported injuries within the prior three years, and when Metro North refused to provide OSHA's Whistleblower Office with the information on which the denial was based, OSHA drew a negative inference against Metro North and concluded that Ordner's reporting of injuries was a contributing factor in Metro North's denial of the promotion.

Here are OSHA's words of warning to railroads nationwide:

Metro North automatically assigns points to an employee's personnel record, thereby subjecting the employee to other adverse consequences such as disqualification for promotion or craft transfer, solely for lawfully reporting a work-related injury. Metro North's enforcement of this policy, to the extent that it punishes employees for reporting work-related injuries, on its face violates FRSA. Such practices produce a chilling effect on reporting injuries in the workplace, jeopardizing employee safety. Furthermore, Metro North's refusal to provide OSHA with certain documents requested during this investigation is consistent with its conduct in past investigations. Metro North's pattern of refusal to provide OSHA with requested information during FRSA investigations demonstrates willful disregard for the law and the rights of its employees.

OSHA's make whole remedies include: ordering the Railroad to promote Ordner to the position of locomotive engineer with a seniority date of November 24, 2008 and full back pay; $125,000 in punitive damages; another $15,000 in emotional distress and attorney's fees; and the posting of the FRSA Notice to Employees in all 120 stations on the Railroad.

When will railroads learn that the FRSA has made the reporting of injuries a neutral, penalty-free event? For the full text of the Merit Finding, click here.

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Another railroad has been hit with Federal Rail Safety Act punitive damages for disciplining injured employees based on vague safety rules. This time it's the Burlington Northern Railroad, who charged a conductor with being "careless of the safety of yourself and others" after he reported an injury. At the disciplinary trial, the charging officer "testified that all injuries are preventable and because the conductor reported a work-injury, he must have violated that rule." Based on such Alice In Wonderland logic, the Railroad imposed a 30 day record suspension with a one year probation. But OSHA Whistleblower's Office was not impressed with such circular logic, and imposed an award of $75,000 in punitive damages and $25,000 for emotional distress. For the full text of the FRSA Award, click here.

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It's official. Thanks to the Federal Rail Safety Act, railroads can no longer impose discipline based on vague safety rules that are triggered only when a worker reports an injury.

Every railroad has so-called "safety" rules stating employees must "be alert and attentive" and "take care to prevent injury to themselves" and "when in doubt take the safe course." Any worker who reports an injury automatically is in violation of such rules, whose only function is to provide a basis to discipline workers who report injuries. In effect, such rules prohibit employees from being injured, and then are used as a bogus basis to discipline workers who report an injury.

Those days are over. In a case where a conductor slipped on ice and was suspended for ten days after the railroad found he "was not alert" and "caused an injury to himself" and "did not take the safe course," OSHA's Whistleblower Office slapped the railroad with $100,000 in FRSA punitive damages, plus $25,000 for emotional distress. From now on, railroads that uses such vague "safety" rules to discipline injured employees are just asking to get hit with FRSA punitive damages. For the full text of the FRSA Award, click here.

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Here's the latest judicial decision rejecting the bogus "election of remedies" defense railroads continue to raise in Federal Rail Safety Act cases. This one is especially sweet in that it allows a worker to continue her frontal attack against Norfolk Southern Railway's notorious practice of firing employees who report on duty injuries.

The facts are familiar to anyone who deals with Norfolk Southern. Latonya Milton reported an injury five days after the incident that caused the injury, and as usual NS fired her for filing an "untimely" injury report and for making "false and conflicting statements" regarding the reporting of her injury. She appealed the termination through her collective bargaining agreement, and also filed a FRSA complaint with OSHA's Whistleblower Office. NS argued that her CBA appeal was an "election of remedies" that precluded her from pursuing a FRSA claim.

Judge Malamphy rejected that argument, ruling Milton "is not precluded from appealing her termination pursuant to her collective bargaining agreement while simultaneously litigating this claim under the FRSA." NS asked for an immediate reconsideration, but to no avail. The Judge again concluded: "I find that the FRSA does not prevent an individual who has filed a grievance pursuant to a collective bargaining agreement from pursuing a complaint under the FRSA." How many times do judges have to rule before the railroads accept reality? For the complete text of both decisions, click here.

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Are you fed up with rail managers who habitually ignore safety rules and regulations, and then blame the workers who get hurt as a result of management's unsafe practices? Now you can do something about it. Here's how to disqualify such managers from ever working in the railroad industry again.

There is a little known Federal Rail Administration regulation that gives the FRA the power to permanently disqualify unsafe rail managers from railroad work. Entitled "Disqualification Procedures," it sets forth how the FRA bans managers and supervisors "who have demonstrated their unfitness to perform safety-sensitive functions by violating any rule, regulation, order, or standard prescribed by the FRA." It applies to all managers involved in a railroad's operations, track, equipment, or training departments.

The process begins when information about such a manager comes to the FRA's attention (more on that below). The FRA then issues a Notice of Proposed Disqualification charging the manager with violating one or more of the FRA's rules, regulations, or standards. The manager is then subjected to a public hearing before an administrative law judge where the FRA's Chief Counsel presents witnesses and documents proving the facts alleged in the Notice of Disqualification. If the charges are sustained, the judge then issues an order disqualifying the manager from any safety sensitive job on any railroad. The only appeal is to the FRA Administrator, whose decision is final and not subject to any further review. Thereafter any railroad that fails to inform prospective employers of a manager's disqualification or who actually hires a disqualified manager must pay penalties of up to $11,000 per day or $4 million per year.

Here's where you come in. In order for this process to work, the FRA needs to be provided with the information confirming a manager's violation of a safety rule or regulation. That means providing documents and the names of witnesses able to verify the manager's violation. So if you want to turn the tables on managers who ignore safety while blaming the workers who get hurt as a result, send a confidential email to charlie@trainlaw.com (or the designated legal counsel of your choice) explaining the manager's violation and listing the witnesses and documents that will confirm the violation. We will evaluate whether that information is strong enough for the FRA to pull the trigger on the unsafe manager.

And remember, if you do end up providing that information to the FRA, the Federal Rail Safety Act protects you from any retaliation by your employer railroad! So you have nothing to fear, and your co-workers and the FRA will thank you for it.

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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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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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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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The Federal Employers Liability Act is the law that protects rail workers who are injured or killed on the job. The most important FELA case to reach the United States Supreme Court in the last 50 years was argued this morning. At stake is whether the FELA's long recognized standard of relaxed causation---namely, that a railroad is liable for an employee's injury or death if it "results in whole or part, even to the slightest degree," from the negligence of the railroad---was going to be overturned and replaced with a higher hurdle more difficult for employees to clear.

Arguing on behalf of all railroad employees was David C. Frederick, a veteran Supreme Court advocate who did an excellent job explaining why the relaxed standard must remain in place. If you have never been to a Supreme Court oral argument, the transcript of this morning's argument is well worth reading to get a flavor of how our nation's highest court deals with issues that affect the entire country. For the transcript of CSX Transp., Inc. v. McBride, click here. A decision will be handed down by June, so stay tuned.

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Here is a classic example of how the Federal Rail Safety Act is correcting rail management's reflexive "blame the injured worker" mentality. The Railroad failed to provide the proper tool to do the task in question. So the worker used whatever was at hand to complete the task, just as many other workers had done with management's blessing and without being disciplined. But this time the worker was injured. So, instead of disciplining the managers who failed to provide the proper tool, the Railroad disciplined the worker for using "an improper tool."

Under the FRSA, this is an invitation to be slapped with punitive damages, and OSHA has done just that. Even though the worker only lost one day's pay, BNSF now must pay him $75,000 in punitive damages and $15,000 for emotional distress, plus attorney's fees, for a total of $95,096.  The FRSA has made retaliation against injured workers an indulgence that will cost railroads dearly. For the complete text of OSHA's BNSF Award, click here.

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The act of filing a Federal Rail Safety Act complaint with OSHA is itself a protected activity that cannot in any way be used against the employee. But co-workers are protected as well. Any co-worker who talks to an OSHA Whistleblower investigator or who cooperates with the OSHA FRSA investigation gains protection going forward from any retaliation by the Railroad. So any fellow worker who provides information to an FRSA investigator dons the same suit of protective armor against retaliation and wields the same shield and sword to strike back against retaliatory managers. In some circumstances, union reps may be able to leverage such FRSA protection to push back against disciplinary charges. The citation for the FRSA subsection providing such protection is 49 USC 20109(a)(3).

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Case law is beginning to clarify punitive damages under the Federal Rail Safety Act. Such damages are based on a railroad's callous indifference toward the FRSA rights of its employees. Here is some conduct justifying the imposition of FRSA punitive damages:

• discouraging employees from filing injury reports or raising safety concerns
• targeting for closer scrutiny employees who report injuries or raise safety concerns
• blaming an injured employee without addressing the underlying systemic causes of the particular injury
• disciplining employees who report injuries without disciplining the managers who contributed to the circumstances that made the injury possible
• attempting to influence employee medical care or otherwise interfering with medical treatment
• disciplining employees who follow the orders or treatment plans of their treating doctors
• tying compensation of supervisors or managers to injury statistics or goals
• failing to have a HR manager or attorney review disciplinary actions to assure compliance with the FRSA

The leading FRSA punitive damages case to date is Anderson v. Amtrak. The Judge there discussed this type of conduct and awarded $100,000 in punitive damages, noting "At this point, Amtrak is on clear notice that these practices exist; any continuing failure to remedy them could amount to further and additional conscious disregard of its obligations." That Judge recently denied Amtrak's Motion For Reconsideration, noting:

Amtrak neglects that part of the reason for punitive damages is to punish those who act in conscious disregard of an employee's federally protected rights. As to the deterrent effect of punitive damages, Amtrak . . . has offered nothing to show that its culture has changed, that employees no longer feel deterred from reporting injuries, and that managers responding to employees' injury reports now respect those employees' federally protected rights.

Haunting words indeed for railroads nationwide. Managers ignore them at their peril. For the full text of both decisions, go to the Punitive Damages section of FRSA Library.

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OSHA's Whistleblower Office will never approve a Federal Rail Safety Act settlement that includes confidentiality. Why? Because the FRSA is supposed to remedy the chilling effects of retaliatory actions, not lock them in. And in the railroad grapevine, no retaliatory action goes unnoticed. When employees see a co-worker hammered after raising safety, injury, or fraud concerns, it exercises a profound chilling effect on their willingness to do the same. The only way to remedy that chilling effect is to publicly hold railroads accountable for their violations of the FRSA, which is why OSHA issues press releases announcing FRSA findings against railroads.

But for lawyers, insisting on or agreeing to confidentiality clauses in FRSA settlements invites charges of unethical conduct. Here's why.

Under Rule 3.4(f) of the Model Rules of Professional Conduct, a railroad attorney cannot ethically propose a settlement agreement that prevents a FRSA complainant from giving relevant factual information to other railroad workers or OSHA. Here is a quote from the leading article on the subject:

Proposed settlement clauses that would expressly bar the plaintiff from voluntarily cooperating with parties, agencies, or lawyers who are suing or investigating the defendant clearly run afoul of Rule 3.4(f), even if they allow for disclosures in response to a subpoena. Equally important, blanket confidentiality clauses that bar any discussion of the underlying facts and make no exception for disclosures of relevant information to other litigants violate the rule as well.

Malone and Bauer, "Unethical Secret Settlements: Just Say No," Trial (Sept. 2010). Click here for a version of the Trial article, and click here for a more in-depth discussion by Prof. Jon Bauer in the Oregon Law Review. Given the FRSA's provision for punitive damages, it is especially important for OSHA's Whistleblower Office to have unfettered access to all information relevant to their FRSA investigations. Rail workers simply cannot be barred from sharing their FRSA complaint experiences with OSHA or with co-workers and their attorneys.

And if a FRSA complaint stems from a rail worker's work related injury, it would be a federal crime for a railroad attorney even to attempt to prevent a FRSA complainant from voluntarily furnishing information regarding his injury that is relevant to another worker's injury. Section 60 of the FELA makes it a federal crime for a railroad or its attorney to attempt to prohibit such sharing of information among co-workers. 45 USC 60.

Moreover, Rule 5.6(b) of the Model Rules prohibits lawyers from participating in any settlement agreement that restricts a lawyer's right to practice. Again, to quote Malone and Bauer's analysis:

settlements that prohibit a plaintiff lawyer from using any information obtained during the case have been found to violate the rule, because such a promise would interfere with the lawyer's ability to provide effective representation to others suing the same defendant.

So here's the message to rail labor attorneys representing FRSA complainants: other than the dollar amount of a settlement, just say no to confidentiality in FRSA cases. And here's the message to railroad attorneys defending FRSA cases: don't even think about asking for confidentiality, unless of course you enjoy being the subject of bar disciplinary committee proceedings.

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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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Teddy Roosevelt would be proud. 102 years after he signed the original rail safety statute into law, the Federal Employers Liability Act is still doing its job: exposing the unsafe practices of railroads and holding railroads accountable for the employee injuries that result.

The sad truth is, rail managers habitually ignore their own responsibility for the unsafe conditions that injure workers and instead focus all blame on the victim. This has the noxious effect of leaving the root cause of injuries in place, thereby prolonging the risk and guaranteeing more employee injuries. But in the right hands, the FELA is a powerful weapon that can pierce the armor of rail management denial and expose the truth about unsafe work practices. The remarkable story of electrician Jim Deacon is a case in point (see below for news links)

One of the most horrifying dangers on any railroad is a high voltage electrical arc explosion. During an arc explosion metal melts into a superheated plasma that engulfs workers in a fireball hotter than surface of sun, and is usually caused by defective cable connections. To prevent arc explosions, railroads must routinely inspect electrical equipment to confirm all connections are secure.  And to completely eliminate the risk of arc explosions, railroads must deenergize the power before employees begin working on the equipment.

On October 30, 2006, electrical tester Jim Deacon was assigned to work inside a third rail sectionalizing switch box that was an arc explosion waiting to happen. Because Metro North had not inspected that box, Metro North did not know there was a positive 700 volt cable under a metal motor housing that was completely disconnected and touching the metal housing, thus electrifying it. When Jim took off his protective gloves in order to thread a narrow #6 negative wire (following the practice in the field), the negative wire happened to touch the improperly electrified metal motor housing, sparking an arc explosion fireball. Jim spent a week in the Burn Unit with second and third degree burns over 15% of his body. Over the next year he endured three surgeries with multiple skin grafts.

And what of Jim's Metro North managers? Instead of taking responsibility for causing the explosion by their unsafe practice of not inspecting and not deenergizing, Metro North blamed Jim for his injury and disciplined him for not wearing gloves at the moment of the explosion. And instead of preserving the crucial evidence, the managers destroyed the cable end and connector barrel involved in the explosion, and denied they had shot any videotape during their investigation. Fortunately an anonymous source mailed Jim a copy of the video shot by the top manager showing him personally ordering workers to reach inside the live box without protective gloves on, the very same act for which the manager disciplined Jim.

Jim returned to work in the Metro North Power Department for 17 months, but the ongoing unfair blame and unsafe working conditions took a severe toll on his psychological condition, to the point he was medically disqualified from working.

But the FELA finally forced the Railroad to admit the truth. After 3.5 years of blaming Jim, on the eve of trial Metro North admitted the explosion was caused by its negligence and that Jim did not contribute to his injuries in any way. This crucial vindication--plus the $1.1 million Metro North will pay Jim--would not have happened without the FELA.

So Teddy Roosevelt's rail safety law is indeed working as intended. For a two minute video regarding the arc explosion, go to the New Haven Register news site, where a copy of rail safety expert James Sottile's excellent Report detailing the failures of Metro North management is available as well.

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The largest award under the  Federal Rail Safety Act  has just been handed down against New Jersey Transit Rail. OSHA's Whistleblower Office found NJ Transit violated the FRSA by disciplining a worker in retaliation for his reporting an injury, and has ordered the payment of $570,000 in damages to make him whole. This Award is historic not only because of its size, but because of the broad spectrum of its "make whole" damages, including punitive damages and damages for ruining his credit.

The worker--my client conductor Anthony Araujo--witnessed a fatal 13,000 volt electric arc explosion involving a contractor crew. In such a situation, if NJ Transit had any grounds for believing Tony had contributed to the incident, federal regulations required the Railroad to drug and alcohol test him. However, after extensive interrogation, NJ Transit told Tony he had done nothing wrong, and confirmed that by not testing him for drugs and alcohol.

Tony then was sent to the Railroad's EAP for counseling, and the EAP Senior Counselor informed him he was not able to work and referred him for immediate treatment. This resulted in a lost time reportable injury. The next day the NJ Transit General Superintendent called the EAP to complain, and soon after filed disciplinary charges claiming Tony contributed to the fatal incident after all. Over the next year, the Railroad denied Tony his EAP benefits and then suspended him without pay. As a result of his lost income, Tony's credit rating plummeted, his car was repossessed, and the bank foreclosed on his home, generating significant mental distress.

The FRSA is notable because it creates a statutory right for rail workers to win punitive damages against their employer railroads.  OSHA's investigation here found that because NJ Transit's "conduct in retaliation against an employee for reporting an FRA reportable lost time injury exhibited reckless disregard for the law and complete indifference to complainant's rights," punitive damages are warranted.  Unless and until rail managers respect the FRSA rights of their workers, punitive damage awards will be routine.

In the past, railroads were free to discipline employees without having to worry about paying economic damages beyond limited back pay.  Those days are now over.  This Award makes clear railroads will pay full damages for all of the economic losses their retaliatory discipline inflicts on workers, including the value of homes and cars lost as a result of employees being forced out of work. For the full text of the Araujo Award, click here. For OSHA's Press Release, click here.

This case strips bare the retaliatory mentality of rail managers. With my help, Anthony Araujo was able to stand up for his FRSA rights and do his part in labor's crusade to transform the retaliatory culture of rail management. This Award confirms that the FRSA hands to every rail worker the sword and shield necessary to wage that crusade. And the message of this Award to railroads is loud and clear: your world has changed, and managers ignore the FRSA at their peril. So here's to Tony, and to the thousands of long suffering railroad workers who will be following the trail he blazed.

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The first Federal Rail Safety Act complaint against the Port Authority Trans-Hudson railroad has resulted in an award of punitive damages. The fact pattern is familiar to any railroad worker.

Laura, a Signal Tester, was injured on duty due to defective equipment, and duly reported her injury. But instead of using the incident as an opportunity to identify and correct the root cause of the safety hazard (namely, why the railroad allowed the defective equipment to remain in use), PATH's Superintendent sent her a disciplinary charge letter alleging the injury was solely her fault. A typical "blame the victim and ignore the systemic cause" reaction by rail management that happens every day on railroads across the nation, and is a major reason why safety hazards persist.

But things have changed. The FRSA is in effect now, and with my help Laura stood up for her FRSA right to be protected from such retaliatory action. OSHA conducted a thorough investigation, and found that no one else was charged with any safety violations for allowing the defective equipment to remain in use, and that the Railroad could have investigated the circumstances of the incident without ordering the injured employee to face a disciplinary hearing. OSHA concluded that if Laura had not reported an injury, no charge letter would have been sent.

What is interesting here is that Laura did not actually attend any disciplinary hearing or suffer any discipline. She just received an initial charge letter. And OSHA ruled such conduct is a violation of the FRSA that must be remedied. To make Laura whole, OSHA ordered PATH to expunge her disciplinary records and pay punitive damages and attorney fees. Of particular interest is the empowering NOTICE TO EMPLOYEES the Railroad must post on all of its bulletin boards.

So here's to Laura! By standing up for her FRSA rights she is at the forefront of a grass roots movement of workers acting to correct the imbalance of power between rail labor and management.

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When rail labor works together, good things happen. Case in point: a critical meeting last September 15th with the Department of Labor regarding the true meaning of "election of remedies" under the Federal Rail Safety Act (FRSA) is now bearing fruit.

In early September, the DOL appeared headed toward accepting rail management's argument that an employee's participation in the Railway Labor Act (RLA) process constitutes an irrevocable "election of remedies" barring the employee from the protections of the FRSA. However, the DOL asked to hear rail labor's point of view, and invited a few rail labor attorneys to attend a September 15th summit to discuss the issue.

As the attorney who first weighed in on this issue and was set to try the first FRSA cases in November, the DOL asked me to attend. What happened next illustrates the power of working together. BMWED Director of Safety Rick Inclima and St. Paul rail labor attorney Charlie Collins reached out to the invitees, urging us to coordinate our efforts for maximum effect and offering the IBT's Headquarters as a location for us to meet beforehand. And coordinate we did. In addition to Rick and Charlie, Jim Farina and Steve Garmisa showed up from Hoey & Farina in Chicago, as did San Diego rail labor atorney Harry Zanville and UTU Associate General Counsel Kevin Brodar from Cleveland.

We put our heads together. Our challenge was to convince the DOL that the FRSA and the RLA exist on separate parallel tracks with neither one excluding the other. To do that, we had to explain the very real practical differences between the RLA process and the whistleblower protections of the FRSA. It was agreed I would kick off the discussion, and that afternoon we met with high level personnel from the DOL's Solicitor General Office and Directorate of Enforcement Programs.

We had an intense back and forth for over two hours. I opened it up by pointing out that the purpose of the FRSA is to change rail management's culture of retaliation, and the way to do that is to allow the FRSA to operate independently of the RLA. By the end of the meeting I believe we were able to open up DOL's eyes to the fact that RLA proceedings simply do not address or remedy whistleblower retaliation, and that the interpretation sought by rail management would eviscerate the FRSA and return us to the unacceptable status quo before Congress enacted the FRSA.

Now it appears our efforts are bearing fruit. The DOL's Assistant Secretary for OSHA just asked to file an amicus appeal brief with the Administrative Review Board on the issue of "election of remedies," and the BMWED put out a Press Release noting the tide has turned. The sense we are getting is that OSHA now is directing its Whistleblower investigators to conduct their FRSA investigations regardless of any RLA proceedings. And so, thanks to the cooperative efforts of rail labor, the FRSA and RLA will forever operate on separate parallel tracks, where they belong.

BMWED President Freddie Simpson said it best in his Press Release: "Railroads will no longer be able to retaliate against railroad employees who report injuries and safety violations with impunity. This is a substantial victory for all of Rail Labor and every rail worker nationwide, and I am proud that BMWED led the way to this important victory." And to that I can only add, "Amend brother!"

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Here's a quick look back at some of this year's notable developments in the rail safety world:

March: FRA bans railroad supervisors from medical examining rooms: click here

June: OSHA's Whistleblower Office issues $300,000 in punitive damages against Metro North Railroad for violations of the Federal Rail Safety Act FRSA, setting important precedent: click here

October: Judge confirms FRSA punitive damages apply to publicly owned commuter railroads:click here

November: Judge confirms FRSA prohibits railroads from interfering with the medical treatment plan of employees' treating doctors: click here

November: the first trial in the nation of a FRSA complaint is held in New Haven, Connecticut, against Metro North Railroad (stay tuned for the Judge's decision in early 2010)

And looking forward to 2010, here's hoping:

---for more rulings rejecting rail management's bogus argument that the participation of employees in Railway Labor Act disciplinary proceedings somehow constitutes an "election of remedies" that bars them from the whistleblower protections of the FRSA;

---for judicial rulings establishing that under the FRSA, an employee's treating doctor "trumps" over whatever a railroad manager or medical department may think or want to do;

---to increase the beneficial effect of the FRSA's sister law, the NTSSA (which protects subway system employees who raise safety concerns) by encouraging its application on major subway systems such as New York City Transit and the Washington DC Metro.

Meanwhile, here's wishing everyone a safe and productive new year!

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Railroad Medical Departments, beware, you can no longer interfere with an injured employee's medical treatment. Subsection (c) of the Federal Rail Safety Act prohibits a railroad from denying, delaying, or interfering with the medical treatment of an injured employee. The FRSA also prohibits a railroad from disciplining an employee for following the orders or treatment plan of his treating doctor. The railroads argue this FRSA protection only applies to an injured employee's emergency medical treatment. But in the first decision interpreting the meaning and scope of FRSA subsection (c), Administrative Law Judge Colleen A. Geraghty has made it clear the FRSA's

provisions protect employees from interference with medical care or the treatment plan of a treating physician during the course of treatment and recovery from a work injury. . . . Accordingly, an employer's changing the classification of an injury occurring at the workplace to a non-occupational injury may rise to the level of "interference with medical treatment" depending on the circumstances. 

For a link to the full opinion, click Santiago v. Metro North Railroad. Metro North had reported Santiago's on the job injury to the FRA as occupational and paid for Santiago's medical bills accordingly. But then in the middle of his treatment, the Metro North Medical Department unilaterally reclassified Santiago's injury as non-occupational (without amending its FRA report), thus forcing him to choose between forgoing his treating doctor's medical treatment plan or paying for it from his own funds. The result? He now has personally paid or owes over $16,000 in medical bills. His case is going to trial next week. Stay tuned for any punitive damage award.

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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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 Some people just don't get it. CSX Transportation managers definitely fall into that group. In a lengthy Investigative Report released in March of 2008, the Federal Railroad Administration put CSX on notice that its management culture of harassment and intimidation intended to dissuade employees from reporting injuries had to stop. In response, CSXT made numerous representations to the FRA promising to change its behavior.

But guess what? The complaints of harassment and intimidation just kept flowing in to the FRA as if nothing had happened. By January of 2009, the FRA had had enough. On January 16th, the Acting Administrator of the FRA, Clifford C. Eby, issued a blistering three page letter to CSX Transportation President and Chief Executive Michael Ward. Eby pointed to the ongoing complaints despite the CSX's list of promises, and concluded: "It is clear that CSXT has failed to adequately address its culture of harassment and intimidation. . . . CSXT has not yet fulfilled its commitments made to FRA regarding harassment and intimidation. . . . the evidence shows that CSXT's response has been inadequate. In order to truly prevent any more instances of intimidation, CSXT must put forth a sustained good-faith effort to change its culture." For the FRA 01/16/09 letter, click here .

Clearly, the FRA's patience has run out. If CSX doesn't change its hostile management culture and change it quick, the FRA will step in and slap a compliance order on the CSX, putting the daily actions of CSX managers and supervisors under FRA oversight.

Meanwhile, whenever a CSX manager intimidates or retaliates against an injured employee, the new amendments to the Federal Railroad Safety Act allow that employee to file a FRSA retaliation complaint with OSHA's Whistleblower Office. And if OSHA does not promptly resolve the complaint, the employee can jump into federal court and have a jury award punitive damages of up to $250,000 against CSX. If the number of FRSA complaints coming out of places like CSX's West Springfield Yard in Massachusetts is any indication, federal juries are going to be very, very busy awarding punitive damages against railroads like CSX.

So while changing CSX's hostile management culture may be a tough nut to crack, the FRA and FRSA are like the pincer arms of a nutcracker, and CSX's nut is now caught firmly in that nutcracker's grip. With the increasing pressure being exerted by the FRA and the FRSA, it is only a matter of time before CSX's nut cracks wide open. 

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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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As the saying goes, knowledge is power. Here's an amazing new law that every rail worker should know about. The Federal Railroad Safety Act (FRSA), 29 U.S.C. Section 20109, hands employees a shield and a sword to fight back against rail managers who heretofore have retaliated against workers with impunity.

The FRSA prohibits retaliation whenever employees engage in certain "protected activity." For example, when a worker reports an on-the-job injury or occupational illness, the railroad is now prohibited from discrimination or retaliating in any way against that worker. Now, if an employee reports his own or a co-workers on-the-job injury and then his railroad disciplines, reprimands, fires, lays off, demotes, intimidates, denies promotion or benefits, or in any other way retaliates against that employee, the employee can file a complaint with OSHA that ultimately can lead to a federal court jury award making the employee whole and awarding punitive damages of up to $250,000.

This is the first time that rail workers have had the potential to win punitive damages against their employer railroad. Punitive damages are designed to "send a message" to a defendants by punishing them for a pattern of unaccepatable conduct. When a railroad retaliates against employees who report injuries on a system-wide basis, this new FRSA law allows juries to impose punitive damages that will discourage the railroad from continuing its course of retaliatory conduct.

There is a very short window of days within which employees can file their initial OSHA complaint: 180 days from the time the railroad indicates a desire or intent to discipline the employee. For example, this means 180 days from the date a railroad notifies a worker that it will be conducting a disciplinary hearing or trial. Failure to file the OSHA complaint within that 180 days is fatal to the worker's claim.

When an employee invokes this new law, it is as if he dons a suit of armor against any future retaliation. It protects him against any future attempt by his railroad supervisors or managers to get back at him for filing the complaint. And his co-workers who talk to OSHA about the complaint also gain the same suit of armor protecting them from such future retaliation. This is true even if the original OSHA complaint does not result in any formal action against the railroad. It is true even if the worker's injury does not qualify as a FELA injury. So this really is a game changing law that helps level the playing field for rail workers, and every employee should be familiar with it.

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Welcome to Train Law Blog, where all things of legal interest to railroad employees and rail labor representatives are considered.

Railroad workers live in a subculture governed by a melange of esoteric federal statutes and agencies most people (and attorneys) have never heard of: the Railway Labor Act (RLA) and the National Mediation Board (NMB); the Federal Railroad Safety Act (FRSA) and the Federal Railroad Administration (FRA); the Federal Employers' Liability Act (FELA) and Safety Appliance Acts (SAA); the Railroad Retirement Board (RRB); and the Family Medical Leave Act (FMLA). As a result of these special laws, the labor, safety, pension, and job injury issues that arise for railroad employees are unique. This blog will highlight developments in the realm of railroad law and discuss how they affect the lives of railroad workers and rail labor representatives. From rail safety to railroad accidents and from collective bargaining to railroad strikes, if it is of interest to railroad people, this blog will look at it.

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