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

The Federal Rail Safety Act prohibits a railroad from "discriminating in any way" against an employee who engages in the protected activity of raising a safety concern or reporting an injury. Such discrimination can take many forms, but two recent decisions highlight a classic example: namely, treating a worker differently from other similarly situated workers.

In Gunderson & Peterson v. BNSF Railway Co., AL J Paul C. Johnson, Jr. confirms that the FRSA prohibits a railroad from singling out for discipline an employee who engages in protected activity while ignoring similarly situated employees. Peterson was fired for accessing certain personal information relating to other employees, and Gunderson was fired for using "rough language" while talking to a supervisor. But Judge Johnson denied summary judgment because the Railroad "presented no evidence that it has terminated other employees for similar behavior." As such, the Railroad could not prove by "clear and convincing evidence" that it would have taken the same action even in the absence of the protected activity.

The facts of Infermo v. New Jersey Transit Rail Operations, Inc. are indeed classic. Infermo and his co-worker Gelmi are walking on ballast along the right of way. Both stumble in a washed out area, but only Infermo falls and is injured. He reports the injury, and is disciplined for violating the railroad's absurdly vague safety rules ("Employees must be aware of their surroundings . . . Employees must be alert and watch where they are walking"). His co-worker is not disciplined, nor are the railroad managers responsible for allowing the hazardous condition to exist.

The Railroad argued it legitimately disciplined Infermo because he did in fact violate those safety rules, but in denying summary judgment Senior U.S. District Judge Stanley Chesler explained why a FRSA jury would be entitled to reject that articulated reason:

his work partner [Gelmi] was walking along the same allegedly hazardous path and would have presumably, according to NJT's rationale for disciplining Infermo, failed to avoid the same tripping hazards. Indeed, Gelmi testified that he, too, lost his footing on the right of way but, unlike Infermo, was able to steady himself and avoid falling. Gelmi was not charged with any safety violations, nor required to attend any safety counseling. Infermo points out that the only difference between his conduct and Gelmi's conduct on the day in question is that Infermo suffered an injury whereas Gelmi did not. This evidence, the Court finds, casts doubt on NJT's articulated legitimate reason and would permit a jury to disbelieve it.

So the message is clear: unless a railroad disciplines everyone whose actions or inaction contributed to the injury incident (including managers), it can not single out the injured worker for discipline without violating the FRSA and inviting a jury to impose punitive damages.

Call me crazy, but there is an alternative: don't discipline anyone. Instead, take all the energy spent on disciplining the injured worker and redirect it toward identifying and correcting the causes of the hazardous condition so it will not injure again. That would truly promote safety while completely avoiding hefty FRSA damages. Just a thought.

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Every year since 1913, the railroads with the lowest number of injuries reported to the FRA have been awarded the E.H. Harriman Memorial Safety Awards. No more. The rail industry has announced that after the awards ceremony in May 2012, the E.H.Harriman Awards will be discontinued.

But when it comes to rail safety, it would be a real shame not to give credit where credit is due. Fortunately, the criteria for a new rail safety award is now at hand. And so trainlawblog is pleased to announce the first annual P.U. Harassment Award. The prestigious P.U. Harassment Award is based on data compiled by OSHA's Office of Whistleblower Protection (and obtained through the Freedom of Information Act), and honors the railroad that has generated the highest number of Federal Rail Safety Act retaliation merit findings.

In addition to highlighting the callous disregard of railroads for the rights of its employees, the P.U. Harassment Award celebrates rail management's relentless determination to suppress the reporting of injuries and safety concerns through the imaginative use of retaliatory discipline and discrimination.

So, without further adieu, trainlawblog hereby announces that the First Annual P.U. Harassment Award goes to the Union Pacific Railroad Company, in recognition of the nine Merit Findings its conduct has garnered to date. But the Norfolk Southern Railway is right behind with eight Merit Findings to date, and thus deserves Honorable Mention. And by this time next year the BNSF Railway Company will have a real chance to claim the Award, because it has well over 100 FRSA complaints pending decision, the most of any railroad in the nation!

So, congratulations to you winners! And to all you runner up railroads, remember that 2012 provides another 365 days of opportunity for you to demonstrate just how recklessly retaliatory you can be!

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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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If a railroad worker wins his Federal Rail Safety Act complaint, the railroad has to pay all his attorney fees. But if a FRSA complaint fails, the railroad cannot recover any attorney fees or costs against the worker.

Administrative Law Judge Adele H. Odegard's decision in Vason v. Port Authority Trans Hudson (PATH) explains why: unlike the NTSSA, the FRSA does not provide for any award of attorney fees on behalf of a railroad. So don't let a railroad threaten you with the prospect of paying their attorney fees: it can never happen, even if your FRSA complaint fails.

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Instead of naming the railroad, workers are free to name a manager as the defendant in a Federal Rail Safety Act complaint. And there are good reasons for doing so.

When a manager is singled out as illegally retaliating against workers, it is a form of public "shaming" that does not help his future career prospects. It also raises the unsettling potential for that manager to be held personally liable for any economic damages, thus making him think twice before retaliating again. And it creates an official record that can be used as a basis for a FRA disqualification of that manager from working in the railroad industry. For an explanation of how to disqualify such managers, click here.

So managers who retaliate should be prepared to suffer all the negative consequences of being personally named as the defendant in a FRSA complaint.

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In an important decision clarifying the broad scope of adverse action under the Federal Rail Safety Act, Judge Theresa C. Timlin confirms that the mere act of filing of charges against an injured railroad employee is an unfavorable personnel action sufficient to support a FRSA violation.

The facts in Vernace v. PATH Rail are: after a signal tester reported an injury, the Railroad sent a disciplinary charge letter scheduling an investigation; however, the investigation hearing was never held, and the Railroad eventually dropped the charges.

The worker contended that the filing of charges scheduling a disciplinary hearing is in and of itself an adverse unfavorable personnel action, whereas the Railroad argued no adverse action took place because the employee was not actually disciplined in any way. OSHA ruled in the worker's favor, and then a full trial was held before Administrative Law Judge Timlin.

Judge Timlin began her analysis by pointing out that whistleblower laws such as the FRSA "consistently have been recognized as remedial statutes warranting broad interpretation and application." Indeed, the ARB stresses that the list of prohibited activities is quite broad, and includes reprimands (verbal or written), written warnings, and counseling sessions where the potential for future discipline is implied. And in fact the ARB holds that the scope of adverse action under whistleblower laws is even broader than the scope of adverse action under the Supreme Court's Burlington Northern v. White Title VII standard.

In ruling that the charge letter alone is a violation of the FRSA, Judge Timlin stressed that such action is not trivial:

an employer should never be permitted to deliberately single out an employees for unfavorable employment action as retaliation for protected whistleblower activity. . . .

The filing of charges against an employee is not de minimis harm. Those charges are the first step in a disciplinary process that has the potential to culminate in a warning, suspension, or termination. Once charges have been sustained and discipline meted out, the employee is then susceptible to a higher degree of punishment if he or she commits a subsequent offense. This is likely to have a chilling effect on reasonable employees, who may be dissuaded from filing injury reports for fear of being charged with safety violations and potentially being disciplined. Indeed, Complainant employee said she considered the charge letter and hearing to be very serious because she was afraid that money, lost time, and promotions were at risk due to the charges against her. . . .

The Railroad's contention that no adverse action occurred in this case because Complainant was never actually disciplined in contrary to the law. I find the filing of charges against Complainant which carried the potential for future discipline was an unfavorable personnel action.

Vernace v. PATH Rail at pages 24-27. For the full decision, click here. The moral is, once a railroad serves an employee with a charge letter, it cannot escape a FRSA violation even if it cancels the hearing and drops the charges.

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The long wait is over. The Administrative Review Board has officially laid the railroad's bogus "election of remedies" defense to rest. In Mercier v. Union Pacific Railroad Co., the ARB has declared once and for all that rail workers are entitled to simultaneously pursue their rights under the Federal Rail Safety Act while also defending themselves under their collective bargaining agreement.

This confirms a worker does not waive his right to pursue a FRSA whistleblower complaint just because he also invokes his CBA right to contest a railroad's decision to impose discipline.  The best way to conceptualize this is to imagine two parallel tracks that never intersect or interfere with the other. On one track the union pursues the RLA arbitration rights of its members. On the other track the worker is free to pursue his FRSA whistleblower protection rights.

All good things come to those who wait. For a list of prior blog posts on the election of remedies issue, click here.

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OSHA's Whistleblower Office has issued a revised and updated Whistleblower Investigations Manual that applies to complaints under the Federal Rail Safety Act. The Manual explains the process from start to finish, and workers and attorneys will find it useful to orient themselves as to the steps involved in FRSA complaints.

Two points of note: the Manual confirms OSHA investigators are to provide a copy of the railroad's response to the complainant, and confirms OSHA takes the position that the FRSA "election of remedies" subsection "does not preclude a FRSA complaint where an employee has pursued a grievance and/or arbitration pursuant to the employee's collective bargaining agreement."

For the complete text of the new Whistleblower Investigations Manual, click here. Tip: the Manual is very lengthy and covers a dozen different whistleblower laws, so use the Table of Contents to identify relevant sections to print out.

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It's one of the hoariest acts in the railroad repertoire of retaliation: first, invent rules setting an arbitrary deadline for the reporting of injuries, and then use the threat of discipline under those rules to discourage the reporting of injuries. Classic examples of absurd reporting rules are Metro North Railroad's "all injuries must be reported immediately" and CSX Transportation's "all injuries must be reported prior to the end of the shift." Such arbitrary rules outlaw entire categories of FRA reportable injuries.

No more. Under the Federal Rail Safety Act, the reporting of injuries cannot be used as the basis for discipline. And because any discipline for "late reporting" is necessarily based on the reporting of an injury, it is a prima facie violation of the FRSA. And railroads who continue to discipline for "late reporting" are getting slammed with record high punitive damages. See, for example, Harvey v. Union Pacific Railroad.

So, thanks to the FRSA, there is no longer any such thing as the "late reporting" of an injury. The railroad repertoire of retaliation just keeps getting smaller and smaller.

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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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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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This entry honors the memory of Roger M. Lenfest, Jr., a courageous rail labor leader who has left us too soon. Roger’s railroad career spanned 40 years, most recently as a United Transportation Union General Chairman representing conductors on various carriers. But Roger's defining moment as a union rep came in 1985, when he was General Chairman for the conductors on the Boston commuter lines operated by Tim Mellon’s B & M Railroad.

Roger raised a safety issue about the lack of flagmen at construction sites on the mainline, and the B & M Railroad responded by firing one of his local chairman. The next morning, on November 4, 1985, Roger shut down the commuter rail service for the Boston region by ordering an unprecedented system-wide refusal to work under hazardous conditions. The B & M immediately obtained a temporary restraining order from the United States District Court in Boston ordering all employees back to work. The Railroad then fired all of Roger’s local chairmen and placed liens on their homes for millions of dollars in civil damages.

The trial judge ruled for the Railroad, but Roger kept the faith, and on September 2, 1986 the First Circuit Court of Appeals decided the first case ever under the original Federal Rail Safety Act when it issued a landmark decision overturning the trial judge and ruling that Roger's action was not an illegal strike but rather a refusal to work under hazardous conditions protected by the Federal Railroad Safety Act. B & M Corp. vs. Lenfest, et al., 799 F.2d 795 (1st Cir. 1986). We forced the Railroad to immediately reinstate Roger’s local chairmen and withdraw the liens on their homes. Roger then went on to win over $400,000 in back wages for his local chairmen in arbitration.

Here are the words from the Circuit Court decision establishing "the Lenfest principle":

To hold that union leaders can call for a concerted work stoppage only at the risk of being found liable for instigating an illegal strike is to place them in the position of having to choose between their own welfare and the lives of the employees. This is contrary to what Congress intended. We hold that where hazardous working conditions are the result of a system-wide failure to provide adequate protection so that employees are in danger of death or serious injury without knowing it, and the Union is aware of such danger, the Union may call a concerted work stoppage under the FRSA to protect the lives and safety of the employees.

The Railroad petitioned the United States Supreme Court for an appeal, but the Supreme Court refused, thus keeping the Lenfest decision in place as the law of the land. For the last 25 years Lenfest has stood as the leading case on the right of railroad workers to refuse to work under hazardous conditions.

Roger passed away last week at the age of 65. He will be missed, but never forgotten. Those of us who knew him can take some comfort in the fact that, although his voice will no longer be heard, the legacy of his fearlessness and vision will live on.

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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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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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After a supervisor for the Utah Transit Authority was fired for raising safety concerns, OSHA's Whistleblower Office ordered him reinstated with over $150,000 in make whole economic damages.  In refusing to dismiss that case, an ALJ has ruled that the FRSA  protects any employee who raises safety concerns, even supervisors on an intrastate commuter railroad not yet open to the public:

Congress recognized that in order to improve safety and security on the railroads, railroad employees play a key role and are to be encouraged to raise safety or security issues with supervisors and/or government officials, so the issues can be addressed, without fear of reprisal for doing so. . . .

The potential safety or security issues railroad employees are exposed to are the same, whether the commuter railroad operates wholly intrastate or crosses state borders. . . . Congress did not intend to protect some commuter railroad employees who raise safety or security concerns but not others.

Amen. For OSHA's Merit Finding, click here.  For the ALJ's full opinion, click here. For the full FRSA Library, click here.

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OSHA's Whistleblower Office has slammed Metro North Railroad with punitive damages for using a Federal Rail Safety Act complaint as a basis for disciplining a worker. After a laborer at Metro North's New Haven Shop filed a FRSA complaint, the Railroad charged the worker with "Conduct unbecoming a Metro-North employee in that you filed a false statement in your complaint to OSHA claiming violations of the Federal Rail Safety Act." Metro North then held a disciplinary trial on that charge and issued a 30-day suspension. Even though Metro North later dropped the suspension and the worker lost no wages, OSHA nevertheless imposed over $80,000 in punitive damages and attorney fees against the Railroad.

OSHA found that "All the evidence indicates that the management officials most involved in the trial and decision knew that the charges and subsequent discipline were retaliatory but they allowed it to happen anyway." OSHA went on to warn railroads:

The acts of bringing disciplinary charges and instituting trial proceedings against an employee for filing a complaint with OSHA and accusing the employee of lying to OSHA in those charges and proceedings have a chilling effect on the Railroad's employees and would tend to dissuade others from asserting their rights under FRSA. Even if the charge is later dropped, that does not remedy this chilling effect, as the act of bringing the charge against an employee undermines all of the Railroad's employees' willingness and ability to exercise their most basic rights under FRSA. . . . Metro North's conduct in retaliation against an employee for filing a FRSA complaint with OSHA exhibited a reckless disregard for the law and complete indifference to the Complainant's rights and the rights of Metro North's other employees. Bringing disciplinary charges against an employee that on their face threaten discipline for claiming violations of FRSA (regardless of whether the charges are later dropped) functions to chill employees from exercising their most basic rights under FRSA.

In a Press Release, OSHA's Regional Administrator indicated that the FRSA is designed to remedy the "culture of silence in which hazardous conditions are masked because employees will be fearful of reporting them" and stressed it is "unconscionable" for a railroad to discipline an employee for  invoking his FRSA rights.

The message to railroads nationwide is: workers who file FRSA complaints are protected from any discipline that is based in whole or in part on the filing or content of the complaint. So don't even think about using a FRSA complaint as the basis for discipline, unless of course you enjoy getting hit with punitive damages. For the complete text of the decision, click here. For access to the FRSA Library, click here.  For a National Public Radio piece on this Award, click here.

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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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Refreshing words from FRA Administrator Joe Szabo here at the National Mediation Board's Passenger Railroad Conference in Philadelphia. Joe complimented Amtrak President Boardman for disconnecting manager compensation from injury statistics. Joe noted that while this will result in an increase in reported injuries, it will provide the FRA with the type of accurate information necessary to improve its rail safety programs. It also will help replace management's "blame the victim" reflex with a focus on analyzing the systemic root causes of injuries.

So a good start, but not nearly enough to avoid FRSA punitive damages. As Judge Berlin recently noted when ordering punitive damages against Amtrak, the cultural change that really counts will be when employees feel free to report injuries and safety concerns without any fear of discipline or retaliation. And so far, there is no evidence that change has occurred.

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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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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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As of August 31, 2010, the Federal Rail Safety Act has its own set of regulations setting forth the requirements and procedures for every aspect of FRSA litigation, including the filing of complaints, OSHA investigations, appeals to ALJ de novo hearings, review by the ARB, and optional federal court jury trials. You can access the complete regulations by going to the FRSA Library and clicking on the link at the "FRSA Regulations" heading. Any comments on these new regulations must be sent to the DOL by November 1, 2010, via http://www.regulations.gov and refer to Docket No. OSHA-2008-0027.

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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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The bogus "election of remedies" defense to Federal Rail Safety Act claims raised by railroads just took a major hit.  Yesterday the Department of Labor filed an appellate Brief confirming that a railroad worker who pursues a grievance or arbitration under the Railway Labor Act is not thereby precluded from simultaneously pursuing a FRSA whistleblower protection claim.  Noting that "retaliation and a violation of the CBA are not the same unlawful acts," the DOL's official position is that the FRSA's "election of remedies provision does not preclude a FRSA complaint where an employee has pursued a grievance and/or arbitration pursuant to the employee's collective bargaining agreement under the Railway Labor Act."  For the full decision, click here.  For some of the back story regarding this issue, click here.

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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 another example of what happens when a railroad tries to blame an injured worker instead of taking responsibility for the workplace culture that caused the injury in the first place. Declaring "An employer does not have the right to retaliate against its employees who report work-related injuries," OSHA's Whistleblower Office ordered two Illinois railroads to pay over $80,000 in back wages, compensatory damages, and attorney's fees to a former worker who reported an injury and then was subjected to a railroad "investigation" that resulted in his termination. Click here for OSHA's press release, and click here for the full text of the Federal Rail Safety Act that shields employees from such retaliation.

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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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Here's a true story that should give any railroad supervisor pause. The fact is, you never know where an act of retaliation will lead. After you commit an act of retaliation, you simply can not control how it reverberates in people's lives. And while all retaliation hurts, it can kill as well. It's like a felony-murder: when in the course of a robbery someone gets unforseeably killed, the robber is still guilty of murder even though he never intended anyone to die.

Case in point. A notorious Metro North supervisor with a long history of abusing his authority decided to humiliate one of his electricians in front of his gang. Why? Because the worker was taking FMLA leave to be with his wife for the birth of their baby and to help her during the weeks thereafter.

The electrician complained to Metro North's Workforce Diversity Department, who commenced an investigation. In response, the supervisor proceeded to retaliate against the worker by improperly abolishing his job and then refusing to allow him to transfer into a different district, trapping him. The public humiliation and the cumulative abuse was the last straw that broke the worker's emotional equilibrium. He felt his choice was to return to work and "go postal" when he saw the supervisor again, or to give up his railroad career. He chose to avoid violence and resign (the law calls that a "constructive discharge" because the railroad made his work life so intolerable it forced his resignation).

The problem is, he then lost medical coverage for his wife and baby, he lost his regular income and pension, and he struggled to replace the wages and self-respect he earned in his railroad job. Metro North's Workforce Diversity Office completed its investigation of the supervisor, and concluded the supervisor was guilty and deserving of severe discipline. But what happened? His managers refused to accept Metro North's own ruling, and watered down the discipline so it was meaningless.

Several weeks later, the worker put a bullet in his head. A life destroyed, a productive career lost, a family devastated, a baby girl who will never know the love of her father. And all because the Railroad's managers reflexively protect their abusive supervisors.

Of course, when sued for wrongful death and FMLA violations Metro North tried to wriggle out from its liability, but the federal judge has refused to let the Railroad off the hook. Metro North now will have to face a jury, who will decide under the Federal Employers' Liability Act (FELA) whether the Railroad's conduct played any part at all in causing the worker's death. Let us all pray that, for the sake of his widow and baby girl, justice will prevail.

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Here's an open secret: retaliation is the hallmark of an insecure manager who has no clue how to lead workers and who knows in his heart he is not qualified to be in a position of power.

Insecure rail managers perceive reports of safety concerns or injuries as a personal affront to their authority and react by striking back against the employee. Enlightened managers welcome reports of safety problems as an opportunity to improve conditions and take steps to avoid future injuries. Their response is: "Thank you for bringing that to my attention, we will look into it right away and make the necessary corrections to ensure something like that never happens again." But instead of treating a safety or injury report as an opportunity to correct an underlying problem, insecure managers "shoot the messenger" by automatically retaliating against the employee.

The problem is, reporting safety concerns and injuries are now "protected activities" under the Federal Rail Safety Act and cannot be subject to any adverse consequences such as discipline or discrimination. And any such retaliation against employees who report injuries or safety concerns is illegal under the FRSA and will result in punitive damages awards.

So here's how railroads can innoculate themselves against expensive FRSA retaliation claims: treat employee injuries and safety complaints as neutral events. That means changing your management culture so that safety complaints and injury reports are viewed as neutral events that do not provoke adverse consequences.

A corollary of this means changing the financial incentives for railroad managers. The Federal Rail Administration has noted that the annual compensation of managers is affected by the number of injuries reported by employees under their supervision.  Is it any wonder then that rail managers react to the report of an injury as if the employee is taking money out of the manager's pocket? Is it any surprise managers find ways to discourage and chill the reporting of injurires? Instead, why not base the financial compensation of rail managers on how they correct the underlying problems that lead to an injury? So that instead of focusing on disciplining the injured employee, managers focus on eliminating the risk of future injuries?

So that's the secret that will put attorneys like me out of the FRSA enforcement business.  See, e.g., $300,000 in punitives against Metro North Railroad.  All it takes is a change in the culture of rail management from one of retaliation to one of risk remediation. Railroads can do it the easy way (voluntarily) or the hard way (getting hammered by FRSA damages), but one way or the other, the culture of rail management will change. And for that, we can thank the FRSA.

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