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

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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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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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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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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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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