In an important ruling underscoring OSHA’s commitment to protect rail workers who file Federal Rail Safety Act complaints, OSHA has hit the CSX railroad with the highest award for emotional distress damages yet.
After CSX fired dispatcher Robin Young in connection with a near miss incident, on March 2, 2010, he filed a FRSA complaint with OSHA alleging his termination was in retaliation for having raised safety issues during the disciplinary proceeding. Meanwhile, Young exercised his seniority rights to return to work as a track maintenance employee. CSX’s Legal and Labor Relations Departments approved his return as a trackman, and on March 17th he worked a full shift in the Albany New York area.
However, on March 16th CSX’s corporate secretary’s office had received a copy of his OSHA complaint, and after his shift ended on March 17th CSX called Young and told him he was terminated as a trackman. The next day Young amended his FRSA complaint to allege the March 17th termination was in retaliation for his having filed a FRSA complaint.
OSHA’s investigation resulted in some disturbing findings regarding the conduct of CSX’s Director of Labor Relations Noel Nihoul. OSHA noted that prior to receiving the FRSA complaint, CSX’s Legal and Labor Relations Departments had green lighted Young’s reinstatement as a trackman. In the words of OSHA:
Yet, within one day of the corporate secretary’s office receiving notification of the FRSA retaliation complaint, Mr. Nihoul directed the termination of Young despite the fact he had already returned to work and Mr. Nihoul’s department had approved that return to work after obtaining legal advice that Young’s return to work was permissible under the CBA. Mr. Nihoul worked in the corporate office and is responsible for enforcing corporate polices. The decision maker was not a low level manager working in a remote location and possibly not familiar with standard policy. Mr. Nihoul’s outrageous behavior and callous disregard for the rights of its employees warrants punitive damages. CSX’s conduct in retaliation against an employee for filing a FRSA complaint with OSHA exhibited reckless disregard for the law and complete indifference to Young’s rights and the rights of CSX’s other employees. Discharging an employee for claiming violations of FRSA functions to chill employees from exercising their most basic rights under FRSA.
Damning language indeed that places CSX’s dealings with its employees in a highly questionable light. The BMWE union persuaded a Railway Labor Act Public Law Board arbitrator to order Young reinstated as a trackman with all back wages and seniority intact, but that was not enough to remedy the FRSA violation. So OSHA ordered CSX to pay $80,000 in emotional distress damages, $100,000 in punitive damages, and another $6,081 in make whole remedies (including orthodontic fees, late mortgage payment fees, and bankruptcy attorney fees). Here is the complete text of OSHA’s Findings and Order in Young v. CSX.
The take away is that OSHA will be relentlessly vigilant in protecting workers who file FRSA complaints. Railroads better think twice, or three times, before taking adverse action against a worker who has filed a FRSA complaint. Because even if the underlying FRSA complaint lacks merit, the mere act of filing a complaint is a protected activity that shields the worker from any subsequent retaliatory conduct by rail management. For more on the FRSA, go to the free Rail Whistleblower Library.