Every railroad has them. Vague safety rules that are triggered only when a worker reports an injury. In a blistering Decision, a veteran Administrative Law Judge spells out why the use of such rules mandate the award of Federal Rail Safety Act punitive damages.
Union Pacific employee Brian Petersen was leaning against his car in a company parking lot when the tire of a co-worker’s car ran over his foot. When Petersen reported the injury, the Railroad charged him with safety rule violations and fired him. After a three day trial, Administrative Law Judge Pamela A. Lakes ordered the immediate reinstatement of Petersen along with $325,000 in make whole remedy damages. In the words of Judge Lakes:
the Railroad’s safety rules are written in such a manner that anyone who is injured and reports it will have violated a least a part of one or more of them. For example, Rule 1.1.2 (Alert and Attentive) requires that employees be careful to prevent injuring themselves or others; Rule 70.1 (Safety Responsibilities) requires that employees be responsible for their personal safety and take every precaution to prevent injury to themselves; Rule 70.5 (Protection of Body Parts) prohibits employees from placing any part of their bodies in a position "where they might be struck, caught, pinched or crushed"; Rule 1.6 (Part 1, Careless of Safety) relates to a rules infraction by employees that "demonstrates a willful, flagrant, or reckless disregard for the safety of themselves"; and Rule 1.6 (Part 2, Negligent) precludes behaviors or actions by an employee that "cause, or contribute to, the harm or risk of harm to the employee." The Railroad charged Petersen with violating these rules because he "may have failed to take precaution to avoid having [his] feet run over. . . resulting in [his] sustaining a possible injury to [his] feet and back." Thus, these Rules in effect punish an employee for being injured. The Railroad cannot argue that Petersen was being disciplined for being injured as opposed to reporting the injury, because that is a distinction without a difference.
there would clearly be a chilling effect on the reporting of injuries if railroads were permitted to discipline employees for not avoiding injury, as it did here. . . . Even though I have handled multiple whistleblower cases since I began employment with the Office of Administrative Law Judges in 1994, I have never awarded punitive damages before. However, the actions by Union Pacific have been so egregious in this case, and Union Pacific has been so openly blatant in ignoring the provisions of the FRSA, that I find punitive damages are necessary to ensure that this reprehensible conduct is not repeated. Indeed, it would be difficult to envision a case that reveals a more blatant disregard for the whistleblower provisions of the FRSA than the instant case, which involves retaliation against an employee for reporting that his feet were run over while he was leaning against his car in a parking lot. The position taken by Respondent in the instant case is troubling, to say the least, and involves an egregious degree of culpability.
The Judge ordered Union Pacific to immediately reinstate Petersen and pay $325,000 in lost wages, emotional distress, and punitive damages. And so it goes, and will continue to go, for as long as railroads deny the reality of the FRSA. For the full Decision in Brian Petersen v. Union Pacific Railroad Co.,click here.