In a definitive decision, a U.S. Circuit Court of Appeals has barred railroads from using RLA arbitration findings to preclude Federal Rail Safety Act whistleblower retaliation cases. The Court held that self-serving railroad disciplinary hearings cannot and do not have any effect on the right of employees to sue railroads for violating the FRSA.

The fact pattern is familiar: locomotive engineer Danny Grimes reported a work-related injury, and the BNSF Railroad charged him with falsifying an injury. After the usual kangaroo court disciplinary hearing (no discovery, no attorney, no rules of evidence, with railroad managers acting as judge, prosecutor, and jury) the Railroad declared him guilty and fired him. The union appealed to a RLA arbitration board, but based on the kangaroo court record the Public Law Board found Grimes had been dishonest.

Meanwhile, Grimes had filed a FRSA whistleblower retaliation claim with OSHA and then opted into federal district court for a de novo jury trial. The district judge ruled the PLB’s finding was binding on Grimes, and therefore dismissed the FRSA case. Grimes appealed to the 5th Circuit, and in a well-reasoned decision the Court of Appeals reversed, explaining:

The RLA makes the arbitral findings conclusive on the parties in the dispute governed by the RLA. . . . Those findings are not, however, necessarily conclusive in a suit brought under another statute. . . . Where the arbitral panel relies on a hearing conducted by the defendants, the arbitral findings of fact do not have preclusive effect. . . . Here, (1) the hearing was conducted by the railroad; (2) the plaintiff was represented by the union rather than an attorney; (3) the termination decision was made by a railroad employee, not by an impartial fact finder such as a judge or a jury; (4) the rules of evidence do not appear to have been controlling; (5) and most crucially, the PLB’s affirmance was based solely on that record. . . .There are good reasons to require neutral arbitrators: The employer may have already developed opinions about the employee before the ultimate hearing and may have other motives to dismiss a particular employee. Thus, the employer’s decision maker might assess the credibility and weight of the evidence differently than would a neutral arbitrator.

To top if off, the 5th Circuit fully endorsed the 7th Circuit’s decision in Reed v. Norfolk Southern Railway Co. holding that workers are free to simultaneously pursue a RLA arbitration and a FRSA case: "The plain language of the FRSA statute tells us that an employee is not precluded from obtaining relief under the FRSA simply because he appealed his grievance to a Public Law Board."

Thanks to the federal Circuit Courts and the Administrative Review Board, the foundation of FRSA whistleblower protection law now is solidly in place. And despite the desperate efforts of railroads to invent defenses where none exist, the reality is there is one and only one defense to a FRSA case: the railroad will always be liable unless it can prove to a reasonable degree of certainty it would have taken the exact same adverse action even if the employee had not engaged in the protected activity. And in the words of the 3rd Circuit’s landmark decision in Araujo v. New Jersey Transit Rail, "for employers, this is a tough standard, and not by accident. . . . the standard is ‘tough’ because Congress intended for railroads to face a difficult time defending themselves, due to a history of harassment and retaliation in the industry."

Amen. For the full decision in Grimes v. BNSF Railway Co.,click here. For the full Reed v. Norfolk Southern Railway Co. decision,click here. For a Summary of the FRSA whistleblower protections, click here. And for access to the free Rail Whistleblower Library, click here.