The FRSA is a “make whole remedy” statute, so the question arises: can OSHA force a recalcitrant railroad to train its managers so they comply with the statute going forward? The short answer is: yes, when the facts call for it. The long answer is found in Administrative Law Judge Timothy J. McGrath’s decision in Giuliano v. CSX Transportation, Inc.
OSHA found CSX violated JJ Giuliano’s FRSA right to report safety hazards, and in addition to awarding punitive damages ordered that “all managers at CSX’s Selkirk Locomotive Diesel Shop shall receive training provided by OSHA relative to the FRSA rights afforded employees.” CSX paid the punitive damages, but objected to the training of its managers (go figure).
Judge McGrath first noted OSHA’s FRSA regulations confirm that the posting of a Notice regarding the whistleblower complaint “can be important to remedying the reputational harm an employee has suffered as a result of retaliation.” And as for training managers:
an order to provide training to managers regarding the rights protected by the FRSA can assist in making the employee whole by ensuring that the circumstances that led to retaliation do not persist, thus remedying the employee’s fear of future retaliation for having engaged in the protected activity.
See OSHA’s Final Rule Summary at page 69126. Noting that the FRSA statutory language broadly mandates all remedies to make an employee whole, Judge McGrath concluded:
I find an order of affirmative action to abate a violation (such as ordering the training of managers) may be appropriate under the FRSA when it functions to make the employee whole.
The key factor is whether the employee remains under the supervision of the managers who retaliated against him. If so, posting a Notice restoring his reputation in the workplace is appropriate, as is an order forcing the training of those managers to ensure the retaliation will not continue in the future.
Here is the full text of Giuliano v. CSX Transportation, Inc. For more information on the whistleblower rights of rail workers, go to the free Rail Whistleblower Library.