It’s one of the hoariest acts in the railroad repertoire of retaliation: first, invent rules setting an arbitrary deadline for the reporting of injuries, and then use the threat of discipline under those rules to discourage the reporting of injuries. Classic examples of absurd reporting rules are Metro North Railroad’s “all injuries must be reported immediately” and CSX Transportation’s “all injuries must be reported prior to the end of the shift.” Such arbitrary rules outlaw entire categories of FRA reportable injuries.

No more. Under the Federal Rail Safety Act, the reporting of injuries cannot be used as the basis for discipline. And because any discipline for “late reporting” is necessarily based on the reporting of an injury, it is a prima facie violation of the FRSA. And railroads who continue to discipline for “late reporting” are getting slammed with record high punitive damages. See, for example, Harvey v. Union Pacific Railroad.

So, thanks to the FRSA, there is no longer any such thing as the “late reporting” of an injury. The railroad repertoire of retaliation just keeps getting smaller and smaller.

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.

While we await the Administrative Review Board’s official burial notice for the railroads’ bogus “election of remedies” argument, here is another nail in the coffin of that dead Federal Rail Safety Act defense: Thompson v. Norfolk Southern Railway Corp., where yet another Administrative Law Judge explains why “the FRSA does not prevent an individual who has appealed discipline pursuant to a collective bargaining agreement from pursuing a complaint under the FRSA.” If anybody at the ARB is listening, hasn’t this wake gone on long enough? Time to lay this issue to rest once and for all.

As Yogi Berra would say, “It’s starting to get late early out there” for the Norfolk Southern Railway. OSHA has blown the whistle on NS’s campaign of retaliation against injured workers, and the Federal Rail Safety Act awards and punitive damages just keep piling up.

In the latest, Nelson v. Norfolk Southern Railway, OSHA’s investigation confirmed that employees “are reluctant to report an injury and/or illness, fearing that they will be targeted and eventually terminated from employment.” Which explains how NS has kept its injury rates low enough to receive “the prestigious E.H. Harriman Rail Safety Gold Medal Award for 22 consecutive years.” Only in the railroad industry could managers receive a safety medal for suppressing the reporting of injuries.

OSHA notes the “chilling effect” of NS’s “reckless disregard for the law” and points to how NS “has been cited previously by the Federal Railroad Administration for harassing and intimidating employees from reporting injuries” in violation of FRA regulations. OSHA concludes that NS’s “disregard for Complainant’s rights under FRSA warrants punitive damages” in the amount of $75,000, plus another $20,000 for emotional distress and $26,000 in attorney fees.

When it comes to railroads like the NS, all that glitters is not gold.

Once again, OSHA has slammed Metro North Railroad with punitive damages for disregarding the Federal Rail Safety Act rights of its employees. This time it is for using prior injuries to deny promotions, and the resulting punitive damage award is $125,000.

Like many railroads, Metro North has a policy and practice of considering an employee’s history of reporting injuries when evaluating that employee for a promotion. Here, ironworker Bill Ordner passed all the hurdles for a locomotive engineer job, but then, after the final background check phase, was handed a letter denying him the promotion with no explanation. He had reported injuries within the prior three years, and when Metro North refused to provide OSHA’s Whistleblower Office with the information on which the denial was based, OSHA drew a negative inference against Metro North and concluded that Ordner’s reporting of injuries was a contributing factor in Metro North’s denial of the promotion.

Here are OSHA’s words of warning to railroads nationwide:

Metro North automatically assigns points to an employee’s personnel record, thereby subjecting the employee to other adverse consequences such as disqualification for promotion or craft transfer, solely for lawfully reporting a work-related injury. Metro North’s enforcement of this policy, to the extent that it punishes employees for reporting work-related injuries, on its face violates FRSA. Such practices produce a chilling effect on reporting injuries in the workplace, jeopardizing employee safety. Furthermore, Metro North’s refusal to provide OSHA with certain documents requested during this investigation is consistent with its conduct in past investigations. Metro North’s pattern of refusal to provide OSHA with requested information during FRSA investigations demonstrates willful disregard for the law and the rights of its employees.

OSHA’s make whole remedies include: ordering the Railroad to promote Ordner to the position of locomotive engineer with a seniority date of November 24, 2008 and full back pay; $125,000 in punitive damages; another $15,000 in emotional distress and attorney’s fees; and the posting of the FRSA Notice to Employees in all 120 stations on the Railroad.

When will railroads learn that the FRSA has made the reporting of injuries a neutral, penalty-free event? Here is the full text of the Ordner v. Metro North Railroad Merit Finding.

The good people who investigate Federal Rail Safety Act complaints are part of OSHA’s Whistleblower Protection Program (OWPP). For those of you interested in the internal workings of OWPP, click here for the official Report on OSHA’s plans for improving its performance, including the hiring of more investigators and increasing training. For the official web site of the OWPP with descriptions of the 21 federal whistleblower laws it enforces, click here.

Another railroad has been hit with Federal Rail Safety Act punitive damages for disciplining injured employees based on vague safety rules. This time it’s the Burlington Northern Railroad, who charged a conductor with being "careless of the safety of yourself and others" after he reported an injury. At the disciplinary trial, the charging officer "testified that all injuries are preventable and because the conductor reported a work-injury, he must have violated that rule." Based on such Alice In Wonderland logic, the Railroad imposed a 30 day record suspension with a one year probation. But OSHA Whistleblower’s Office was not impressed with such circular logic, and imposed an award of $75,000 in punitive damages and $25,000 for emotional distress. For the full text of the FRSA Award, click here.

It’s official. Thanks to the Federal Rail Safety Act, railroads can no longer impose discipline based on vague safety rules that are triggered only when a worker reports an injury.

Every railroad has so-called "safety" rules stating employees must "be alert and attentive" and "take care to prevent injury to themselves" and "when in doubt take the safe course." Any worker who reports an injury automatically is in violation of such rules, whose only function is to provide a basis to discipline workers who report injuries. In effect, such rules prohibit employees from being injured, and then are used as a bogus basis to discipline workers who report an injury.

Those days are over. In a case where a conductor slipped on ice and was suspended for ten days after the railroad found he "was not alert" and "caused an injury to himself" and "did not take the safe course," OSHA’s Whistleblower Office slapped the railroad with $100,000 in FRSA punitive damages, plus $25,000 for emotional distress. From now on, railroads that uses such vague "safety" rules to discipline injured employees are just asking to get hit with FRSA punitive damages. For the full text of the FRSA Award, click here.

This entry honors the memory of Roger M. Lenfest, Jr., a courageous rail labor leader who has left us too soon. Roger’s railroad career spanned 40 years, most recently as a United Transportation Union General Chairman representing conductors on various carriers. But Roger’s defining moment as a union rep came in 1985, when he was General Chairman for the conductors on the Boston commuter lines operated by Tim Mellon’s B & M Railroad.

Roger raised a safety issue about the lack of flagmen at construction sites on the mainline, and the B & M Railroad responded by firing one of his local chairman. The next morning, on November 4, 1985, Roger shut down the commuter rail service for the Boston region by ordering an unprecedented system-wide refusal to work under hazardous conditions. The B & M immediately obtained a temporary restraining order from the United States District Court in Boston ordering all employees back to work. The Railroad then fired all of Roger’s local chairmen and placed liens on their homes for millions of dollars in civil damages.

The trial judge ruled for the Railroad, but Roger kept the faith, and on September 2, 1986 the First Circuit Court of Appeals decided the first case ever under the original Federal Rail Safety Act when it issued a landmark decision overturning the trial judge and ruling that Roger’s action was not an illegal strike but rather a refusal to work under hazardous conditions protected by the Federal Railroad Safety Act. B & M Corp. vs. Lenfest, et al., 799 F.2d 795 (1st Cir. 1986). We forced the Railroad to immediately reinstate Roger’s local chairmen and withdraw the liens on their homes. Roger then went on to win over $400,000 in back wages for his local chairmen in arbitration.

Here are the words from the Circuit Court decision establishing "the Lenfest principle":

To hold that union leaders can call for a concerted work stoppage only at the risk of being found liable for instigating an illegal strike is to place them in the position of having to choose between their own welfare and the lives of the employees. This is contrary to what Congress intended. We hold that where hazardous working conditions are the result of a system-wide failure to provide adequate protection so that employees are in danger of death or serious injury without knowing it, and the Union is aware of such danger, the Union may call a concerted work stoppage under the FRSA to protect the lives and safety of the employees.

The Railroad petitioned the United States Supreme Court for an appeal, but the Supreme Court refused, thus keeping the Lenfest decision in place as the law of the land. For the last 25 years Lenfest has stood as the leading case on the right of railroad workers to refuse to work under hazardous conditions.

Roger passed away last week at the age of 65. He will be missed, but never forgotten. Those of us who knew him can take some comfort in the fact that, although his voice will no longer be heard, the legacy of his fearlessness and vision will live on.

Here’s the latest judicial decision rejecting the bogus "election of remedies" defense railroads continue to raise in Federal Rail Safety Act cases. This one is especially sweet in that it allows a worker to continue her frontal attack against Norfolk Southern Railway’s notorious practice of firing employees who report on duty injuries.

The facts are familiar to anyone who deals with Norfolk Southern. Latonya Milton reported an injury five days after the incident that caused the injury, and as usual NS fired her for filing an "untimely" injury report and for making "false and conflicting statements" regarding the reporting of her injury. She appealed the termination through her collective bargaining agreement, and also filed a FRSA complaint with OSHA’s Whistleblower Office. NS argued that her CBA appeal was an "election of remedies" that precluded her from pursuing a FRSA claim.

Judge Malamphy rejected that argument, ruling Milton "is not precluded from appealing her termination pursuant to her collective bargaining agreement while simultaneously litigating this claim under the FRSA." NS asked for an immediate reconsideration, but to no avail. The Judge again concluded: "I find that the FRSA does not prevent an individual who has filed a grievance pursuant to a collective bargaining agreement from pursuing a complaint under the FRSA." How many times do judges have to rule before the railroads accept reality? For the complete text of both decisions, click here.