Are you fed up with rail managers who habitually ignore safety rules and regulations, and then blame the workers who get hurt as a result of management’s unsafe practices? Now you can do something about it. Here’s how to disqualify such managers from ever working in the railroad industry again.

There is a little known Federal Rail Administration regulation that gives the FRA the power to permanently disqualify unsafe rail managers from railroad work. Entitled “Disqualification Procedures,” it sets forth how the FRA bans managers and supervisors “who have demonstrated their unfitness to perform safety-sensitive functions by violating any rule, regulation, order, or standard prescribed by the FRA.” It applies to all managers involved in a railroad’s operations, track, equipment, or training departments.

The process begins when information about such a manager comes to the FRA’s attention (more on that below). The FRA then issues a Notice of Proposed Disqualification charging the manager with violating one or more of the FRA’s rules, regulations, or standards. The manager is then subjected to a public hearing before an administrative law judge where the FRA’s Chief Counsel presents witnesses and documents proving the facts alleged in the Notice of Disqualification. If the charges are sustained, the judge then issues an order disqualifying the manager from any safety sensitive job on any railroad. The only appeal is to the FRA Administrator, whose decision is final and not subject to any further review. Thereafter any railroad that fails to inform prospective employers of a manager’s disqualification or who actually hires a disqualified manager must pay penalties of up to $11,000 per day or $4 million per year.

Here’s where you come in. In order for this process to work, the FRA needs to be provided with the information confirming a manager’s violation of a safety rule or regulation. That means providing documents and the names of witnesses able to verify the manager’s violation. So if you want to turn the tables on managers who ignore safety while blaming the workers who get hurt as a result, send a confidential email to charlie@trainlaw.com (or the designated legal counsel of your choice) explaining the manager’s violation and listing the witnesses and documents that will confirm the violation. We will evaluate whether that information is strong enough for the FRA to pull the trigger on the unsafe manager.

And remember, if you do end up providing that information to the FRA, the Federal Rail Safety Act protects you from any retaliation by your employer railroad! So you have nothing to fear, and your co-workers and the FRA will thank you for it.

Talk about timing. I was on trial in federal court last week in a FELA injury case. The Railroad, no doubt hoping the U.S. Supreme Court would eliminate the FELA’s long standing "even to the slightest degree" causation standard and replace it with the less favorable "proximate cause," had made a low ball offer and asked the Judge to charge the jury on the proximate cause standard. At 10:35 am on Thursday morning the Judge was ready to read his charge, but first turned to me and asked, "Mr. Goetsch, any word on the McBride Supreme Court decision?" I pulled out my IPhone and saw that only minutes before the Supreme Court had handed down the McBride decision upholding the FELA’s "even to the slightest degree" standard. I replied, "Judge, the FELA remains intact. No reason to change the usual charge." The jury was charged accordingly, and later returned a verdict five times more than the Railroad’s offer.

The purpose of the FELA is to promote safe railroad operations by allowing negligently injured workers to recover full jury damages. That’s why Teddy Roosevelt pushed the FELA through Congress 103 years ago, to give the railroads an economic incentive to be safe. Last week the future of the FELA hung in the balance, but now we can thank the Supreme Court for upholding the FELA and refusing to cripple what is the original rail safety law. Somewhere, Teddy Roosevelt is smiling a big toothy grin. For the full decision in CSX Transportation Inc. v. McBride, click here.

Add this to the growing chorus of judicial voices shouting down the bogus "election of remedies" defense raised by railroads. In a cogent decision, Judge Berlin confirms that Federal Rail Safety Act  complaints are independent of Railway Labor Act disciplinary proceedings and cannot be derailed by a RLA award reinstating an employee with back pay.

Here are the facts. Union Pacific employee Robert Powers reported an on the job injury, and his doctor put him on medical leave with medical restrictions. The Railroad secretly videotaped Powers doing certain activities it claimed violated his medical restrictions, and then fired him. Powers filed a FRSA retaliation complaint, and on his behalf the union appealed the termination to a RLA arbitration board. When the RLA Board reinstated Powers with back pay, the Railroad moved to dismiss his FRSA complaint, arguing that his use of the RLA process constituted an "election of remedies" barring a FRSA claim. Judge Berlin soundly rejected that argument. Here are some excerpts from the opinion:

The FRSA requires what it terms an "election of remedies" as follows: "An employee may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier." 49 U.S.C. § 20109(f). The ultimate question presented here is whether the union’s pursuit of a grievance, asserting on Complainant’s behalf rights under a collective bargaining agreement, constitutes an election of remedies under the Federal Rail Safety Act and forecloses the present action.

At the RLA arbitration, the union was limited to the remedies that the collective bargaining agreement allowed. Those remedies did not include emotional distress or punitive damages. In contrast, the Federal Rail Safety Act allows these remedies. See 29 U.S.C. §20109(e)(2)(C), (e)(3) (providing compensatory damages plus possible punitive damages not to exceed $250,000).

The FRSA’s election of remedies provision could apply only if the remedies available under the collective bargaining agreement are no less than those under the Act, which include compensatory damages and permissible punitive damages of at least $250,000. Nothing on the record suggests the collective bargaining agreement allows for such remedies.

The union’s pursuing a grievance did not trigger the election of remedies provision in the Federal Rail Safety Act. It was an act of the union, not of Complainant, and it did not allege an "unlawful act’ but was limited to a claimed breach of contract. It was based on the union’s choice to pursue an avenue with lesser remedies than those that the statute affords.

I find that Union Pacific construes the election of remedies provision too broadly. Complainant is correct that his union’s pursuit of a remedy under the collective bargaining agreement did not trigger the Act’s election of remedies provision.

I conclude that, when a union chooses to pursue a grievance on behalf of an employee, it is acting as a union, and that this is distinct from an election of the individual employee to seek a remedy other than under the Federal Rail Safety Act. As the union, not Complainant, pursued the grievance, Complainant did not trigger the election of remedies provision in the Act.

Well said. For the full text of Judge Berlin’s decision, click here.

 

The Union Pacific Railroad is about to learn the hard way that arrogance is not a defense to the Federal Rail Safety Act.

The FRSA gives OSHA the power to order the “preliminary reinstatement” of an employee with full back pay. The reinstatement goes into immediate effect even if the railroad objects to OSHA’s findings. And even if the railroad ultimately overturns OSHA’s award, the railroad can never recover the reinstatement wages it paid.

Railroads mess with the power of preliminary reinstatement at their peril. Case in point. After UP machinist Brian Petersen reported an injury, he was suspended, dismissed, and then returned to service subject to instant termination at the whim of any manager. Sure enough, four days after returning to work under that draconian condition, a manager saw him and two other machinists standing on Timken Bearings in order to read the serial numbers off of traction motors. Petersen was immediately sent home and dismissed in all capacities. Nothing happened to the two machinist who were with him doing the same thing.

Petersen suffered emotional and financial harm due to UP’s decision to terminate him. He went into debt and had to move his wife and children to find other work. The stress was so intense he ended up in the emergency room with what appeared to be a heart attack. OSHA found UP’s disparate treatment of Petersen to be in outrageous violation of the FRSA, and ordered $214,000 in make whole remedies, including: immediate reinstatement; $105,000 in back pay; $17,000 for emotional distress and moving expenses; $75,000 in punitive damages; and $17,000 in attorney’s fees. Here is the full decision in Petersen.

So how did UP respond? In an insolent affront to the authority of OSHA, UP emailed OSHA stating that it “will not implement the preliminary order for reinstatement.” Big mistake. Despite its arrogance, UP is no match for the power of the United States government. The United States Attorney will promptly enforce OSHA’s reinstatement order in United States District Court, and all UP will end up accomplishing is to confirm its “reckless disregard” for the FRSA rights of its employees, thus setting the stage for even greater FRSA punitive damage awards in the future.

OSHA has blown the whistle on Norfolk Southern Railway Company’s practice of disciplining injured workers based on bogus “falsification” charges. From now on, Norfolk Southern’s “falsification” strategy will cost it dearly.

In order to discourage the reporting of injuries, Norfolk Southern routinely charges injured employees with “falsifying” the injury. That is what happened to Conductor Jeff Thompson. After he reported an injury, he was accused of falsifying his symptoms and was suspended for six weeks. A RLA arbitrator ordered Norfolk Southern to pay all of his back wages, and now OSHA is ordering the Railroad to pay $15,000 for his emotional distress and another $15,000 in attorney fees.

This Award is noteworthy because (1) it lays the groundwork for punitive damages against Norfolk Southern for such egregious conduct, and (2) it confirms that a RLA award of back wages does not prevent OSHA from ordering the full spectrum of Federal Rail Safety Act economic and equitable remedies. Here is the full text of the OSHA Award.

The Federal Employers Liability Act is the law that protects rail workers who are injured or killed on the job. The most important FELA case to reach the United States Supreme Court in the last 50 years was argued this morning. At stake is whether the FELA’s long recognized standard of relaxed causation—namely, that a railroad is liable for an employee’s injury or death if it “results in whole or part, even to the slightest degree,” from the negligence of the railroad—was going to be overturned and replaced with a higher hurdle more difficult for employees to clear.

Arguing on behalf of all railroad employees was David C. Frederick, a veteran Supreme Court advocate who did an excellent job explaining why the relaxed standard must remain in place. If you have never been to a Supreme Court oral argument, the transcript of this morning’s argument is well worth reading to get a flavor of how our nation’s highest court deals with issues that affect the entire country. For the transcript of CSX Transp., Inc. v. McBride, click here. A decision will be handed down by June, so stay tuned.

After a supervisor for the Utah Transit Authority was fired for raising safety concerns, OSHA’s Whistleblower Office ordered him reinstated with over $150,000 in make whole economic damages.  In refusing to dismiss that case, an ALJ has ruled that the FRSA  protects any employee who raises safety concerns, even supervisors on an intrastate commuter railroad not yet open to the public:

Congress recognized that in order to improve safety and security on the railroads, railroad employees play a key role and are to be encouraged to raise safety or security issues with supervisors and/or government officials, so the issues can be addressed, without fear of reprisal for doing so. . . .

The potential safety or security issues railroad employees are exposed to are the same, whether the commuter railroad operates wholly intrastate or crosses state borders. . . . Congress did not intend to protect some commuter railroad employees who raise safety or security concerns but not others.

Amen. Here is OSHA’s Merit Finding in Myler v. Utah Transit Authority. Here is the free Rail Whistleblower Library.

 

 

OSHA’s Whistleblower Office has slammed Metro North Railroad with punitive damages for using a Federal Rail Safety Act complaint as a basis for disciplining a worker. After a laborer at Metro North’s New Haven Shop filed a FRSA complaint, the Railroad charged the worker with “Conduct unbecoming a Metro-North employee in that you filed a false statement in your complaint to OSHA claiming violations of the Federal Rail Safety Act.” Metro North then held a disciplinary trial on that charge and issued a 30-day suspension. Even though Metro North later dropped the suspension and the worker lost no wages, OSHA nevertheless imposed over $80,000 in punitive damages and attorney fees against the Railroad.

OSHA found that “All the evidence indicates that the management officials most involved in the trial and decision knew that the charges and subsequent discipline were retaliatory but they allowed it to happen anyway.” OSHA went on to warn railroads:

The acts of bringing disciplinary charges and instituting trial proceedings against an employee for filing a complaint with OSHA and accusing the employee of lying to OSHA in those charges and proceedings have a chilling effect on the Railroad’s employees and would tend to dissuade others from asserting their rights under FRSA. Even if the charge is later dropped, that does not remedy this chilling effect, as the act of bringing the charge against an employee undermines all of the Railroad’s employees’ willingness and ability to exercise their most basic rights under FRSA. . . . Metro North’s conduct in retaliation against an employee for filing a FRSA complaint with OSHA exhibited a reckless disregard for the law and complete indifference to the Complainant’s rights and the rights of Metro North’s other employees. Bringing disciplinary charges against an employee that on their face threaten discipline for claiming violations of FRSA (regardless of whether the charges are later dropped) functions to chill employees from exercising their most basic rights under FRSA.

In a Press Release, OSHA’s Regional Administrator indicated that the FRSA is designed to remedy the “culture of silence in which hazardous conditions are masked because employees will be fearful of reporting them” and stressed it is “unconscionable” for a railroad to discipline an employee for  invoking his FRSA rights.

The message to railroads nationwide is: workers who file FRSA complaints are protected from any discipline that is based in whole or in part on the filing or content of the complaint. So don’t even think about using a FRSA complaint as the basis for discipline, unless of course you enjoy getting hit with punitive damages. Here is the complete text of Blocker v. Metro North Railroad decision.  For a National Public Radio piece on this Award, click here. For more on the FRSA, go to the free Rail Whistleblower Library.

Here is a classic example of how the Federal Rail Safety Act is correcting rail management’s reflexive "blame the injured worker" mentality. The Railroad failed to provide the proper tool to do the task in question. So the worker used whatever was at hand to complete the task, just as many other workers had done with management’s blessing and without being disciplined. But this time the worker was injured. So, instead of disciplining the managers who failed to provide the proper tool, the Railroad disciplined the worker for using "an improper tool."

Under the FRSA, this is an invitation to be slapped with punitive damages, and OSHA has done just that. Even though the worker only lost one day’s pay, BNSF now must pay him $75,000 in punitive damages and $15,000 for emotional distress, plus attorney’s fees, for a total of $95,096.  The FRSA has made retaliation against injured workers an indulgence that will cost railroads dearly. For the complete text of OSHA’s BNSF Award, click here.

The act of filing a Federal Rail Safety Act complaint with OSHA is itself a protected activity that cannot in any way be used against the employee. But co-workers are protected as well. Any co-worker who talks to an OSHA Whistleblower investigator or who cooperates with the OSHA FRSA investigation gains protection going forward from any retaliation by the Railroad. So any fellow worker who provides information to an FRSA investigator dons the same suit of protective armor against retaliation and wields the same shield and sword to strike back against retaliatory managers. In some circumstances, union reps may be able to leverage such FRSA protection to push back against disciplinary charges. The citation for the FRSA subsection providing such protection is 49 USC 20109(a)(3).