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Posted: 26 April 2012

Don't let this get out on the railroad!

OSHA Hammers CSX for Outrageous FRSA Violation
Train Law Blog
Posted at 6:08 AM on April 23, 2012 by Charlie Goetsch

OSHA Hammers CSX Transportation For Outrageous FRSA Violation

In an important ruling underscoring OSHA's commitment to protect rail
workers who file Federal Rail Safety Act complaints, OSHA has hit the
CSX railroad with the highest award for emotional distress damages
yet.

After CSX fired dispatcher Robin Young in connection with a near miss
incident, on March 2, 2010, he filed a FRSA complaint with OSHA
alleging his termination was in retaliation for having raised safety
issues during the disciplinary proceeding. Meanwhile, Young exercised
his seniority rights to return to work as a track maintenance employee.
CSX's Legal and Labor Relations Departments approved his return as a
trackman, and on March 17th he worked a full shift in the Albany New
York area.

However, on March 16th CSX's corporate secretary’s office had received
a copy of his OSHA complaint, and after his shift ended on March 17th
CSX called Young and told him he was terminated as a trackman. The next
day Young amended his FRSA complaint to allege the March 17th
termination was in retaliation for his having filed a FRSA complaint.

OSHA's investigation resulted in some disturbing findings regarding
the conduct of CSX's Director of Labor Relations Noel Nihoul. OSHA
noted that prior to receiving the FRSA complaint, CSX's Legal and
Labor Relations Departments had green lighted Young's reinstatement as
a trackman. In the words of OSHA:

Yet, within one day of the corporate secretary's office receiving
notification of the FRSA retaliation complaint, Mr. Nihoul directed the
termination of Young despite the fact he had already returned to work
and Mr. Nihoul's department had approved that return to work after
obtaining legal advice that Young's return to work was permissible
under the CBA. Mr. Nihoul worked in the corporate office and is
responsible for enforcing corporate polices. The decision maker was not
a low level manager working in a remote location and possibly not
familiar with standard policy. Mr. Nihoul's outrageous behavior and
callous disregard for the rights of its employees warrants punitive
damages. CSX's conduct in retaliation against an employee for filing a
FRSA complaint with OSHA exhibited reckless disregard for the law and
complete indifference to Young's rights and the rights of CSX's other
employees. Discharging an employee for claiming violations of FRSA
functions to chill employees from exercising their most basic rights
under FRSA.

Damning language indeed that places CSX's dealings with its employees
in a highly questionable light. The BMWE union persuaded a Railway
Labor Act Public Law Board arbitrator to order Young reinstated as a
trackman with all back wages and seniority intact, but that was not
enough to remedy the FRSA violation. So OSHA ordered CSX to pay $80,000
in emotional distress damages, $100,000 in punitive damages, and another
$6,081 in make whole remedies (including orthodontic fees, late mortgage
payment fees, and bankruptcy attorney fees). For the complete text of
OSHA's Findings and Order in Young v. CSX,
http://www.trainlaw.com/Young-v-CSX-...gs-3-26-12.pdf.

The take away is that OSHA will be relentlessly vigilant in protecting
workers who file FRSA complaints. Railroads better think twice, or
three times, before taking adverse action against a worker who has
filed a FRSA complaint. Because even if the underlying FRSA complaint
lacks merit, the mere act of filing a complaint is a protected activity
that shields the worker from any subsequent retaliatory conduct by rail
management.