As noted in a previous blog, the Occupational Safety and Health Administration and the railroads have been fighting for years over Whistleblower issues related to employee discipline for workplace injuries. In another decision from the OSHA Administrative Review Board, Vernace v. Port Authority Trans-Hudson Corp., ARB No. 12-003, ALJ No. 2010-FRS-18 (ARB Dec. 21, 2012), it upheld an Administrative Law Judge’s (ALJ) decision against the Port Authority and found a Whistleblower violation.

The Federal Railroad Safety Act (FRSA), 49 U.S.C. 5, Section 20109, protects railroad workers from retaliation for reporting suspected violations of federal laws and regulations related to railroad safety and security, hazardous safety or security conditions, and on-the-job injuries.

The employee in this matter was injured when she sat on and broke a chair, causing her to fall. When the employee reported the injury, the employer charged her with having caused the accident by failing to “inspect the chair” before sitting in it and disciplines her for this infraction. The employee then filed the underlying complaint with OSHA, which in 2010 found that the employer had violated the Whistleblower provisions of the FRSA.

The ALJ noted that the Whistleblower regulations includes "intimidating" and "threatening" actions as prohibited discrimination. The Review Board agreed with the ALJ's reliance on its analysis of a similar regulation in Williams v. American Airlines, ARB No. 09-018, 2007-AIR-004 (ARB Dec. 29, 2010): “Moreover, Congress re-emphasized the broad reach of FRSA when it expressly added ‘threatening discipline’ as prohibited discrimination in section 20109(c) ….”

The OSHA ALJ ordered the employer to pay two days lost salary, $1,000 in punitive damages, and to pay for the employees attorneys' fees.