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HOEY & FARINA WINS BIG VICTORY FOR RAILROADERS IN RETALIATION CASE
Although Congress revised Section 20109 of the Federal Railroad Safety Act to give railroaders stronger protection against retaliation, the railroads are trying to deprive railroaders of their new rights. In a series of cases, railroads argued that railroaders who complained to the Occupational Safety & Health Administration ("OSHA") about railroad retaliation were not entitled to protection under Section 20109 because their unions pursued grievance proceedings before the railroader complained to OSHA. The railroads relied on an "election of remedies" provision, which is part of Section 20109, in support of their position.
"EITHER / OR" ARGUMENT
According to the railroads, if a railroader is the victim of railroad retaliation, he can either 1) pursue grievance proceedings under the collective bargaining agreement or 2) complain to OSHA, but not both — and a decision to go for one or the other is a binding "election" that the railroader is stuck with.
ADDING INSULT TO INJURY
The Norfolk Southern Railway ("NS") used this "election of remedies" argument against Larry Koger, a Hoey & Farina client in West Virginia. Larry was fired after he reported he had been injured on the job by an accident caused by a co-worker. After Larry's local union officer and General Chairman started grievance proceedings under the collective bargaining agreement, Hoey & Farina filed a complaint for Larry with OSHA, alleging that railroad supervisors used a phony "re-enactment" to blame him for the accident. Hoey & Farina also sued the NS in Federal court in West Virginia seeking compensation for the severe injuries that ended Larry's career as a railroader. In the OSHA case, an Administrative Law Judge dismissed Larry's retaliation complaint. Then, Hoey & Farina appealed that decision to the Department of Labor's Administrative Review Board.
While the "administrative appeal" was pending, Larry's Federal Employers' Liability Act ("FELA") case went to trial in Bluefield, West Virginia, where he was represented at trial by James L. Farina of Hoey & Farina. The jury in the FELA case totally rejected the railroad's testimony that "re-enactments" supposedly proved that Larry could have prevented the accident. Agreeing with Jim Farina's arguments that the jury would be rewarding false testimony from railroad supervisors if it took as much as a penny away from Larry for allegedly causing his own accident, the jury awarded him $3.4 million in compensatory damages — with not a penny taken away for alleged "contributory negligence."
TWO MORE VICTORIES
The railroad's appeal in the FELA case was rejected by the U.S. Court of Appeals in January 2011. And now, in the latest development in Hoey & Farina's continuing battle to achieve complete justice for Larry Koger, on September 29, 2011, the U.S. Department of Labor's Administrative Review Board reversed the ruling that dismissed Larry's OSHA complaint. The Review Board — agreeing with arguments that were first made by Hoey & Farina — ruled that the "election of remedies" provision in Section 20109 does not prohibit a railroader from complaining to OSHA about railroad retaliation — even if the railroader's union started grievance and arbitration proceedings under a collective bargaining agreement before the OSHA complaint was filed. Hoey & Farina is pleased to provide a copy of the Administrative Review Board's ruling in Larry Koger's OSHA case (which was consolidated for ruling with another case that presented the same dispute concerning "election of remedies").
Hoey & Farina,P.C. would like to thank the many union officers and attorneys who supported our appeal to the Administrative Review Board.
- Part I - Congress Stands Up For Railroad Whistleblowers
- Part II - Basic Questions And Answers About Whistleblower Protection Laws
- Part III - Protection for Refusing to Violate Safety Laws
- Part IV - Procedures & Remedies For Protecting Your Whistleblower Rights
- Part V - Supreme Court Decision May Extend Reach of Anti-Retaliation Law
- Part VI - Procedures for Filing Whistleblower Retaliation Claim
- Part VII - OSHA Investigation of Claim
- Part VIII - Sample OSHA Complaint
- Part IX - New Federal Law Protects Local Remedies
- Part X - Government Report Slams Railroad Misconduct
- Part XI - Sorting Out "Election of Remedies"
- Part XII - Court Clarifies Requirements For Proving A Retaliation Claim
- Part XIII - Railroad Leaves "Fingerprints" of Retaliation by "Hounding" Employee