Railroad whistleblowers received some encouraging news this summer following a decision by the Administrative Review Board (ARB) of the U.S. Department of Labor (DOL) in the case of Leiva v. Union Pacific Railroad Co., Inc., ARB Nos. 14-016, -017, ALJ No. 2013-FRS-19 (ARB May 29, 2015). The case involved allegations brought by Daniel Leiva, an engineer for Union Pacific Railroad in Texas. At the conclusion of a trip in July 2012, Mr. Leiva was involved in a verbal altercation with a train conductor who yelled at Mr. Leiva using profanity and repeatedly pointed his finger at Mr. Leiva’s face. Mr. Leiva felt intimidated and withdrew from the situation and reported the conductor’s actions. These reports ultimately resulted in suspensions without pay for both employees. Mr. Leiva’s supervisor conceded that had Mr. Leiva withdrawn his complaint, no such suspension would have been handed down.
Mr. Leiva filed a complaint with the U.S. Occupational Safety and Health Administration (OSHA) alleging that his suspension constituted a violation of the Federal Railroad Safety Act (FRSA), which protects railroad workers from retaliation for reporting certain workplace safety issues. OSHA dismissed Mr. Leiva’s claims, and he appealed to a DOL administrative law judge (ALJ). The ALJ found that Union Pacific had violated the FRSA and ordered it to pay Mr. Leiva back pay, expenses, and other damages and to expunge all disciplinary references relating to Leiva’s suspension from his personnel record. Union Pacific appealed to the ARB.
The ARB upheld the ALJ’s ruling in favor of Mr. Leiva. The ARB found that Mr. Leiva’s report of workplace violence constituted protected activity under FRSA for two reasons. First, Mr. Leiva offered evidence demonstrating that he had been trained that: (a) workplace violence was a violation of Union Pacific rules; and (b) following Union Pacific rules would keep him compliant with federal regulations. Mr. Leiva asserted that he therefore believed in good faith that the threatening behavior constituted a violation of the FRSA. The ARB deferred to the ALJ’s determination that Mr. Leiva’s assertion was credible and, accordingly, found that his report of the threatening behavior constituted protected activity.
Second, the ARB upheld the ALJ’s determination that Mr. Leiva’s reporting constituted a report of a “hazardous safety or security condition” because: (a) Mr. Leiva felt threatened by the conductor; (b) Mr. Leiva was therefore unable to adequately communicate with the conductor; and (c) communication between an engineer and a conductor is essential to the safe operation of a train. Accordingly, the threats created a hazardous safety or security condition, and the ARB found that Mr. Leiva’s reports of that hazardous safety condition were protected under the FRSA.