U.S. Department of Labor

U.S. Department of Labor

Administrative Review Board

200 Constitution Ave. NW

Washington, DC 20210-0001

In the Matter of:

ANDRE CIESLICKI,

COMPLAINANT,

v.

ARB CASE NO.

2019-0065

ALJ CASE NO.

2018-FRS-00039

DATE: June 4, 2020

SOO LINE RAILROAD COMPANY,

d/b/a CANADIAN PACIFIC,

RESPONDENT.

Appearances:

For the Complainant:

Andre Cieslicki; pro se; Holmen, Wisconsin

For the Respondent:

Tracey Holmes Donesky, Esq.; Greta Bauer Reyes, Esq.; Stinson LLP;

Minneapolis, Minnesota

Before: James A. Haynes, Heather C. Leslie and James D. McGinley,

Administrative Appeals Judges

ORDER REVERSING AND REMANDING

PER CURIAM. This case arises from a complaint of discrimination filed under

the Federal Railroad Safety Act (FRSA). 49 U.S.C. §20109 (2007), as amended by

Section 1521 of the Implementing Recommendations of the 9/11 Commission Act of

2007 (9/11 Act), Pub. L. 100-53, and as implemented by 29 C.F.R. Part 1982 (2019)

and 29 C.F.R. Part 18 (2019), Subpart A. Andre Cieslicki (Complainant) was

employed by Soo Line Railroad Company d/b/a Canadian Pacific (Respondent).

Complainant filed a complaint with the U.S. Department of Labor’s Occupational

Safety and Health Administration (OSHA) alleging that the Respondent violated

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the FRSA by terminating him in retaliation for telling his employer that he could

not report to work because he drank two glasses of wine with dinner. Complainant

was concerned that if he reported for duty, he would violate “Rule G and the

obligation to Operate Safely.” Complaint at 1. Following an investigation, OSHA

dismissed the complaint because the alleged protected activity did not contribute to

Respondent’s decision to terminate Complainant’s employment. OSHA Findings

(Jan. 25, 2018) at 2. Complainant objected to OSHA’s determination, and requested

a hearing with the Office of Administrative Law Judges (OALJ).

On March 12, 2019, Respondent filed a Motion to Dismiss and Memorandum

of Law in Support of Motion to Dismiss for failure to state a claim asserting that

“Complainant’s self-reported, non-work-related physical state caused by his

personal decision to consume alcohol while off duty is outside the scope of the

hazardous safety conditions contemplated by FRSA . . . .” Respondent’s

Memorandum of Law in Support of Motion to Dismiss at 10. Complainant filed a

Response to the Motion to Dismiss on April 12, 2019, asserting that he met the

statutory requirements for “protected activity” under 29 U.S.C. §20109(a) and (b).

Complainant’s Response to the Motion to Dismiss at 1-3. He cited 49 C.F.R.

§219.105, as the federal regulation he would have violated if he had reported for

duty. Id. at 3-4.

After considering the parties’ submissions, a Department of Labor

Administrative Law Judge (ALJ) granted Respondent’s Motion to Dismiss. ALJ

Decision and Order (June 5, 2019) (D. & O.). Complainant appealed to the

Administrative Review Board (ARB or Board).

JURISDICTION AND STANDARD OF REVIEW

The Secretary of Labor has delegated authority to the Administrative Review

Board to issue agency decisions under the FRSA. Secretary’s Order No. 01-2020

(Delegation of Authority and Assignment of Responsibility to the Administrative

Review Board (Secretary’s discretionary review of ARB decisions)), 85 Fed. Reg. 13,

186 (Mar. 6, 2020); see 29 C.F.R. §1982.110(a).

The Board reviews an ALJ’s conclusions of law, including whether to deny a

complaint on a motion to dismiss, de novo. Boucher v. BNSF Ry. Co., ARB No. 20160085, ALJ No. 2014-FRS-00072, slip op. at 3-4 (ARB Mar. 22, 2019). Recognizing

that we must be impartial and refrain from advocating “for a pro se complainant,

we are equally mindful of our obligation to ‘construe complaints and papers filed by

pro se complainants “liberally in deference to their lack of training in the law” and

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with a degree of adjudicative latitude.’” Wallum v. Bell Helicopter Textron, Inc.,

ARB No. 2012-0110, ALJ No. 2009-AIR-00020, slip op. at 3 (ARB Sept. 19, 2012)

(quoting Williams v. Domino’s Pizza, ARB No. 2009-0092, ALJ No. 2008-STA-00052,

slip op. at 4 (ARB Jan. 31, 2011) (quoting Cummings v. USA Truck, Inc., ARB No.

2004-0043, ALJ No. 2003-STA-00047, slip op. at 2 (ARB Apr. 26, 2005))).

DISCUSSION

The FRSA prohibits a railroad carrier engaged in interstate or foreign

commerce from discharging, demoting, suspending, reprimanding, or in any other

way discriminating against an employee if such discrimination is due, in whole or in

part, to the employee’s protected activity. 49 U.S.C. § 20109(a), (b), (c). Activities

protected by FRSA include:

(a)(2) to refuse to violate or assist in the violation of any Federal law,

rule, or regulation relating to railroad safety or security;

...

(b) Hazardous safety or security conditions.--(1) A railroad carrier

engaged in interstate or foreign commerce, or an officer or employee of

such a railroad carrier, shall not discharge, demote, suspend,

reprimand, or in any other way discriminate against an employee for—

(A) reporting, in good faith, a hazardous safety or security condition;

(B) refusing to work when confronted by a hazardous safety or security

condition related to the performance of the employee’s duties, if the

conditions described in paragraph (2) exist;

...

(2) A refusal is protected under paragraph (1)(B) . . . if—

(A) the refusal is made in good faith and no reasonable alternative to the

refusal is available to the employee;

(B) a reasonable individual in the circumstances then confronting the

employee would conclude that-(i) the hazardous condition presents an imminent danger of death

or serious injury; and

(ii) the urgency of the situation does not allow sufficient time to

eliminate the danger without such refusal; and

(C) the employee, where possible, has notified the railroad carrier of the

existence of the hazardous condition and the intention not to perform

further work, or not to authorize the use of the hazardous equipment,

track, or structures, unless the condition is corrected immediately or the

equipment, track, or structures are repaired properly or replaced.

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49 U.S.C. § 20109(a)(2), (b).

Citing several district court decisions, including Lockhart v. Long Island R.R.

Co., 266 F. Supp. 3d 659 (S.D.N.Y 2017),1 the ALJ held that sections (a) and (b) of

FRSA are limited to work-related conditions and do not include a worker’s selfreported infirmities. D. & O. at 7-9. We disagree. Our first and primary reason is

that the statute does not limit complained of violations, hazardous safety

conditions, or security conditions as the ALJ held.

Initially, we also note that the Department of Labor’s primary purpose, as

regards the whistleblower protection provisions of FRSA, is safety. The department

promotes the goal of safety by prohibiting railroad employers from taking

unfavorable personnel actions against employees for reporting safety issues

whether because they are illegal or “only” very dangerous. 49 U.S.C. §20109(a)(2)

and (b)(1)(A) and (B). This purpose applies equally whether there is a regulatory

violation or hazardous safety condition that relates to the equipment, or the

condition of a person who is working on the equipment.

1. FRSA protected activity under 49 U.S.C. §20109(a)(2)

Turning to the statute at subpart (a), the Complainant argued in his

Opposition to the Motion to Dismiss that (a)(2), refusing “to violate or assist in the

violation of any Federal law, rule, or regulation relating to railroad safety or

security,” was implicated by his actions in refusing to report for duty on April 5,

2015. The federal regulation that he claimed would have been violated was 49

C.F.R. §219.105, which references §219.101 and §219.102.2 Complainant clearly

While the Second Circuit affirmed the district court’s decision in Lockhart, it did not

do so because the employee’s self-reported condition did not constitute protected activity as

a matter of law, but “[b]ecause the statute does not prohibit employers from requesting

reasonable documentation that employees’ absences are justified.” Lockhart v. MTA Long

Island R.R., 949 F.3d 75, 77 (2d Cir. 2020) (The Second Circuit stated that “[b]ecause

nothing in the text, structure, and purpose of the FRSA directs otherwise, the railroad was

within its rights to seek verification of illnesses before excusing appellant’s absences as

activity protected under the FRSA,” implying that the underlying activity would have been

protected). Id. at 80.

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The ALJ stated that Complainant failed to identify any federal law, rule or

regulations that he believed was violated under (a)(2) which was error as Complainant cited

§219.105, with highlighted portions of this regulation including references to §219.101 and

§219.102.

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stated that he would have violated this regulation if he had not refused to perform

any work until he was fit for duty. Opposition to Motion to Dismiss at 3-4.

The regulation at 49 C.F.R. §219.105 prohibits a railroad from allowing (with

actual knowledge) a regulated employee from going on or remaining on duty in

violation of the provisions of §219.101 and §219.102. Id. at 4. The provision states

that a railroad employee has actual knowledge of a violation when he receives a

regulated employee’s admission of alcohol or drug use. Id.

The provisions of 49 C.F.R. §219.101, appear to be directly on point in this

case. The regulation states, “Alcohol and drug use prohibited. (a) Prohibitions.

Except as provided in §219.103 –”

. . . (2) No regulated employee may report for regulated service, or go or

remain on duty in regulated service, while -(i) Under the influence of or

impaired by alcohol; . . . .

(1) No regulated employee may use or possess alcohol or any controlled

substance when

the employee is

on

duty

and

subject

to

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performing regulated service for a railroad.

(ii) Having 0.04 or more alcohol concentration in the breath or blood; or

(iii) Under the influence of or impaired by any controlled substance.

(3) No regulated employee may use alcohol for whichever is the lesser of

the following periods:

(i) Within four hours of reporting for regulated service; or

(ii) After receiving notice to report for regulated service.

This federal regulation fits squarely within the FRSA’s proscription on

violations of federal law. It relates to safety and security in the railroad industry.

The regulations specifically regulate employees while on duty, including a period

where the employee cannot drink prior to reporting to work. Notably, the regulation

does not prohibit drinking alcohol while off duty.

The regulation also relates to what the ALJ and Respondent call non-workrelated matters (alcohol use by railroad workers) and to the physical condition of

A regulated employee is defined by the regulations as “a covered employee or

maintenance-of-way employee who performs regulated service for a railroad subject to the

requirements of this part.” 49 C.F.R. §219.5. Regulated service is “covered service or

maintenance-of-way activities, the performance of which makes an employee subject to the

requirements of this part.” Id.

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railroad employees. Its subsection stating “[n]othing in this section restricts

a railroad from imposing an absolute prohibition on the presence of alcohol or

any drug in the body fluids of persons in its employ, whether in furtherance of the

purpose of this part or for other purposes,”4 gives railroads significant control over

their employee’s physical condition while on duty.5

As a result, once the Complainant refused to violate federal

regulations, he satisfied the definition of protected activity under the plain

language of the statute.

While the ALJ admitted that (a)(2) “does not appear to be limited to

work-related conditions,” he, nevertheless, stated that it was limited to workrelated conditions “for the same reasons identified above regarding subsection

(b).” D. & O. at 8. As we explain next, those reasons also fail to limit the FRSA

to work-related conditions under either section.

2. FRSA protected activity under 49 U.S.C. §20109(b)(1)(A) and (B)

We now turn to discussion of the statute at (b), which states that a railroad

shall not discriminate against an employee for reporting, in good faith, a hazardous

safety or security condition, or for refusing to work when confronted by a hazardous

safety or security condition related to the performance of his duties if certain

conditions in section (2) exist. 49 U.S.C. §20109(b)(1)(A) and (B).

The language in these two sections, “hazardous safety or security condition,”

does not require that a condition be “work-related” or state that the condition

cannot relate to an employee’s physical condition. Although section (2) references

“circumstances then confronting the employee,” and at one point, “equipment, track,

or structures,” it also states that the employee must have notified the railroad, if

possible, “of the existence of the hazardous condition and the intention not to

perform further work . . . unless the condition is corrected . . ..” (b)(2)(C). Again, the

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49 C.F.R. §219.101(c).

One reason courts have given for not protecting acts like Complainant’s is that the

“condition” must be within the railroad’s control. Significantly, Respondent argues that a

employee’s condition is outside of the railroad’s control. However, an impaired employee

operating a train or train equipment is “a hazardous condition” within the railroad’s

control. Once the railroad becomes aware of an employee’s impairment, it has a duty to

keep the impaired employee from working.

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language is general, broad, and does not limit the hazardous condition to that which

is “work-related” or to exclude a worker’s physical condition.

For the same reason that an impaired worker (from drugs and alcohol) is

regulated by the federal government—because such a worker presents a danger to

the public—the impaired worker can also become a hazardous safety or security

condition, if working in and around trains and train tracks.6 The term “hazardous

condition” is broad and may encompass many types of hazardous conditions. We

hold that it is broad enough to include impaired railroad workers who present a

danger of death or serious injury if they were to work without reporting those

hazardous conditions, or refusing to work because of their impaired condition.

3. Analogous STAA whistleblower protection provisions and ARB

precedent

Our precedent under the STAA supports our holding with respect to FRSA.

For decades, the ARB and the Secretary of Labor before that have held that an

employee’s condition (whether it be illness, fatigue, or other impairment) can

provide the basis for protected activity because it relates to a violation of STAA or

“reasonable apprehension of serious injury to the employee or the public. . ..” Self v.

Carolina Freight Carriers Corp., No. 1989-STA-0009 (Sec’y Jan. 12. 1990); Smith v.

Specialized Transp. Servs., No. 1991-STA-0022 (Sec’y Apr. 30, 1992); Logan v.

United Parcel Serv., No. 1996-STA-0002 (ARB Dec. 19, 1996); Garcia v. AAA Cooper

Transp., ARB No. 1998-0162, ALJ No. 1998-STA-00023 (ARB Dec. 3, 1998);

Johnson v. Roadway Express, Inc., ARB No. 1999-0111, ALJ No. 1999-STA-00005

(ARB Mar. 29, 2000); Eash v. Roadway Express, Inc., ARB No. 2000-0061, ALJ No.

1998-STA-00028 (ARB Dec. 31, 2002); Melton v. Yellow Transp., Inc., ARB No.

2006-0052, ALJ No. 2005-STA-00002 (ARB Sept. 30, 2008), aff’d Melton v. Yellow

Transp. Inc., 373 Fed.Appx. 572 (6th Cir. 2010).

Perhaps most relevant to our analysis, the STAA under section 49 U.S.C.

§31105(a)(1)(B) states: “the employee refuses to operate a vehicle because (ii) the

employee has a reasonable apprehension of serious injury to the employee or the

public because of the vehicle’s hazardous safety or security condition.” (emphasis

added). Even though this language references the “vehicle’s” condition, the Board

has interpreted this language to allow an employee to report (or refuse to operate)

Indeed, human error is a common reason for accidents in the railroad industry and

is one of the reasons why there are a multitude of rules and regulations for how a railroad

employee is to perform any number of tasks.

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because he is ill or otherwise impaired as protected activity. Melton, ARB No. 20060052, slip op. at 6. The Board has stated that this clause covers more than just

mechanical defects of a vehicle—it is intended to ensure “that employees are not

forced to commit . . . unsafe acts.” Id. (quoting Garcia, ARB No. 98-162, slip op. at

4). Thus, a driver’s physical condition may cause him to have a reasonable

apprehension of serious injury to himself or the public if he drove in that

condition. Id. (citing Somerson v. Yellow Freight Sys., Inc., ARB Nos. 1999-0005, 0036, ALJ Nos. 1998-STA-00009, -00011, slip op. at 14 (ARB Feb. 18, 1998)). The

FRSA’s language is broader than the STAA’s in that it does not state that it is

limited to conditions to on the train or at the railroad.

The protection afforded by the statute is not unlimited. Under the STAA, an

employee’s refusal to operate “must be based on an objectively reasonable belief that

operation of the motor vehicle would pose a risk of serious injury to the employee or

the public.” Melton, ARB No. 06-052, slip op. at 6 (citing Jackson v. Protein Express,

ARB No. 1996-0194, ALJ No. 1995-STA-00038, slip op. at 3 (ARB Jan. 9, 1997)). If a

STAA complainant refuses to operate a vehicle because of his condition, he does not

automatically prevail; to be protected, a refusal must be based on a condition that

impairs the driver’s ability to operate safely and employees must communicate that

the impaired condition exists to the employer. Garcia v. AAA Cooper Transp., ARB

No. 1998-0162, slip op. at 4-5; Wrobel v. Roadway Express, Inc., ARB No. 2001-0091,

ALJ No. 2000-STA-00048 (ARB July 31, 2003); Barr v. ACW Truck Lines, Inc., No.

1991-STA-00042 (Sec’y Apr. 22 1992).

Reasons related to the element of causation may also limit a driver from

prevailing in his case even if he engaged in protected activity. An employer may

take action against employees who feign illness, and the STAA does not prohibit an

employer from establishing reasonable methods or mechanisms for assuring that a

claimed condition is legitimate and serious enough to warrant a protected refusal to

drive. Ass’t Sec’y & Ciotti v. Sysco Foods Co. of Philadelphia, ARB No. 1998-0103,

ALJ No. 1997-STA-00030, slip op. at 8, 8 n.8 (ARB July 8, 1998) (in Ciotti, there

was substantial evidence that complainants’ condition was not fabricated and that

respondent had reason to know that; application of an absenteeism policy to

complainant under the circumstances was a violation of the STAA).

Our holding is supported by the parallel functions of STAA and FRSA. There

is no less of a safety function for deeming such reports and refusals protected

activity under FRSA as under STAA, as it would not be safe for the public if

employees operate trains if it would be a violation to do so or while they are unable

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to do so because they are so impaired (by drugs or alcohol) as to make their job

performance a hazard presenting an imminent danger of death or serious injury.

4. Other considerations

Concerning both subparts (a) and (b) of 49 U.S.C. §20109, the ALJ relied on

an inaccurate premise for support. Contrary to what the ALJ and the district court

in the Southern District of New York (in Lockhart) contend, our ruling does not

mean that an employee who engages in protected activity by refusing to work

because of his impairment may not be disciplined. If an employer decides to

discipline an employee because the employee voluntarily chose to become impaired

at a time when the employee knew that he should not be impaired (because he was

on call, or because it is illegal), then the employer is not prohibited by the FRSA

from taking disciplinary action.

Thus, following the plain language of the statute to allow for such reports if a

violation of a rule is implicated, or a hazardous safety or security conditions exists,

does not lead to “absurd results.” Indeed, an absurd result would occur if an

employee who is not on call, drinks alcoholic beverages (as adults of legal age are

allowed to do), gets called to work unexpectedly, and then has to choose between

working in an impaired state on the railroad (violating federal law or causing a

hazardous safety or security condition), or getting fired for indicating that he cannot

safely report for duty.

To summarize, we reverse the ALJ’s holding that FRSA protected activity

under sections (a) and (b) is limited such that it does not include “self-reported

infirmities.” We do so because the statute does not so limit these sections. Further,

the FRSA supports giving effect to the plain language of the statute, and allowing for

such protection, when a railroad workers’ complaint or refusal satisfies the statutory

purpose. Finally, ARB precedent with respect to the STAA bolsters our holding.

CONCLUSION

The ALJ erred as a matter of law. We REVERSE and REMAND for

proceedings consistent with this opinion.

SO ORDERED.