subway train The F train in New York City (Photo: Wikimedia).

Updated at 2:38 p.m.

A federal labor appeals board on Tuesday upheld a ruling that said the National Transit Systems Security Act provides anti-retaliation protections to municipal workers who report concerns about workplace safety and not just matters affecting the general public.

The ruling by the U.S. Department of Labor’s Administrative Review Board upheld a lower judge’s decision that the New York City Transit Authority had challenged as wrongly decided. The department backed the transit employee, Janathan Harte, who worked in a shop that built subway track-related items and who had made complaints about alleged safety hazards.

Harte’s case was closely watched as a test of the scope of the federal National Transit Systems Security Act, or NTSSA, which says public transportation agencies cannot take certain retaliatory or discriminatory actions against public transit workers. New York’s legal team, which included Robert Drinan, executive agency counsel at NYC Transit, argued the law concerns matters broadly affecting the general public.

The three-judge labor review board said the NTSSA refers to “safety” many times “without reference or limitation to public security or terrorism.” The law covers employees who raise concerns about workplace safety hazards, the panel concluded.

“We note that the plain language of the NTSSA protects an employee who reports safety and security concerns and is not limited to actions involving public safety or threats of terrorism,” the labor appeals panel said.

The NYC Transit’s general counsel was not immediately reached for comment Wednesday.

Harte’s lawyer, Charles Goetsch, who is based in New Haven, Connecticut, said in an email:  “The significance of the ARB’s decision is that for the first time the ARB is explicitly confirming the NTSSA applies to the safety of transit employees in their workplaces and not just to the safety of transit passengers in public places.”

In a blog post in 2016, when an administrative law judge ruled for Harte, Goetsch said “there have been very few decisions under the NTSSA, no doubt due to a pervasive culture of intimidation and retaliation that discourages whistleblowing by subway and bus workers.”

The U.S. Department of Labor in 2016 filed a brief in support of Harte. “The Assistant Secretary disagrees with respondents’ narrow interpretation of the scope of protected activity under the Act,” the department’s attorney, Christine Han, said in the friend-of-the-court filing. “NTSSA protects acts related not only to the safety and security of public transportation but also to workplace safety hazards affecting employees of transit systems.”

The administrative law judge awarded Harte $1,656 in compensatory damages for “wages lost as a result of the adverse employment action taken” by NYC Transit. The transit agency’s lawyers had argued that Harte suffered no adverse employment action based on his safety complaints.

Harte, according to the judge, spent a combined six vacation and two personal days pursuing claims of retaliation. The appeal board upheld the compensatory award. The board also awarded $7,698 in attorney fees to Harte’s lawyer, who had asked for about $11,000 at an hourly rate of $600.

 

The Administrative Review Board’s decision is posted below:

 

 

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This post was updated with comment.