Announcing A New Rail Safety Award

Posted on January 26, 2012 by Charlie Goetsch

Every year since 1913, the railroads with the lowest number of injuries reported to the FRA have been awarded the E.H. Harriman Memorial Safety Awards. No more. The rail industry has announced that after the awards ceremony in May 2012, the E.H.Harriman Awards will be discontinued.

But when it comes to rail safety, it would be a real shame not to give credit where credit is due. Fortunately, the criteria for a new rail safety award is now at hand. And so trainlawblog is pleased to announce the first annual P.U. Harassment Award. The prestigious P.U. Harassment Award is based on data compiled by OSHA's Office of Whistleblower Protection (and obtained through the Freedom of Information Act), and honors the railroad that has generated the highest number of Federal Rail Safety Act retaliation merit findings.

In addition to highlighting the callous disregard of railroads for the rights of its employees, the P.U. Harassment Award celebrates rail management's relentless determination to suppress the reporting of injuries and safety concerns through the imaginative use of retaliatory discipline and discrimination.

So, without further adieu, trainlawblog hereby announces that the First Annual P.U. Harassment Award goes to the Union Pacific Railroad Company, in recognition of the nine Merit Findings its conduct has garnered to date. But the Norfolk Southern Railway is right behind with eight Merit Findings to date, and thus deserves Honorable Mention. And by this time next year the BNSF Railway Company will have a real chance to claim the Award, because it has well over 100 FRSA complaints pending decision, the most of any railroad in the nation!

So, congratulations to you winners! And to all you runner up railroads, remember that 2012 provides another 365 days of opportunity for you to demonstrate just how recklessly retaliatory you can be!

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Another Judge Rules FRSA Not Derailed By CBA Appeals

Posted on July 14, 2011 by Charlie Goetsch

Here's the latest judicial decision rejecting the bogus "election of remedies" defense railroads continue to raise in Federal Rail Safety Act cases. This one is especially sweet in that it allows a worker to continue her frontal attack against Norfolk Southern Railway's notorious practice of firing employees who report on duty injuries.

The facts are familiar to anyone who deals with Norfolk Southern. Latonya Milton reported an injury five days after the incident that caused the injury, and as usual NS fired her for filing an "untimely" injury report and for making "false and conflicting statements" regarding the reporting of her injury. She appealed the termination through her collective bargaining agreement, and also filed a FRSA complaint with OSHA's Whistleblower Office. NS argued that her CBA appeal was an "election of remedies" that precluded her from pursuing a FRSA claim.

Judge Malamphy rejected that argument, ruling Milton "is not precluded from appealing her termination pursuant to her collective bargaining agreement while simultaneously litigating this claim under the FRSA." NS asked for an immediate reconsideration, but to no avail. The Judge again concluded: "I find that the FRSA does not prevent an individual who has filed a grievance pursuant to a collective bargaining agreement from pursuing a complaint under the FRSA." How many times do judges have to rule before the railroads accept reality? For the complete text of both decisions, click here.

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Norfolk Southern Hit With FRSA Damages

Posted on April 11, 2011 by Charlie Goetsch

 

OSHA has blown the whistle on Norfolk Southern Railway Company's practice of disciplining injured workers based on bogus "falsification" charges. From now on, Norfolk Southern's "falsification" strategy will cost it dearly.

In order to discourage the reporting of injuries, Norfolk Southern routinely charges injured employees with "falsifying" the injury. That is what happened to Conductor Jeff Thompson. After he reported an injury, he was accused of falsifying his symptoms and was suspended for six weeks. A RLA arbitrator ordered Norfolk Southern to pay all of his back wages, and now OSHA is ordering the Railroad to pay $15,000 for his emotional distress and another $15,000 in attorney fees.

This Award is noteworthy because (1) it lays the groundwork for punitive damages against Norfolk Southern for such egregious conduct, and (2) it confirms that a RLA award of back wages does not prevent OSHA from ordering the full spectrum of Federal Rail Safety Act economic and equitable remedies. For the full text of the Award, click here.

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