OSHA hits Norfolk Southern with whistleblower fines yet again, cites rigged hearings

August 8, 2012

Legal Affairs

Norfolk Southern Railway Co. has become a repeat violator of whistleblower protection provisions of the Federal Railroad Safety Act, the U.S. Department of Labor charged in fining the railroad company more than $300,000 for its latest retaliation against an employee who complained about safety on the job.

The newest fine, combined with fines levied in three previous cases, brings the company’s whistleblower retaliation penalties to over $1 million in recent months.

Norfolk Southern, which has a rail yard in Meridian and whose Crescent Corridor tracks run through the southern portion of Mississippi, fired the Chattanooga-based worker after he reported a workplace injury.

The Labor Department’s Occupational Safety and Health Administration determined the firing came in retaliation for reporting the e injury. Further, OSHA found that the railroad “orchestrated” the finding of an investigative hearing to ensure the hearing resulted in a favorable ruling for the company.

The railroad has been ordered to pay the former employee more than $300,000 in damages, including $200,000 in punitive damages, $75,000 in compensatory damages and $25,123 in attorney’s fees. Additionally, the company must expunge the disciplinary record of the employee as well as post a notice regarding employees’ whistleblower protection rights under the FRSA and provide training to its employees about these rights.

The OSHA action follows several other orders issued by the department to Norfolk Southern in the past year. OSHA’s investigations have found that the company continues to retaliate against workers for reporting work-related injuries, which effectively has created a chilling effect in the railroad industry, the agency says.

The employee in the most recent case reported an injury when he hit his hard hat against a horizontal support beam. After conducting an investigative hearing, the railroad charged the employee with falsifying his injury and subsequently terminated him on Oct. 8, 2010.

The employee appealed, and a Public Law Board upheld the railroad’s decision while reducing the termination to a suspension with no back pay. OSHA found that the railroad’s investigative hearing was severely flawed and orchestrated to intentionally support management’s decision to terminate the employee.

“Railroad workers throughout this country have the right to report an injury without fear of retaliation,” said Cindy A. Coe, OSHA’s regional administrator in Atlanta. “The Department of Labor will continue to protect all employees, including those in the railroad industry, from retaliation for exercising these basic worker rights, and employers found in violation will be held accountable.”

Norfolk Southern Railway Co. is a major transporter/hauler of coal and other commodities serving every major container port in the eastern United States with connections to western carriers. Its headquarters are in Norfolk, Va., and it employs more than 30,000 union workers.

In other recent whistleblower protection actions against the railroad, OSHA ordered Norfolk Southern to pay three whistleblowers $802,168.70 in damages, including $525,000 in punitive damages and attorneys’ fees. Additionally, the company has been ordered to expunge the disciplinary records of the whistleblowers, post workplace notices regarding railroad employees’ whistleblower protection rights and provide training to its employees about these rights.

OSHA’s offices in Columbia, S.C.; Nashville, Tenn.; and Harrisburg, Pa completed three concurrent investigations. The investigations revealed reasonable cause to believe that the employees’ reporting of their workplace injuries led to internal investigations and, ultimately, to dismissals from the company.

A laborer based in Greenville, S.C., was terminated on Aug. 14, 2009, after reporting an injury as a result of being hit by the company’s gang truck. The railroad charged the employee, a laborer, with improper performance of duties.

OSHA found that the employee was treated disparately in comparison to four other employees involved in the incident. The laborer was the only employee injured and, thus, the only employee who reported an injury. He also was the only employee terminated. OSHA has ordered the railroad to pay punitive damages of $200,000 as well as compensatory damages of $110,852 and attorney’s fees of $14,325.

In Louisville, Ky., an engineer at a Norfolk Southern facility was terminated on March 31, 2010, after reporting an injury as a result of tripping and falling in a locomotive restroom. The railroad, after an investigative hearing, charged the employee with falsifying his injury. OSHA found that the investigative hearing was flawed and orchestrated to intentionally support the decision to terminate the employee. OSHA has ordered the railroad to pay the employee $150,000 in punitive damages, $50,000 in compensatory damages and $7,375 in attorney’s fees.

On July 22, 2010, a railroad conductor based in Harrisburg, Pa., was terminated after reporting a head injury sustained when he blacked out and fell down steps while returning from the locomotive lavatory. The company, after an investigative hearing presided over by management officials, found the employee guilty of falsifying a report of a work-related injury, failing to promptly report the injury, and making false and conflicting statements. The day before the injury, the employee had been lauded for excellent performance, highlighted by no lost work time due to injuries in his 35-year career.

OSHA found that the investigative hearing was flawed, and there was no evidence the employee intended to misrepresent his injury. OSHA is ordering the railroad to pay the employee $175,000 in punitive damages, $76,623.27 in back wages plus interest and $17,993.43 in compensatory damages, as well as all fringe benefits.

 

 

 

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