September 20, 2014

NS: More than a hat trick or golden sombrero

OSHA logo; OSHAIn ice hockey, the scoring by one player of three goals is called a “hat trick.” In baseball, a player striking out four times in a single game is said to have earned a “golden sombrero.”

Norfolk Southern’s feat is to have earned from OSHA a still unnamed fifth significant sanction in recent months for violating – through harassment, intimidation and unwarranted discipline — the rights of injured employees or those attempting to report a safety concern.

While other railroads have earned one or more recent rebukes from OSHA, Norfolk Southern seems headed for a gold medal in this dubious category of employee harassment, intimidation and unwarranted discipline.

OSHA says the reason has been the railroad’s single-minded, if not narrow minded, determination to be declared the nation’s safest railroad – albeit through harassing, intimidating and disciplining workers not to report their workplace injuries.

Norfolk Southern denies the allegations and is appealing each of the OSHA actions.

BNSF, which also has been sanctioned numerous times by OSHA for similar violations of the rights of injured and safety-conscious employees, recently took the art of intimidation to a new level by attempting to coerce employee witnesses to its alleged violations to allow a BNSF attorney in the room when questioned by OSHA investigators. BNSF denies its intent is to intimidate those employees from being candid with OSHA investigators.

“Railroad workers throughout this country have the right to report an injury without fear of retaliation,” said Cindy Coe, OSHA’s regional administrator in Atlanta. OSHA, she said, “will continue to protect” rail workers from employer retaliation, and employers found in violation “will be held accountable.”

As reported by the Norfolk, Va., Virginian Pilot newspaper, four of the five OSHA-determined violations were announced within months of Norfolk Southern’s winning the railroad industry’s E.H. Harriman gold medal safety award in May for the 23rd year in a row.

“The Harriman program, in place for nearly 100 years, quietly ended with this year’s awards, though news releases about this year’s winners from Norfolk Southern and the Association of American Railroads did not explicitly state that the program was over,” reported the newspaper. “The industry group did not say why it ended.”

A Norfolk Southern spokesperson told the newspaper there was “no connection” between its OSHA-determined violation of employee rights under federal law and the ending of the Harriman program.

The UTU and other rail labor organizations have long held that the Harriman awards program encouraged carrier supervisors to harass, intimidate and discipline injured and safety-conscious employees in an effort to earn cash bonuses and promotions in conjunction with their railroad’s winning of a Harriman gold, silver or bronze medal.

The award is named after the late railroad baron Edward Henry Harriman who, during the late 19th and early 20th century, held financial control of Union Pacific, Southern Pacific, Illinois Central, Central of Georgia, plus other smaller railroads, a steamship line and Wells Fargo Express.

The UTU documented in 2007 that a Norfolk Southern supervisor posed as a clergyman to enter the hospital room of an injured worker. Once there, according to obtained evidence, he tried to convince the attending physician not to prescribe a particular medication, which would have required reporting the injury to the Federal Railroad Administration and putting the winning of a Harriman gold medal at risk.

The Federal Railroad Safety Act of 1970 extended whistleblower protection to employees who are retaliated against for reporting an injury or illness requiring medical attention. The Rail Safety Improvement Act of 2008 added additional requirements ensuring injured workers receive prompt medical attention.

Their purpose is to protect rail workers from retaliation and threats of retaliation when they report injuries or illness, report that a carrier violated safety laws or regulations, or if the employee refuses to work under certain unsafe conditions or refuses to authorize the use of safety related equipment.

An employer is outright prohibited from disciplining an employee for requesting medical or first-aid treatment, or for following a physician’s orders, a physician’s treatment plan, or medical advice.

Retaliation, including threats of retaliation, is defined as firing or laying off, blacklisting, demoting, denying overtime or promotion, disciplining, denying benefits, failing to rehire, intimidation, reassignment affecting promotion prospects, or reducing pay or hours.

UTU designated legal counsel have pledged to investigate and assist UTU members in bringing complaints under these laws.

A rail employee may file a whistle-blower complaint directly with OSHA, or may contact a UTU designated legal counsel, general chairperson or state legislative director for assistance.

A listing of UTU designated legal counsel is available at:

http://utu.org/designated-legal-counsel

or may be obtained from local or general committee officers or state legislative directors.

To view a more detailed OSHA fact sheet, click on the following link:

www.osha.gov/Publications/OSHA-factsheet-whistleblower-railroad.pdf