By Michael Bologna
CHICAGO--Norfolk Southern Railway Co. has been hit with claims for more than $1.1 million in compensatory and punitive damages following a pair of whistleblower complaints alleging the freight rail company illegally fired three workers who complained about safety issues, the Occupational Safety and Health Administration announced Feb. 28.
Virginia-based Norfolk Southern criticized OSHA for conducting a “flawed” investigation and vowed to appeal the agency's determination. The company said an appeal would void OSHA's decisions and trigger legal proceedings.
OSHA said it found violations of the whistleblower provisions of the Federal Railroad Safety Act (FRSA) involving workplace accidents in Indiana and Pennsylvania. Since August 2007, when OSHA was given authority over FRSA whistleblower complaints, the agency has received more than 1200 complaints. Sixty percent of the FRSA complaints involve allegations that an employer retaliated after an employee reported a workplace injury.
In one investigation, OSHA said a crane operator based in Fort Wayne, Ind., was terminated after reporting an injury that required the extraction of a sliver of metal and rust from his eye. Norfolk Southern accused the worker of making false statements with respect to the injuries, but OSHA's investigation concluded the individual would not have been fired if he had not made the report.
OSHA ordered the rail company to pay $100,000 in compensatory damages, $175,000 in punitive damages, and $156,518 in back wages. In addition, the agency ordered the employer to pay $6,072 to compensate the crane operator for penalties incurred when he redeemed savings bonds prior to their maturity date following termination.
In the second complaint, a thermite welder and a welder's helper in Western Pennsylvania were terminated after their involvement in an accident while traveling in a company truck. The two men initially declined medical treatment, but later sought treatment at a local hospital. Norfolk Southern conducted an investigation and concluded the men engaged in misconduct by offering false reports about their injuries.
OSHA determined the men were fired for reporting their injuries to their employer. In line with that view, the agency ordered $150,000 in compensatory damages, $300,000 in punitive damages and $233,508 in lost wages, benefits and out-of-pocket expenses.
OSHA said Norfolk Southern has been involved in several retaliation complaints over the last two years.
“The Labor Department continues to find serious whistleblower violations at Norfolk Southern and we will be steadfast in our defense of a worker's right to a safe job, including his or her right to report injuries,’’ commented OSHA's acting secretary Seth D. Harris in a statement.
Norfolk Southern rejected OSHA's findings and said it would appeal the determinations to an administrative law judge.
“Norfolk Southern disagrees with OSHA's decisions in these cases, which are the result of a flawed, one-sided procedure in which the railroad was not permitted to question the employees under oath or cross examine witnesses,” Susan Terpay, the company's director of public relations, told BNA in an electronic message.
Terpay added that the company was “disappointed and surprised” by the orders because OSHA had encouraged the parties to reach negotiated resolutions. Terpay said OSHA was aware that settlement offers had been exchanged and mediation was being considered when the announcement was made.