Region 4 News Release: 12-2350-ATL (390)
Nov. 29, 2012
Contact: Michael D'Aquino
Phone: 404-562-2076
Email: d'aquino.michael@dol.gov

Norfolk Southern Railway Co. ordered by US Labor Department
to pay more than $288,000 for violating Federal Railroad Safety Act
Whistleblower in Georgia to receive compensatory and punitive damages, attorneys' fees

SAVANNAH, Ga. – The U.S. Department of Labor's Occupational Safety and Health Administration has found that Norfolk Southern Railway Co. violated the whistleblower protection provisions of the Federal Railroad Safety Act and ordered the company to pay more than $288,000, including for back pay, interest, mental anguish, punitive damages and reasonable attorney's fees. This action follows several other orders issued by OSHA against Norfolk Southern Railway Co. in the past two years. Investigations have found that the company continues to retaliate against workers for reporting work-related injuries, effectively created a chilling effect within the railroad industry.

Additionally, the company has been ordered to 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.

On Sept. 19, 2009, the employee had to use additional force to move a switch so that a train could go from one set of tracks to another. On Sept. 21, 2009, while off-duty, he felt a sharp pain in his lower back while getting up from his chair and immediately reported the injury to his supervisor. A few days later, the railroad removed the employee from service, scheduled an investigative hearing, and charged him with falsifying an injury, providing conflicting information relative to the injury and late reporting of the injury. He was terminated on Nov. 5, 2009. An OSHA investigation revealed that the employee was retaliated against for reporting a workplace injury and following the company's reporting policy.

On March 30, 2010, under duress by the railroad, the employee signed a leniency waiver. He was returned to service nearly six months later, on Sept. 20, 2010.

OSHA found that the company's investigative hearing was severely flawed and intentionally designed to support its decision to terminate the worker. Moreover, OSHA's investigation revealed callousness in the steps the railroad took to retaliate against this employee, including the coercion into admitting wrongdoing when the record shows that the employee was simply following company policy.

"Railroad workers continue to be harassed, intimidated and even terminated for reporting workplace injuries," said Cindy A. Coe, OSHA's regional administrator in Atlanta. "The Department of Labor will continue to protect all railroad employees from these retaliatory acts and will hold employers accountable for their illegal actions."

In this case, OSHA is ordering the railroad to pay the worker $150,000 in punitive damages; $125,000 for mental anguish, pain and suffering; $10,550 in back pay and costs associated with purchasing back lost retirement benefits; and $3,150 in attorney's fees. Either party to the case can file an appeal to the Labor Department's Office of Administrative Law Judges.

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., with more than 30,000 union employees.

OSHA enforces the whistleblower provisions of the FRSA and 21 other statutes protecting employees who report violations of various securities laws, trucking, airline, nuclear, pipeline, environmental, rail, maritime, health care, workplace safety and health regulations, and consumer product safety laws.

Under the various whistleblower provisions enacted by Congress, employers are prohibited from retaliating against employees who raise various protected concerns or provide protected information to the employer or to the government. Employees who believe that they have been retaliated against for engaging in protected conduct may file a complaint with the secretary of labor for an investigation by OSHA's Whistleblower Protection Program. Detailed information on employee whistleblower rights, including fact sheets, is available online at http://www.whistleblowers.gov.

Note: The U.S. Department of Labor does not release names of employees involved in whistleblower complaints.

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U.S. Department of Labor news materials are accessible at http://www.dol.gov. The information above is available in large print, Braille or CD from the COAST office upon request by calling 216-893-7828 or TTY 216-893-7755.