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Straight
Track #53
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Harassment & Intimidation Of The Injured Railroad Employee
J.
Dillon Hoey
Hoey & Farina Partner
1-888-425-1212
The Federal Railroad
Administration (FRA) representative at the Winter Meetings of the Academy of
Rail Labor circulated a handout on the issue of “Harassment and
Intimidation.”
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The reason
we’re sharing this with you is that the FRA representative felt that the
changes in policy by the railroads were not widely circulated or
understood by the members.
The discussion quickly changed to the issue that
concerned your designated counsel, i.e. harassment and intimidation of the
injured employee. The FRA said that their inquiries were limited to
harassment and intimidation to obstruct the filing of an accident report.
But they did say they were attempting to extend that concept to
include:
1) Delay of
time between accident and receiving medical treatment as proof of
harassment and intimidation (i.e. medical help 20 minutes away but no
treatment 1˝ hours).
2) Railroad
representatives in treating room giving medical advice about care,
treatment, and medication so that an employee is sent back to work or
placed on light duty so an accident report doesn’t have to be filed.
3)
Activities of railroad officials that exert influence on the health
care professional to return the injured employee to work too soon.
The FRA
representative suggested that the person to contact was the regional
office not local inspectors. Every
complaint is investigated and must contain the actual facts documented as
thoroughly as possible including witnesses’ names, addresses, and phone
numbers. It should not contain conclusions or mere allegations.
They also were
very concerned about the change in administration.
Harassment and Intimidation
I. Changes in Policies
The past three
to four years has witness significant changes in the discipline policies
within the railroad industry. In
general, four common features exist between these new policies: (1) stress
on counseling and teaching in lieu of punitive measures, (2) joint review
by railroad management and rail labor on the administration of the
policies, (3) coverage applies to craft employees, and (4)
progressive levels/stages of discipline.
Key
features of some of these new policies:
A.
Burlington Northern Santa Fe: Policy for Employee Performance
Accountability
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Effective
November 1, 1996.
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Revised
policy effective June 1, 2000
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Policy
developed in conjunction with labor's input.
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No
levels 1-5 structure.
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Use
of "record" suspensions.
Administrative suspension given to employees' with excellent
history of performance. Employees
remain on the job.
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Serious
offenses still exist, e.g. Rule G violations, Operating Rules
violations.
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Concern
is with cumulative behavior.
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Reduction
in probationary period for the first offense.
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System-wide
consistency is emphasized in accessing discipline.
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Coverage
applies to all craft employees.
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In
determining the level of discipline, the employee's rule violation
history is considered for a one year period prior to the current case.
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Review
of all dismissals and suspensions by senior management
representatives. Labor
and FRA are invited to attend the review.
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Labor
and FRA are invited to attend the review.
B.
CSXT: Individual
Development & Personal Accountability Policy
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Effective
July 1, 1998.
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Policy
developed in partnership with the United Transportation Union and the
Brotherhood of Locomotive Engineers.
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Desire to
provide a more constructive, respectful, and less punitive atmosphere.
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Employees
start out clean under the new policy; no retroactive application.
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Policy
covers all craft employees in some form of IDPA.
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Addresses
disciplinary actions under three scenarios: minor, serious, and major
offenses.
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Formal
disciplinary hearings are not convened to investigate personal
injuries.
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Fellow
craft intervention procedures are provided as an alternative to
discipline.
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Oversight
team comprised of management and labor to review all cases which
result in suspensions of 30 days or more or dismissal. Oversight team to review administration of the policy.
C.
Norfolk Southern: System Teamwork and
Responsibility Training Program
Responsibility Training Program
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Effective
January 1, 2000.
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Designed to
provide positive learning experiences, training, and employee growth
opportunities.
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Employees
start out clean under the new policy.
However, prior records will be taken into consideration in the
handling of a serious or major offense.
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UPGRADE
procedures include discipline assessment and progressive tables.
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Changes the
level to which employees are reinstated when returning from Level V.
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Eliminates
step-up for lost work day personal injuries.
II.
Other Related Changes
A. Medical Card
The carriers
have eliminated the practices of supervisory personnel accompanying
employees in the examination room while being treated and the use of
medical cards. Both practices
(accompanying/cards) were considered by rail labor as a form of harassment
and intimidation. The card
informed a physician as to what was a reportable injury under Federal
regulation and, from the viewpoint of rail labor, discouraged the
reporting of injuries.
Elimination of
the above practices was formal in some instances, e.g., issuance of a
directive by NS, and in other instances the understanding of an informal
policy change.
B.
Managerial Conduct - Supplemental Review Process
Policy
effective July 1, 1999, by UP which states, in part, that: "the
harassment or intimidation of anyone filing a report of a violation of a
managerial conduct policy will not be tolerated".
C.
Empowerment Process
UP
letter of March 30, 1999: "No employee should be disciplined
discriminated against or harassed as the result of their decision to
empower themselves regarding safety issues that directly compromise
personal safety". A similar letter was previously issued.
Similar
policy enacted by BNSF.
D.
Reporting of Accidents, Incidents, Injuries, and Occupational
Illness
BNSF
letter of August 1, 1997:
"There
is no room at BNSF for intimidation, discrimination, or harassment".
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Policy
covers Train and Engine Service employees, along with yardmasters.
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Rule
infractions are divided into three categories: minor, serious, and
major. Only for major
offenses will employees be removed from service pending a formal
hearing.
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Employees
will not be disciplined for failing to report an injury immediately,
if, as soon as the injury manifests itself, the injury is reported.
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Local labor
representatives and management participate in determining possible
non-punitive measures.
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Oversight
Committee comprised of representatives from management and labor to
review cases to ensure fair and consistent handling.
D.
Union Pacific: Policy and Procedures for Ensuring Rules
Compliance
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Effective
October 1, 1998.
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Policy
developed through a consensus process as part of the SACP.
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Policy
designed to promote counseling, conferencing, training and education
as preferred alternatives to formal discipline.
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Policy
covers all craft employees.
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Policy
is not retroactive - - previous disciplinary record still effective.
Three
major components to policy: Discipline diversion Program, Discipline
Monitoring, Process, procedures for Measuring effectiveness.
Labor participates in these components.
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Discipline
Diversion Program provides alternatives to formal discipline in the
form of conferencing, training, or education (or a combination of
these options).
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UPGRADE
Formal Discipline Policy
supplements the above policy.
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Provides
specific levels of discipline and retention periods.
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Five levels
established ranging from minor offenses (Level I) to major/serious
offenses (Level V).
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Reduces
retention periods.
"…
harassment or intimidation of any person that is calculated to discourage
or prevent such person from receiving proper medical treatment of from
reporting an accident, incident, injury or illness will not be
tolerated".
Similar
policies enacted by other carriers.
III.
Statistical Information
A.
Burlington Northern Santa Fe
The decrease in
punitive discipline cases in 2000 over 1999, to a large degree, was the
result of the revisions that were made to the policy in mid year.
The revised policy maximizes the use of coaching and counseling and
alternative discipline for correcting employee behavior.
The policy establishes a process whereby, actual suspension of an
employee will be a rare exception, as opposed to a normal disciplinary
action. Also, an employee
must have five offenses in a 12-month (sliding) period, or two serious
offenses in a 36-month period, in order to be subject to dismissal. Actual suspensions may be used in lieu of dismissal, when an
employee has committed a dismissible offense.
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Dismissals
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(1996)
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(1997)
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(1998)
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(1999)
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(2000)
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372
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252
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264
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300
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284
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Suspensions
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(1996)
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(1997)
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(1998)
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(1999)
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(2000)
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1344
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1200
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1008
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1044
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630
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* "Record"
suspensions are not included in the above statistics.
B. CSXT
According to
what the railroad has to date, there is a pretty dramatic drop in
discipline from 1997 to 1998 (the new policies were officially launched
mid-year 1998,but there were some pilot programs as early as the first of
the year). Part of what
happened can be attributed to the "clean slate" provision, so
certain people who may have been right on the brink of dismissal got a
reprieve and started over again. It
took them awhile to work their way back through the progressive steps of
the new policy, and actual suspensions and dismissals were curtailed in
the meantime.
However, in
1999 dismissals and suspensions both increased, and that trend continued
in 2000. They expect to see a
few more in 2000, which may still be in the pipeline, but these are the
totals they have at the moment. CSXT
is still below the rate seen in 1997, which could be interpreted as a
victory of sorts, especially since the size of the workforce has
increased, and the demographics have changed.
However, the union representatives may view it as nothing more than
a "blip" in 1998, followed by a gradual return to previous
levels. CSXT is reporting
fewer cases of discipline for operating rule violations and injury-related
incidents than we did a few years ago, but there has been an increase in
Rule G (especially adulterated specimens), falsification of payroll, and
other forms of dishonesty.
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Dismissals
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Suspensions (30
days or more)
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1997
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126
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24
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1998
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45
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16
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1999
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70
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25
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2000
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71
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37
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C.
Norfolk
Southern
The NS
experienced a downward trend in both employee dismissals and suspensions
of 5 and 9 percent, respectively, 1999 over 1998.
Overall, 1998 through 2000, the railroad has experienced a 13
percent decline in the number of dismissals and 10 percent in suspensions.
In 2000, the
first full year of the Conrail acquisition, there was an 8 percent decline
in dismissals from 1999 levels. Suspensions
remained virtually the same. This
is noteworthy because on June 1, 1999, the NS total workforce jumped 50
percent from the Conrail acquisition, going from roughly 23,000 to 35,000
employees. The majority of
the employees were "covered".
On January 1,
2000, the NS implemented the Start program which covers the transportation
employees and yardmasters. The
NS has seen a wide acceptance of the program.
Since the program's inception, there have been 3500 incidents
documented for disciplinary handling.
This number does not include cases handled within the divisions, ie;
verbal instruction or incidental training to an employee by a trainmaster.
70% or 2450 incidents were handled under the program's alternative
methods. The other 30 percent
involved the employee receiving a form of disciplinary action.
Example: employee accepted responsibility and was charged.
The majority of these incidents involved deferred time discipline
and did not involve labor relations handling.
This has proven one of the benefits of the program, the ability to
handle infractions as training rather than punishment.
The
following counts involve all crafts and are only those cases that were
appealed to and handled by the NS Labor Relations Department.
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Dismissals
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Suspensions
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1998
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214
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183
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1999
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204
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166
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2000
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187
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165
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D.
Union Pacific
The overall
monthly average of discipline cases for part of 1999 and part of 2000 show
a downward trend of 7%. In addition the total number of events (discipline + diversion) is trending down by 6%.
Breakdown by discipline level:
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6
Months
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Avg.
Month
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9
Months
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Avg.
Month
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Pct.
+/-
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99/00
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2000
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Total Discipline:
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1387
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231
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1940
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215
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(-)
7%
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Total
Events: (Including Diversion)
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2777
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463
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3913
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434
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(-)
6%
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Total
Level 3 & 4 Events:
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571
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95
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832
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92
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(-)
3%
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Total
Level 1 & 2 Events:
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1965
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327
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2683
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298
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(-)
9%
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