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$438,000 award in rail worker’s firing

Railroad told to pay back, rehire crane operator

Norfolk Southern Railway Co. has been ordered to reinstate a Fort Wayne employee it fired and pay him nearly $438,000 in damages.

The railroad said Thursday it will appeal that ruling and another by the U.S. Department of Labor’s Occupational Safety and Health Administration.

In all, OSHA ordered Norfolk Southern to pay $1.21 million to three fired workers in what the agency said were violations of whistleblower provisions of the Federal Railroad Safety Act.

OSHA said the workers were wrongfully fired for reporting workplace injuries. The second ruling involved two railroad employees injured in a traffic crash in western Pennsylvania.

The Labor Department said it does not release the names of workers involved in whistleblower complaints.

In the local case, OSHA said a crane operator based in Fort Wayne suffered an injury “requiring the extraction of a sliver of metal and rust ring from his eye” while working in support of a bridge-building operation in Albany, a town northeast of Muncie in Delaware County.

The worker was fired Aug. 24, 2010, after Norfolk Southern “determined he had made false statements concerning the injury,” according to an OSHA statement issued Thursday. But OSHA said its inquiry “concluded that the worker would not have been terminated if he had not reported the injury.”

OSHA ordered Norfolk Southern to pay the worker $175,000 in punitive damages, about $156,500 in back wages and benefits, $100,000 in compensation for pain and suffering and nearly $6,100 in other expenses. The agency also ordered the railroad to reinstate the worker at the appropriate seniority level and restore vacation and sick days he would have earned had he not been fired.

Norfolk, Va.-based Norfolk Southern said in a statement that OSHA’s order “is 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.” It said it will appeal the decision to an administrative law judge.

Norfolk Southern also said it is “disappointed and surprised by OSHA’s findings, as OSHA had earlier encouraged the parties to reach voluntary resolutions of both cases, and OSHA was aware that the parties had exchanged settlement offers and demands and were in the midst of discussing mediation.”