Posts Tagged ‘designated legal counsel’

Former Virginia Sen., DLC Willard Moody Sr. dies

Willard James Moody, Sr., a well-regarded attorney and former state legislator who served as a longtime Designated Legal Counsel (DLC) for the United Transportation Union (UTU) and advocated on behalf of railroad workers in the court of law throughout his life, passed away March 27. He was 94.

“Willard devoted his professional life to securing and strengthening the FELA (and) seeking justice for thousands of injured railroad workers over a career that spanned seven decades,” said James A. Stem, retired SMART Transportation Division/UTU national legislative director and executive director of the Academy of Rail Labor Attorneys. “We all stand on his shoulders.”

Moody Sr.

Born June 16, 1924, Moody was a U.S. Army veteran and served in World War II in Europe. Upon his return home, he attended college, then law school, before founding what is now the Moody Law Firm in Portsmouth, Virginia.

Moody turned his attention to politics after establishing his practice and was elected to the Virginia House of Delegates, serving there from 1956 to 1967, then in the Virginia Senate from 1968 until 1984. He never lost an election.

In addition to serving as a DLC, Moody donated to the UTU’s political action committee and later founded the Railroad Museum of Virginia in Portsmouth. His legal career culminated with his induction into the National Trial Lawyers Hall of Fame in April 2014.

Moody is survived by his wife of 71 years, Betty Covert Moody; daughter, Sharon Edwards, and her husband, Stephen; two sons, Willard “Will” Moody, Jr., who continues his father’s legacy as a current SMART TD DLC, and his wife, Courtney; and Paul Moody and his wife, Sarah; three sisters, Bertha Foster, Sue Bell and Mary Ellen Romanczyk; six grandchildren; six great-grandchildren; and a host of extended family and friends.

Visitation will be 3 to 5:30 p.m. March 31 at Sturtevant Funeral Home, Portsmouth Boulevard Chapel, 5201 Portsmouth Blvd., Portsmouth, VA 23701. A funeral service will be 11 a.m. Monday, April 1, 2019, at Green Acres Presbyterian Church, 3135 Hanley Ave., Portsmouth, VA 23703, by the Rev. Elizabeth Hilkerbaumer. Burial will follow in Greenlawn Memorial Gardens. Following the burial, a reception will take place at the home of Will and Courtney Moody, 4201 Manchester Road, Portsmouth, Virginia.

In lieu of flowers, memorial donations may be made to the Railroad Museum of Virginia.

Read the complete obituary or leave condolences at the funeral home’s website.

Consultation being offered for those targeted by CSX FMLA investigations

The office of Designated Legal Counsel Willard J. Moody, Esq., based in Portsmouth, Va., has extended an offer of service to SMART Transportation Division members who may have been unjustly fired for alleged Family Medical Leave Act (FMLA) violations.

Television station WNYT NewsChannel 13 out of Albany, N.Y., reported in early January that CSX was investigating more than 30 SMART TD members after they took FMLA days over the Christmas holiday.

FMLA, passed in 1993, protects workers’ jobs and allows for unpaid leave from work for medical or family reasons.

Moody said in an email that about 150 CSX employees were taken out of service and targeted for investigation for the alleged violations. Pending the results of the investigation, those workers could lose their jobs.

“We believe that CSX’s handling of these employees may violate federal law. Accordingly, we are contemplating legal action on behalf of these individuals,” Moody said.

Moody said his office is available for a free consultation for workers who have been pulled out of service and are being subjected to adverse action by CSX for alleged abuse of FMLA leave.

“There are limitations on how railroads may treat employees who they believe may have misused FMLA leave, and we believe CSX may have overstepped its legal rights in doing what it has done to employees who are currently out of service,” Moody said.

To contact Moody or Nick Thompson, an attorney with Moody’s firm with experience in FELA and FMLA cases, call 800-368-1033.

Former DLC David Kiker dies

Kiker

Retired UTU Designated Legal Counsel (DLC) David B. Kiker, 70, died Saturday, Sept. 2. An attorney for the law firm Rossi, Cox, Kiker & Inderwish in Aurora, Colo., Kiker served as DLC until his retirement in 2003.

Kiker is survived by his wife of 45 years, Pamela Seale; three natural children, John (Jennifer) Kiker, Chris (Kate) Kiker and Polly (Spencer) Gilligan; embraced children, Ashley (Roy) Sakker and Turner (Angela) Lang; mother, Dorothy Kiker; sister, Kelly (Keith) Beitler; sister, Emily Kiker; 11 grandchildren and many other family and friends. He was preceded in death by his father, George Kiker; birth mother, Shirley Kiker; grandmother, Alma Webb; and his aunt, Jane Webb.

Funeral services will be held Friday, Sept. 8, at 11 a.m. at the Littleton Church of Christ, 6495 South Colorado Blvd., Centennial, CO 80121.

In lieu of flowers, memorial contributions may be made to The Adoption Exchange, 14232 East Evans Ave., Aurora, CO 80014; The Barbara Davis Center for Childhood Diabetes, 1775 Aurora Ct., Aurora, CO 80045; or to any animal cause of your choice.

Click here to read Kiker’s full obituary or to leave condolences for the family.

SMART TD welcomes two new DLC lawyers to represent members

If you are injured on the job, you have powerful rights under the Federal Employers’ Liability Act (FELA). All of SMART TD’s Designated Legal Counsel (DLC) are chosen because they specialize in handling FELA claims and are experienced in dealing with railroad claim agents and railroad lawyers.

A SMART TD DLC is your agent, and their job is to represent you. They are on your side.

SMART Transportation Division has added two lawyers to our DLC teams: Michael C. Terranova and Andrew J. Thompson.

Terranova

Michael C. Terranova is the grandson of a Union City laborer and the son of a union sheet metal worker. He went to law school at the Chicago Kent College of Law where he focused on labor and employment law. While in law school, Terranova learned the ins and outs of the Railway Labor Act, National Labor Relations Act and FELA. He also worked for a law firm that was involved with collective bargaining agreements and helped injured union workers. Since being admitted to practice law, Terranova has focused his practice on representing injured union workers. He is a member of the Academy of Rail Labor Attorneys (ARLA) and currently works for the Cogan & Power, P.C. law firm in Chicago.

Members can contact Terranova by calling 312-477-2500 or via email at mterranova@coganpower.com.

To learn more about Terranova, visit www.coganpower.com.


Thompson

Andrew J. Thompson’s inspiration for advocating on behalf of railroad workers began generations ago, as his great-grandparents, grandparents and many extended family members worked on the railroad and were active in rail unions. He obtained a political science degree, followed by a law degree from Case Western Reserve University. He began working at the Chattman, Gaines & Stern, L.P.A., law firm where he learned the nuances of railroad law and sharpened his skills as a trial attorney. Thompson has successfully handled railroad cases in state and federal courts in Ohio, New Jersey, Pennsylvania, West Virginia, Florida and Illinois. He has experience handling union labor matters under FELA, the Federal Rail Safety Act (FRSA), Railway Labor Act and the National Labor Relations Act. Thompson also has experience with negotiating collective bargaining agreements, handling grievances before a Public Law Board, and arguing cases in arbitration.

Thompson regularly takes time to attend union meetings and other functions to speak to railroad employees about their legal rights. He is a member of the ARLA and practices law with the Shapero & Roloff Co., L.P.A. in Cleveland.

Members can contact Thompson by calling 216-781-1700, toll-free 800-321-9199; or via email at athompson@shaperoroloff.com.

To learn more about Thompson, visit www.shaperoroloff.com.

SMART TD names new DLC coordinator

Petru, AnthonyDLC

Petru

Designated Legal Counsel (DLC) Anthony Petru has been chosen as coordinator of the DLC Program. Petru replaces long-time DLC member and Coordinator Steve Young, who retired earlier this autumn.

Petru is a long-time DLC with years of experience in the rail industry. He graduated from University of California, Berkeley, and attended law school at the University of San Francisco. He joined the law firm of Hildebrand, McLeod & Nelson in 1980. Petru is a member of the American Trial Lawyers Association and the Academy of Rail Labor Attorneys.

“We appreciate Anthony’s willingness to serve as coordinator and look forward to working with him in his new position,” said Transportation Division President John Previsich.

Young, Steve

Young

Meanwhile, Previsich lauded Young’s service to our membership. “Steve’s contribution to the DLC program while serving as coordinator cannot be overstated, nor can his many other contributions to the union overall. Steve has been of great service to this union for over 40 years, beginning with holding office at the local and general committee level through his continued affiliation during his professional career. His contribution to the education and training of our members through his presentations at our regional meetings is legendary. Steve’s presence and leadership will be missed.”

Members can reach Petru by calling (800) 447-7500, visiting his website www.hmnlaw.com or by visiting our Designated Legal Counsel pages.

Former associate DLC John Naughton dies

John J. Naughton, former associate designated legal counsel of the Brotherhood of Railroad Trainmen and United Transportation Union, died Oct. 29, 2015.

Naughton fought for the rights of railroad and other transportation workers as an employee of the former firm of Henslee, Monek & Henslee. As a part of the firm, Naughton argued before the U.S. Supreme Court several times to secure the right of rail labor organizations to have DLC programs and inform the members of their rights under the various laws affecting rail labor.

Naughton is survived by daughter Nora Naughton; son Thomas (Tracey) Naughton; grandchildren Kevin, Margaret and John; sisters Mary Naughton and Dorothy Naughton and many others. He was preceded in death by his wife Vivian T. Moore and by his brother Tom Naughton.

Click here  to view Naughton’s obituary or to leave condolences.

OSHA putting teeth in rail whistle-blower law

For too many years, many railroads have tied managerial bonuses to low reportable injury rates among employees, creating a culture of fear through harassment and intimidation – a culture that discourages the reporting by workers of on-duty injuries and allows railroads to claim an industry safety award accompanied by glowing press releases as to its low employee-injury rate.

After collecting file drawers full of verified complaints from members of carrier harassment and intimidation following an on-duty injury, the UTU’s National Legislative Office was successful in shepherding through Congress the Federal Rail Safety Act of 2007.

It purpose is to protect rail workers from retaliation and threats of retaliation when they report injuries, 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 any safety related equipment.

An employer also is 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.

What was missing was tough enforcement of the law – but no more.

For the seventh time in recent months, the Department of Labor’s Occupational Safety and Health Administration (OSHA) has taken strong action against a railroad for violating the law – and fully protecting the whistle-blowing employees who suffered harassment and intimidation by the offending carrier.

In the latest OSHA action, Union Pacific was ordered in August to pay more than $600,000 in back wages, punitive damages, compensatory damages and legal fees to three employees for improper termination and suspension – all in retaliation for reporting workplace injuries, said OSHA.

Said OSHA: “Union Pacific Railroad has created a climate of fear instead of a climate of safety. The company must take immediate steps to change this unacceptable pattern of retaliation.”

One UP conductor working out of Kansas City, Mo., was terminated after making repeated complaints to the railroad’s hotline about fall and trip hazards, missing roadway signs, other safety issues and reporting that a supervisor had violated safety procedures during a field test, said OSHA. The conductor was also cited for having a tattoo the railroad deemed as creating a hostile work environment – a tattoo OSHA said commemorated his prior military service.

A second conductor, working out of Kansas City, was suspended without pay after making several complains about “rough spots on the track,” said OSHA.

And a UP engineer, working out of Tucson, Ariz., was improperly terminated after reporting a workplace injury, said OSHA in imposing the awards and fines.

Separately in August, OSHA ordered BNSF to pay a conductor $300,000 to cover back wages, attorney’s fees and damages for improperly suspending her after she reported an injury. According to OSHA, the conductor twisted a knee in a BNSF yard in Seattle.

Although BNSF officials followed her to the emergency room, according to OSHA, the railroad later accused her of failing to report the injury in a timely manner and suspended her for 30 days without pay. BNSF also assessed her points, alleging she needed additional knowledge, training or behavior focus, said OSHA, which called that action “disciplining an employee who reports a work-related personal injury.”

In other recent OSHA actions:

* Norfolk Southern was ordered to pay a former employee more than $122,000 in compensatory and punitive damages, plus attorney fees, for improper termination after the employee reported an on-duty injury. OSHA also issued a startling statement validating what many UTU members have long suspected – that Norfolk Southern’s culture of employee harassment and intimidation permitted the railroad to “maintain the appearance of an exemplary safety record and continue its 22-consecutive-year record as recipient of the E.H.Harriman Gold Medal Rail Safety Award.”

According to OSHA, the injury occurred in a NS yard in Jamestown, N.C., while the worker was removing spikes. Fearing loss of employment, the worker did not report the injury until a re-injury occurred. The employee was subsequently terminated.

* Metro North Commuter Railroad was ordered to promote a worker and pay him more than $130,000 in compensatory and punitive damages, plus legal fees, for improperly discriminating against him by classifying the injury as not work-related and denying him a promotion.

* A Wisconsin Central conductor was awarded more than $125,000 in compensatory and punitive damages, plus legal fees, following unlawful harassment and intimidation as the result of reporting an injury.

* Union Pacific was ordered to rehire a machinist it had fired following the reporting of a work-related injury.

* BNSF was ordered to rehire a conductor after being found guilty of improper retaliation after the conductor filed an injury report.

In all cases, OSHA ordered the railroads to provide training on whistle-blower rights to its managers, supervisors and employees, and to notify employees of their rights to be able to file complains without fear of retaliation under the Federal Rail Safety Act.

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://www.utu.org/, 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:

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

Conductor wins $125,000 in whistle-blower complaint

A Wisconsin Central conductor has won a whistle-blower complaint against the carrier – collecting more than $125,000 in compensatory and punitive damages – for unlawful harassment and intimidation as the result of reporting an injury.

This was the third successful whistle-blower complaint filed against a railroad in recent months for violation of a worker’s rights under the Federal Rail Safety Act of 2007.

In the most recent case, the Occupational Safety and Health Administration ordered Wisconsin Central to cease and desist in its practice of automatically issuing notices of investigation for employees who report work injuries.

OSHA also ordered the carrier to pay the conductor lost wages, plus interest; $100,000 in punitive damages for its reckless disregard for the law; and $25,000 in compensatory damages for mental pain and emotional distress due to the humiliation and loss of income from the wrongful suspension. OSHA also ordered Wisconsin Central to provide all employees with a fact sheet advising them of their rights for reporting work-related injuries and illnesses.

According to the conductor’s attorney, the conductor reported an on-the-job injury, as required by railroad rules. The railroad subsequently issued a notice ordering the conductor to attend a formal investigation to ascertain his responsibility for sustaining a personal injury and to determine if the conductor violated any railroad rules.

Although it was determined that the railroad had abandoned previous efforts to treat an ice covered service road that the conductor was required to use in the performance of duties – resulting in the injury – Wisconsin Central found the conductor guilty of violating several rules and issued a 10-day suspension. The railroad alleged that by sustaining an injury, the conductor had violated the railroad’s rules.

Earlier this year, OSHA required Union Pacific to rehire a machinist it had fired following the reporting of a work-related injury, finding UP had improperly retaliated against him.

And in December 2010, OSHA ordered a conductor employed by BNSF to be reinstated after finding BNSF guilty of improper retaliation after the conductor filed an injury report.

The Federal Rail Safety Act of 2007 protects rail workers from retaliation and threats of retaliation when they report injuries, 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 any safety related equipment.

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.

An employer also is 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.

This protection is known as “whistle-blower protection,” and the federal law is enforced by OSHA, as it was against Wisconsin Central, UP and BNSF.

Relief may include reinstatement with the same seniority and benefits, back pay with interest, compensatory damages (including witness and legal fees), and punitive damages as high as $250,000.

A rail employee may file the 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://www.utu.org/, 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:

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

 

Supreme Court declines to weaken FELA

WASHINGTON — In a 5-4 decision, the Supreme Court June 23 declined to tighten the standard of proof injured rail workers must demonstrate to win an award under the Federal Employers’ Liability Act (FELA).

The ruling is a significant victory for injured rail workers.

The FELA — a railroader’s most cherished workplace safety assurance — was passed by Congress more than a century ago to make railroads liable if an employee injury or death results “in whole or in part” from the negligence of any of its officers, agents or employees, or from any defect or insufficiency in equipment or roadbed.

At the time of the FELA’s passage in 1908, more than 4,000 railroaders were killed annually, and some 63,000 more suffered serious injuries each year.

The Supreme Court previously held that the FELA was “designed to put on the railroad industry some of the costs of the legs, arms, eyes, and lives which it consumed in its operation.”

The June 23 Supreme Court decision turned on a crossover vote by conservative Justice Clarence Thomas, who joined liberals Ruth Bader Ginsburg, Sandra Sotomayor, Elena Kagan and Stephen Bryer to rule against CSX and in favor of an injured CSX locomotive engineer.

The engineer had won a monetary award from a federal district court after being injured on the job in 2004 while operating a locomotive that the engineer contended was not suited for switching operations.

CSX twice unsuccessfully appealed the trial court’s decision – the first before the 7th Circuit Court of Appeals and the second appeal before the Supreme Court. CSX contended in both unsuccessful appeals that injured rail workers should meet a more demanding standard of proof as is required in all non-FELA personal injury cases, not, as the trial court instructed the jury, that CSX was responsible for negligence if its negligence “played a part – no matter how small – in bringing about the injury.”

CSX sought a ruling that the employer’s action must be the “primary cause” of the injury. In fact, the “in whole or in part” language comes from the FELA itself, and that legislative language clearly impressed the Supreme Court’s majority in this case.

Writing for the majority, Justice Ginsburg said: “Juries in such cases are properly instructed that a defendant railroad ‘caused or contributed to’ a railroad worker’s injury ‘if [the railroad’s] negligence played a part – no matter how small – in bringing about the injury.’ That, indeed, is the test Congress prescribed for proximate causation in FELA cases.”

Earlier Supreme Court cases upheld the right of unions to advise injured workers to obtain expert legal advice, and the right of unions to designate legal counsel possessing specialized knowledge in railroad operations and the FELA.

A listing of UTU Designated Legal Counsel is provided at www.utu.org by moving the cursor to “About UTU” in the red horizontal bar at the top of the home page and then clicking on “Designated Legal Counsel.” A listing of Designated Legal Counsel also may be obtained from local union officers or your general chairpersons.

If you are injured on the job, the FELA and your UTU Designated Legal Counsel are the best friends you and your family have. These successful trial lawyers are specialists in handling FELA claims, and are fully experienced in dealing with railroad claim agents and railroad lawyers.

And remember: Contributory negligence is not a bar to recovering under the FELA; and the FELA prohibits railroads from retaliating against employees who provide Designated Legal Counsel with factual information on injuries to fellow employees, or who testify in support of injured workers.

Each FELA lawsuit sends to the carriers a message about improving workplace safety that they cannot ignore

To read the June 23 Supreme Court decision, CSX Transportation, Inc. v. Robert McBride, click on the following link:

www.supremecourt.gov/opinions/10pdf/10-235.pdf

Transport-employee fatigue continues to kill

While sleep scientists have established that going to work fatigued is like going to work drunk, there remains a disconnect among those who manage transportation firms. And people are needlessly dying and being seriously injured as a result.

Transportation Secretary Ray LaHood June 1 criticized his own Federal Motor Carrier Safety Administration for not sooner putting a North Carolina bus operator — allegedly with a history of safety problems, including forcing drivers to work without sufficient rest — out of business sooner.

When the FMCSA finally got around to taking that shutdown action against the bus company May 31, four more lives were lost and 54 more passengers were injured.

The cause of that rollover bus accident near Richmond, Va., May 27 was driver fatigue, according to Virginia State Police, who jailed the bus operator for reckless driving. Seven times since October 2009, the bus company — Sky Express of Charlotte, N.C. — had been cited by the FMCSA for violating federal hours-of-service regulations requiring adequate rest for drivers, according to USA Today.

“I’m extremely disappointed that this carrier was allowed to continue operating unsafely when it should have been placed out of service,” LaHood told USA Today.

Sky Express received an “unsatisfactory” safety rating in April from the FMCSA, according to USA Today, but the FMCSA extended its investigation to, according to an FMCSA spokesperson, “make sure we had an airtight case to shut the company down.”

LaHood told USA Today, “There is no excuse for delay when a bus operator should be put out of service for safety’s sake. On my watch, there will never be another extension granted to a carrier we believe is unsafe.”

The FMCSA said Sky Express had numerous violations for keeping fatigued drivers behind the wheel and failing to ensure its drivers were properly licensed, had proper medical certificates, and could read road signs in English.

The National Transportation Safety Board blamed driver fatigue for a 2008 bus crash in Utah that killed nine, and a 2004 crash in Arkansas that killed 14. A fatal bus crash near New York City March 12, which killed 15, is under investigation. The company operating the bus was cited five times in fewer than two years for allowing fatigued drivers behind the wheel.

UTU members should note that federal law protects aviation, bus and rail workers from retaliation and threats of retaliation when they report that a carrier violated federal hours-of-service regulations.

Whistle-blower complaints may be filed directly with the Occupational Safety and Health Administration (OSHA), or you may contact a UTU designated legal counsel, your general chairperson or your state legislative director for assistance.

To view a more detailed OSHA fact sheet on whistle-blower protection, click on the following link:

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

Proving negligence under FELA

FELA Update
By Mark Allen
Coordinator of UTU Designated Legal Counsel

The Federal Employers’ Liability Act (FELA) was enacted by Congress in 1908 to give railroad employees the right, under federal law, to recover damages from their employers for injuries occurring at work.

However, generally, there must be proof of negligence on the part of the railroad that caused or contributed to the employee’s injury. Simply put, this means that the railroad must exercise reasonable care for the safety of its employees. The railroad must provide its employees with a reasonably safe place to work. Its failure to do so is negligence.

The duty to provide a safe place to work includes the furnishing of safe tools and equipment, the selection of proper methods to do the work, the furnishing of sufficient help, and the adoption and enforcement of proper procedures. The railroad may also be negligent if it fails to adopt and enforce safety rules and practices, or by allowing unsafe practices to exist. The fact that unsafe practices and customs are standard in the industry is no defense.

An exception to the requirement for proof of negligence under FELA exists when an injury occurs because the railroad has violated either the Safety Appliance Act or the Locomotive Inspection Act.

The Safety Appliance Act relates to railroad cars and their safety devices and requires devices such as couplers, power brakes, grab irons, etc., to be free from defects. The Locomotive Inspection Act requires that the railroad keep its locomotives and tenders in proper and safe condition.

If the violation of either one of these laws causes injury to an employee, proof of negligence is not required and the railroad is strictly held at fault.

When you have a question about whether an action of the railroad was negligent that caused you injury or whether proof of negligence is required, contact a UTU Designated Legal Counsel. Go to www.utu.org and click on “Designated Legal Counsel” on the left side of the page; or ask your local union officers for the list.