February 18, 2004
CHICAGO (Feb. 12)—UTU Illinois Legislative Director Joseph C. Szabo today charged the Norfolk Southern Railway with fostering an ongoing “Culture of Concealment” after the carrier attempted to suppress details of a fatal accident set forth in briefs the union had submitted to an administrative law judge.
Illinois Commerce Commission Judge June Tate is considering a walkway-safety rule proposed by the UTU and three of the four U.S. Class I rail carriers. Only NS and Canadian National oppose it.
Szabo issued his charge as his office filed a response requesting that Judge Tate reject an effort by Norfolk Southern to keep the recent death of a Kankakee switchman out of the Commission’s deliberations on a walkway-safety rulemaking.
In recent days, NS and CN filed briefs requesting that Judge Tate strike three documents from the record in the walkway-safety case.
Those documents include a recommendation by the ICC professional rail staff supporting the walkway standard, a sworn affidavit by UTU #1003 Local Chairman Aaron Combs reaffirming the hazardous walkway conditions where NS switchman Stephen Hall was killed January 14, and UTU’s request to subpoena photos that Brother Combs took to document the conditions. The photos had been seized from Brother Combs by a Norfolk Southern supervisor.
NS asked that the documents be stricken from the record as “irrelevant.”
In the UTU brief, attorney Larry Mann asked Judge Tate to reject the efforts of NS and CN to hide pertinent evidence.
“The latest action seems to be part of an ongoing pattern by NS of hiding facts and manipulating the truth,” Szabo said.
“The sheer persistence of NS’s legal campaign seems to suggest an ongoing pattern of manipulating information and employees alike in order to artificially pump up its safety record and avoid implementation of an agreed-to rulemaking,” Szabo said. “Rather than spend resources on expensive legal fees trying to manipulate the system, wouldn’t it make more sense for NS to do the right thing and prevent the injuries up front?”
The core argument of NS’s latest brief was that Combs’ affidavit about Hall’s death–as well as the photos he took of the death site–both amount to “irrelevant or immaterial matters” under the Illinois Administrative Code. The Code says a judge need not consider such material in a rulemaking.
The carrier’s Chicago attorneys, Sidley Austin Brown & Wood LLP claimed the affidavit and film were inadmissible because they occurred after Judge Tate had concluded hearing evidence relating to UTU’s proposal for a walkway-safety rule.
Mann countered that the passage of time does not disqualify the affidavit or the film from admission as evidence because the Administrative Code is subject to the same rules of evidence as the state’s Circuit Courts, which permit the late introduction of evidence if it is “newly discovered.”
Mann said the affidavit and film qualify as “newly discovered” because they could not have existed prior to Hall’s death, which occurred after Judge Tate’s deliberations had closed.
“We submit to ignore this evidence would be fundamentally unfair,” he wrote.
Mann also dismissed Norfolk Southern’s allegation that the film and affidavit are “obviously irrelevant” to the Commission’s deliberations on a new walkway-safety rule.
“We submit that nothing could be more relevant than showing the condition of a walkway which contributed to the death of an employee, particularly as here, where the railroad previously was put on notice of the hazard,” he wrote.
“Clearly, Norfolk Southern would like to see Aaron’s affidavit and film, and indeed all mention of Steve Hall’s tragic death, stricken from the record,” Szabo said. “And it’s easy to understand why: The truth can hurt.”
Szabo said that while NS is within its legal rights in filing a brief to suppress documents injurious to its argument, its decision to do so “seems only to confirm what NS employees have claimed for years–NS management deliberately takes steps to doctor their FRA accident and injury statistics.
“What a shame,” Szabo said. “Doesn’t it make more sense to partner with the UTU and the other U.S. Class I railroads on walkway safety and prevent this type of accident from occurring?”
