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  • Harassment at work for posting at YardLimits

    This has been an issue before, and sometimes happens occasionally. Any advice for members that seem to be getting harassed at work for posting here at YardLimits?

  • #2
    Post At Will

    "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." First Amendment U.S. Constitution

    The above First Amendment applied only to the United States Congress making laws. In the in the 20th century, the Supreme Court held that the Due Process Clause of the Fourteenth Am. U.S. Constitution applied the limitations of the First Amendment to the states and to local governments.

    Before I go on, I want to say that I am not a labor lawyer and I am not familiar with all the specific languages in the Collective Bargaining agreements, Union agreements or the Railroad Labor Act [RLA] with the companies, so if there is something on point which talks to the rights, if any, on the part of the railroads to chill the right of free expression (be it live or on a web site), I would gladly ask that they post it here as I would like to know what it is. However, Congress, empowered through the Commerce Clause of the Article 1, Section 8, Clause 3 of the United States Constitution, has spoken to certain types of harassment from the railroads to the workers in the exercise of free speech. Specifically, they enacted 45 U.S.C. Section 60 which states,in pertinent part, as follows:


    Title 45. Railroads
    Chapter 2.
    Liability for Injuries to Employees

    60. Penalty for suppression of voluntary information incident to accidents; separability

    "Any .....device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisoned for not more than one year, or by both such fine and imprisonment, for each offense....
    "
    [A full annotated copy of Section 60 is attached hereto in Word].

    Hence, if someone is injured, you can help your brother and give a statement without fear of reprisal. I realize this is not directly addressing your question but it demonstrates Congress' power to regulate the actions of the railroad on speech issues even though they are not a governmental unit.

    Recently the FRA, ruled that it is deemed intimidation and harassment to accompany an injured railroad worker actually into the where the doctor sees the injured railroad worker/patient. Note that ruling was just within the last 2 months!!! I think it is a sign of times to come with the Obama administration being supportive of the worker's rights rather than just the rights of the employer as we lived through in the Reagan, Bush I [Clinton but with a Republican Congress] and Bush II years.

    There is also an interesting site with an abundance of freedom of speech vs. harassment in the workplace discussion at: FREEDOM OF SPEECH VS . Also visit: Harassment Law and Free Speech Doctrine. Granted most of the discussion is about governmental harassment but it still makes for interesting reading.

    As I said, I am not a labor lawyer, and this may be off point, but the famous case styled NLRB v. Gissel Packing Company, 395 U.S. 595 (1969) dealt mainly with attempts to unionize. However, looking at the opinion's summary on a web site it said:

    "4. An employer's free speech right to communicate with his employees is firmly established, and cannot be infringed by a union or by the NLRB, and 8(c) merely implements the First Amendment by requiring that the expression of "any views, argument or opinion" shall not be "evidence of an unfair labor practice," so long as such expression contains "no threat of reprisal or force or promise of benefit" in violation of 8(a)(1). Pp. 395 U.S. 616-620.
    (a) An assessment of the precise scope of employer expression must be made in the context of its labor relations setting, and an employer's rights cannot outweigh the equal rights of the employees to associate freely, as those rights are embodied and protected in the Act. Pp. 395 U.S. 617-618.
    (b) An employer may communicate to his employees any of his general views on unionism and his specific views about a particular union, as long as there is no "threat of reprisal or force or promise of benefit." He may predict the precise effects he
    Page 395 U. S. 578
    believes unionization will have on his company if the prediction is based on objective fact to convey his belief as to demonstrably probable consequences beyond his control or to convey a management decision already arrived at to close the plant in case of unionization. Pp. 395 U.S. 618-619.
    (c) In No. 585, the NLRB correctly found that the communications were cast as threat of retaliatory action, and not as a prediction of "demonstrable economic consequences." P. 395 U.S. 619."

    Hence, in Gissel, and in the context of supporting freedom of speech in regard to unionization, the Supreme Court said there can be no fear of reprisal. However, also see NLRB v. Local Union No. 3, 828 F. 2d 936 (2nd Cir. 1987), which held a "threat to strike" was not protected free speech on the part of the employees.

    AGAIN, I am not a labor lawyer, just a FELA lawyer, so many of these questions are outside of my baileywick, but it seems to me that, with regard to exercise of free speech on Yardlimits.com, that ANY reprisal, or threat of reprisal for posting, would not be permissible.

    The question is would it be actionable? That is, could someone bring an action to stop or seek an order to have the railroad cease and desist its conduct? I guess the answer would be controlled by what the railroad actually does that would be deemed harassment.

    Finally, I apologize if my answer is a bit vague or not exact, however, I would like to know exactly what the harassment has been for posting on Yardlimits??? If it is constant and significant, our firm would like to take a stab at, perhaps in conjunction with a labor lawyer, suing the railroad to, at bare minimums, seek a TRO stopping the behavior.

    Steve Gordon
    FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident
    Attached Files
    Steve Gordon
    Gordon, Elias & Seely, L.L.P.
    FELA Lawyer
    FELA Lawyer Blog
    Serving Injured Railroad Employees Nationwide
    Call for a FELA Lawyer 24/7/365
    800-773-6770

    Comment


    • #3
      Originally posted by Northern View Post
      This has been an issue before, and sometimes happens occasionally. Any advice for members that seem to be getting harassed at work for posting here at YardLimits?
      The one organization which has a lot of experience and knowledge about this sort of problem is the Association for Union Democracy (AUD). You will find a lot of info on their website. A membership is cheap and informative!

      Association for Union Democracy
      The first step toward the solution to any problem is optimism.

      Comment


      • #4
        Originally posted by FELA FELLA View Post
        "[B]
        Finally, I apologize if my answer is a bit vague or not exact, however, I would like to know exactly what the harassment has been for posting on Yardlimits??? If it is constant and significant, our firm would like to take a stab at, perhaps in conjunction with a labor lawyer, suing the railroad to, at bare minimums, seek a TRO stopping the behavior.

        Steve Gordon
        FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident
        Thank you Steve. This is an issue that has arrived from time to time. I suppose if anyone has an issue, my advice would be to document any harassment and anything said by the individual, and more importantly, anything they have said in conjunction with YardLimits and any posts you have made. Steve Gordon has made it very clear that he has a open door policy and can be contacted by phone, PM's and email. I wouldn't hesitate to contact him and talk it over, giving him the specific facts about the harassment you are receiving and it might be beneficial to provide any posts, that you have made, that the individual that is harassing you about, if it's known.
        Railroad managers have been disciplined for harassing employees about posts they have made in the past. This may not always be the case, but it has happened. Remember what you post on here is open for everyone to read. Make sure that your posts are truthful and don't violate the carriers rules on divulging important company business. I'm sure we all know the difference. It will make the job of a attorney representing you for harassment, if it does occur, much easier.

        Northern

        Comment


        • #5
          Steve,

          I work for Norfolk Southern and have a question.

          They recently started having a "Safety Quality" class that everyone is required to attend. The class is broke down into modules or sections. One of those sections is titled "Injured at Work". When this module begins, there is a notice that comes up on the screen. I can't recall the exact wording but basically it states that if you were injured at work and currently have a lawsuit against Norfolk Southern that you need to leave the room at this time due to the fact that the law doesn't allow for any correspondence between the Carrier (claims agent) and injured employee. That has to take place between the attorney and the Carrier or something similar to that. Again, I cannot remember the exact wording. The module continues to tell you how the claims agents are there for you and they have two supposed injured employees that dealt with the claims agents and was happy with the results. FELA lawyers are bad; claims agents are good kinda stuff. Made you want to stick your finger down your throat type thing. Then they actually brought claims agents into the room to speak to the employees.

          My question is this; how can the Carrier make a person leave the room and expose the fact that this person has a suit against the Carrier to everyone in the room. Is this not a form of harassment and intimidation?

          Your thoughts on this?

          Thanks,

          Hornblower
          "Never argue with an idiot; people watching might not be able to tell the difference".

          Posts by Hornblower are merely opinions of Hornblower and are for entertainment only. Hornblower does not represent any railroad anywhere. Feel free to pass over any post that offends you.

          Comment


          • #6
            Would they even let you be marked up if you had a suit related to injury? And if they require you to do this "class" to stay qualified, then can sending you out of the room make you so you have not finished the "class." The whole thing sounds like a sham to me.
            sigpic ΜΟΛΩΝ ΛΑΒΕ "Come and get them" Leonidas I to Xerxes, at Battle of Thermopylae

            Comment


            • #7
              As we all (I suppose) use aliases on here, the proof is on the carrier to point at you and accuse you of posting here. Should they do so, say, "nope, that's not me." They dig further at their peril I am sure.
              sigpic ΜΟΛΩΝ ΛΑΒΕ "Come and get them" Leonidas I to Xerxes, at Battle of Thermopylae

              Comment


              • #8
                What Will They Think of Next!

                Dear Hornblower-

                This one takes the cake! If you can get me the name and the address of the person in charge if this propaganda program, I would like to write them a letter to determine wht they specifically say. In my opinion, they are committing barratry, if they are advising you that you are better off without making a claim.

                No one that is not a lawyer should advise you what your best legal course of action is unless they are a licensed lawyer.

                Steve Gordon
                (a licensed lawyer!)
                FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident
                Steve Gordon
                Gordon, Elias & Seely, L.L.P.
                FELA Lawyer
                FELA Lawyer Blog
                Serving Injured Railroad Employees Nationwide
                Call for a FELA Lawyer 24/7/365
                800-773-6770

                Comment


                • #9
                  Barratry. I like that word as I have never heard it before. Could you explain that Steve?
                  sigpic"The fact that we are here today to debate raising America 's debt limit is a sign of leadership failure. It is a sign that the US Government cannot pay its own bills. It is a sign that we now depend on ongoing financial assistance from foreign countries to finance our Government's reckless fiscal policies. Increasing America 's debt weakens us domestically and internationally. Leadership means that, "the buck stops here.' Instead, Washington is shifting the burden of bad choices today onto the backs of our children and grandchildren. America has a debt problem and a failure of leadership. Americans deserve better."
                  ~ Senator Barack H. Obama, March 2006

                  Comment


                  • #10
                    Originally posted by FELA FELLA View Post
                    Dear Hornblower-

                    This one takes the cake! If you can get me the name and the address of the person in charge if this propaganda program, I would like to write them a letter to determine wht they specifically say. In my opinion, they are committing barratry, if they are advising you that you are better off without making a claim.

                    No one that is not a lawyer should advise you what your best legal course of action is unless they are a licensed lawyer.

                    Steve Gordon
                    (a licensed lawyer!)
                    FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident
                    Wick Moorman- CEO Norfolk Southern

                    This a required class that every T & E employee will be required to attend. It just started here this week. If you've had any dealings with NS, this shouldn't surprise you. Give me a couple of days and I might be able to give you some more specifics. In the meantime I am forwarding this on to my State Director for handling. When an injured employee is REQUIRED to attend a company function and then is ask to leave in front of his co-workers because he chose to hire a lawyer that federal law entitles him to do; isn't that harassment?

                    HB
                    "Never argue with an idiot; people watching might not be able to tell the difference".

                    Posts by Hornblower are merely opinions of Hornblower and are for entertainment only. Hornblower does not represent any railroad anywhere. Feel free to pass over any post that offends you.

                    Comment


                    • #11
                      Harassment is a very broad term. Do I think it is harassing to "expose" someone that has a lawyer? Yes. What if, for example, the worker has a lawsuit? Well, that is public record and it would be hard to complain about that even though it is bothersome. What if they have a lawyer but there is no lawsuit filed? That is a little different. I do not like using the term "harassment" because, generally, there is no legal cause of action for harassment. There are, of course, legal claims for certain hings like sexual harassment and there are discriminatory legal actions like gender, age, race, etc.

                      So, in your example it is harassing but I am looking at it with an eye towards: If we sued them....then what would be the legal cause of action? Harassment? I do not think so. I think it would sound more in "Invasion of Privacy". The elements of a tort of "Invasion of Privacy" are:
                      Invasion of Privacy: There are actually four causes of action that comprise the invasion of privacy tort. They are (a) intrusion upon seclusion, (b) appropriation of name or likeness, (c) public disclosure of private facts, and (d) placing plaintiff in a false light.

                      For our situation of making the person stand up and leave, I think the two at issue are:
                      a. Intrusion upon Seclusion: To state a claim for intrusion upon seclusion, the complaint must allege an (1) intentional intrusion, physical or otherwise, (2) upon the plaintiff's solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person.

                      and/or

                      c. Public Disclosure of Private Facts: The tort of public disclosure of private facts as follows: (1) the facts disclosed are private facts; (2) the defendant disclosed them to the public generally or to a large number of persons; and (3) the disclosure was in a form of publicity of a highly objectionable kind.

                      So, I think there may be a cause of action in either or both of the two above.

                      BARRATRY
                      Barratry has two types of definitions. The first we all have heard about and those are what is typically called "ambulance chasing". However, the other is where the person renders legal advice without a license to practice law. We see these situations occur in medical clinics where they get the patient in and actually submit a sort of settlement package to the insurance company and in essence negotiate a settlement with the automobile insurance company without a license to practice law. lso, in law offices where they handle small "fender-benders" the secretary negotiates a settlement for the client. If it is not done under the direction of a licensed lawyer it is a crime.

                      In our situation, though I do not have the specific facts, it seems that you are saying that they are saying, "Look, you will do better if you do not hire a lawyer bur, instead, deal with our claims agents." I personally think that is legal advice. Now, in most Barratry criminal statutes there has to be a holding out that the person is a lawyer, i.e., a deception. For example, I have selected the Alabama Barratry statute as an example since NS is prevalent there, it states:
                      Section 34-3-1 - Unlawful practice of law.

                      If any person shall, without having become duly licensed to practice......practice or assume to act or hold himself out to the public as a person qualified to practice or carry on the calling of a lawyer, he shall be guilty of a misdemeanor and fined not to exceed $500.00, or be imprisoned for a period not to exceed six months, or both.

                      (Acts 1923, No. 133, p. 100; Code 1923, 3318; Acts 1931, No. 241, p. 284; Code 1940, T. 46, 31.)

                      Hence, I would argue that when they "advise" you like they do, they are, in essence, practicing law. Do I think a prosecutor would take on the NS? No I do not. But do I think this practice needs to stop? Yes

                      I hope that clarifies my previous response. If you can find out more particulars, I would like to explore the possibilities of getting this stopped. I have some good friends in Alabama & Georgia (I assume this is some of the locations wherein this is taking place) where something might be able to be done.

                      One issue would be that to move for an injunction, G&E might need a client. Not a FELA client but a client that is subjected to this. Otherwise, we might get tossed out for not having someone that has been [or will be] injured from the process.

                      Steve
                      http://www.gordon-elias.com/CM/FELA/...A-Overview.asp
                      Steve Gordon
                      Gordon, Elias & Seely, L.L.P.
                      FELA Lawyer
                      FELA Lawyer Blog
                      Serving Injured Railroad Employees Nationwide
                      Call for a FELA Lawyer 24/7/365
                      800-773-6770

                      Comment


                      • #12
                        What if the "module" were prepared by the NS legal dept? Would that still constitute barraty, or would this be unethical in the legal sense(i.e. giving unsolicited legal advice/opinion to employees-)?

                        Comment


                        • #13
                          Originally posted by Excon421 View Post
                          What if the "module" were prepared by the NS legal dept? Would that still constitute barraty, or would this be unethical in the legal sense(i.e. giving unsolicited legal advice/opinion to employees-)?
                          No- I do not think that would be Barratry and no I do not think it would be unethical. Unfortunately, the only time it is "unethical" in most states to give "Unrequested"/"Unsolicited" legal advice is if it is done by a personal injury lawyer with the intent to be employed. Generally, the only time it is permitted to directly "solicit" a personal injury case is if it is done by mail and after 30 days after the accident. These rules vary greatly from state to state.

                          I use the word "unfortunately" because, for instance in aircraft accidents and accidents like the recent Metro-Link accident, there are Company lawyers swarming the accident scene right after such an event but the contact by a personal injury lawyer to get hired may even amount to a crime in some states. I do believe that persons who are victims in tragedies should have the chance to see lawyers that are generally motivated in protecting their rights than the rights of the companies. But, alas, want in one hand and _ _ _ _ in the other and see which one fills up first seems appropriate here.


                          So, in conclusion, though I think the behavior is reprehensible, I do not think it is actionable under the facts you give. I would like to reserve the right to amend this answer if I could get my hands on an actual tape of the "lecture" to see specifically what was said.


                          Steve Gordon
                          FELA Claim Lawyer | Railroad Employee Injury Attorney | Railroad Worker Injury | Train Accident


                          ps- I like the name Excon421....why did you pick it if I may ask?
                          Steve Gordon
                          Gordon, Elias & Seely, L.L.P.
                          FELA Lawyer
                          FELA Lawyer Blog
                          Serving Injured Railroad Employees Nationwide
                          Call for a FELA Lawyer 24/7/365
                          800-773-6770

                          Comment


                          • #14
                            Wasn't it false and defamation to say that "Railroad Employees are wined and dined, by Union Lawyers, sponsoring Union Luncheons etc..." That was said in the film I happen to know that was said. And not providing information about recorded statements and all the things that put our members FELA claim at risk, and therefore sacrifice there welfare. It is a one sided story, just like always on NS. Letters or some sort of reaction from Legal Counsel needs to be put out to NS, this is going to effect young members. Not so much worried about our local, but take a local with young leadership and there is going to be some raw deals.

                            Comment


                            • #15
                              The tape is out there, whether or not there will be action by legal counsel well I DON'T KNOW? There had be some action to the members in the form of mailers, emails, more advertisement. The NS has went direct we at the locals can only get so many people in the doors of the union halls, and only have so many resources, we have to go mainstream and when I SAY WE I MEAN ORGANIZATIONS AND ITS LEGAL COUNSEL, OUR MEMBERSHIP IS AT RISK HERE. The legal action can take backburner as far as I'm concerned we have to get the truth to everyone and NOW.

                              TPG

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