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Commerce Commission judge proposes to fine Norfolk Southern $10,000, order immediate installation of temporary trailer, new permanent shelter by May 31 at 55th Street Yard
[01/10/2005]

CHICAGO (Jan. 10)—A stern administrative law judge today issued a Proposed Order that would fine the Norfolk Southern Railway $10,000 for repeatedly failing to remedy its filthy and dilapidated 55th Street crew facility in Chicago and said that additional fines and criminal penalties could be assessed if the carrier defaults on a strict timetable she laid down for the building’s replacement.

Illinois Commerce Commission Judge Bernadette Cole also left the door open for additional fines as high as $1,000 per day if Norfolk Southern fails to comply with her order for the carrier to open a temporary trailer shelter within 14 days, to complete its new permanent shelter building by May 31 and to bring the old building into full compliance and keep it clean and functional until the trailer is installed.

The Proposed Order is now open for comments by the parties and will then be forwarded to the full Commission for final disposition, and an official starting of the time clock, sometime in February.

“These violations are as longstanding as they are numerous and disgusting,” Judge Cole wrote in a 21-page Proposed Order citing the carrier’s failure to remedy 19 separate violations of the Illinois Administrative Code. The violations were first brought to the Commission’s attention by the UTU in early 2002.

“The Respondent Railroad has allowed these violations to continue, despite multiple Commission Staff inspections and requests for correction spanning more than two years,” the judge said.

She noted that Commission inspections began May 30, 2002, when representatives made a joint inspection of the troubled facility.

But despite inspectors’ findings of dirty and non-functioning toilets, unscreened windows, inadequate and non-functional lockers, no hot water, lack of locker-room furniture, cracks in the masonry that admitted the elements and even a tree growing out of a cracked locker-room floor, the railroad had addressed almost none of the 19 violations written up by Commission inspectors.

After more than a year of inaction by NS, the judge noted, the UTU Illinois Legislative Board filed a Formal Complaint asking the Commission to order NS to remedy the defects. UTU invited BLE to participate in the Complaint and share in its legal costs, but BLE officials declined.

“Not only did the Railroad fail to address these issues, it prohibited its employees and the Complainant Union from taking photographs of the violations,” Judge Cole wrote. “The civil penalties we impose and the level of monitoring we prescribe of the Railroad’s compliance with this order are a function of its lengthy failure to address these violations and its efforts to prevent its employees and the Union from documenting these violations.”

Judge Cole then ordered NS to “immediately provide its employees temporary trailer shelter facilities that meet the requirements of Title 92 of the Illinois Administrative Code Part 1545. The Railroad should be assessed a civil penalty of one thousand dollars, commencing fourteen days after the date of this order, for each day the temporary trailer facilities are not provided.”

Judge Cole also laid out a detailed series of rules Norfolk Southern must follow to keep the Commission and the Union apprised of its progress in constructing the new shelter. She ordered the carrier to post copies of her Order “in a prominent location in the existing shelter facility” as well as in the temporary trailer so that employees will be fully informed of the railroad’s obligations. She authorized the UTU, Commission Staff and NS employees who use the facility to photograph or videotape violations at the facility at any time. And she ordered the railroad to have its new shelter finished, inspected, licensed by the City of Chicago and open for occupancy by May 31.

“Judge Cole’s instructions, orders and admonitions to Norfolk Southern regarding the 55th Street crew shelter are among the strongest and most detailed rebukes to a carrier that I have seen in my entire career as a union officer,” said UTU Illinois Legislative Director Joseph C. Szabo.

“It is clear from the severity of her order that this judge will tolerate no further nonsense from NS management,” Szabo said. “At two points in her Order she actually used the term 'bad faith' to characterize the railroad’s continual foot-dragging."

One evidence of Judge Cole’s suspicions, Szabo said, was a series of rules she imposed to make sure Norfolk Southern does not further delay the opening of the new permanent facility or the installation of the temporary trailer.

“If construction is delayed because a supplier cannot furnish materials as scheduled or a contractor cannot meet the construction timetable, the railroad will have to provide the judge with a verified petition for an extension,” Szabo said.

“Not only that, the railroad will have to provide her with the name, title, mailing address, phone number, fax number and e-mail address of the relevant representative of each supplier or contractor that is unable to make its deadline for the project. If the railroad fails to share this information, it will not receive its extension and will be fined $1,000 for every day beyond deadline that either the replacement trailer or the new building fails to be open.

“It’s almost as if she’s become the project manager,” Szabo said. “Essentially, Norfolk Southern is now reporting to the Commission. Judge Cole is going to track their progress until they open the new building, and she has reserved the right to fine them again and maybe even put a Norfolk Southern manager in jail if there is any further delay in resolving this issue.

“Her order overlooks not a single detail,” Szabo said. “It even spells out the address in Springfield where they’re supposed to send the $10,000 check and gives them 30 days to pay it. If their check doesn’t reach the commission on time, she can fine them for late payment the same way she can fine them for failing to finish the new shelter on time-- $1,000 a day.”

Szabo cautioned that at this time it is only a Proposed Order, subject to comments from the parties and final disposition by the full Commission.

“However, it is very unusual for the Commission to make any significant changes to a Judge’s Order,” Szabo said. “We should know more by the end of February.”

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