# Woman suing over Empire Builder rape case



## lthanlon (Nov 27, 2017)

From Great Falls Tribune — "A North Carolina woman is suing Amtrak after she was violently raped on the passenger train by an employee as it passed by Wolf Point in 2015, alleging the carrier had the responsibility to protect her from employees such as her assailant, who had a long and 'egregious disciplinary record.'" Read full story.


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## the_traveler (Nov 27, 2017)

> ... boarded the Empire Builder train in Washington, DC ...


???? The EB does not go to WAS!


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## lthanlon (Nov 27, 2017)

the_traveler said:


> > ... boarded the Empire Builder train in Washington, DC ...
> 
> 
> ???? The EB does not go to WAS!


Copy editors on vacation. Story probably meant she began her journey in Washington, D.C.


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## AmtrakBlue (Nov 27, 2017)

“boarded the Empire Builder train in Washington, D.C. headed west. “

Great reporting again by the media.

Sent from my iPhone using Amtrak Forum


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## lthanlon (Nov 27, 2017)

AmtrakBlue said:


> “boarded the Empire Builder train in Washington, D.C. headed west. “
> 
> Great reporting again by the media.


Could have been worse. At least the reporter didn't have the conductor "driving the train."


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## GBNorman (Nov 27, 2017)

This incident will cost Amtrak "heap big wampum" - and it should!

By now, Amtrak knows, or at least should, that they must be extra vigilant in the hiring process, and that the background check complete before one is ever hired - especially for public contact work. Even the Union, the ASWC, had to know this guy was "trouble", but they knew that if they did not defend him through all levels of the discipline and appeals process under the Agreement and the Railway Labor Act, he would turn around and seek damages under the "failure to represent" provisions of the Landrum-Griffin Act.

But who are the real losers - the vast majority of Amtrak employees who do their jobs courteously and efficiently - and all the time putting up with "crap" too voluminous to discuss here.


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## crescent-zephyr (Nov 27, 2017)

No words. She should get every penny she asks for.


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## Bob Dylan (Nov 27, 2017)

Union or no Union,why isnt this cretin in Jail? And where were the other Crew Members and other passengers on the train during this attack?


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## BCL (Nov 27, 2017)

Bob Dylan said:


> Union or no Union,why isnt this cretin in Jail? And where were the other Crew Members and other passengers on the train during this attack?


The article says that he was sentenced to 60 years in prison.

https://app.mt.gov/conweb/Offender/3020134/636474053603598076/11918cf583a208100522fdfac6b2675fd8352559

DOC ID# 3020134

NAME: Charles Henry Pinner

CURRENT STATUS: INMATE

LAST STATUS CHANGE: Tuesday, August 15, 2017

GENDER: Male

INFORMATION CURRENT AS OF: Monday, November 27, 2017

PRISON:

CROSSROADS CORRECTIONAL CENTER

50 Crossroads Drive

SHELBY, MT 59474

(406) 434-7055


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## zephyr17 (Nov 27, 2017)

Bob Dylan said:


> Union or no Union,why isnt this cretin in Jail? And where were the other Crew Members and other passengers on the train during this attack?


Um, he is. Did you read the article?


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## Steve4031 (Nov 27, 2017)

Its shocking that this could happen. It is possible. Assume the guy got in there and closed and locked the door and the bed was down. If he prevents or scares her into silence then it's possible.

Don't know how full that car was. The crew would have to be passing through at exactly the right time. This guy definitely monitored husband surroundings.

Sent from my iPhone using Amtrak Forum


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## Bob Dylan (Nov 27, 2017)

zephyr17 said:


> Bob Dylan said:
> 
> 
> > Union or no Union,why isnt this cretin in Jail? And where were the other Crew Members and other passengers on the train during this attack?
> ...


Sorry,couldn't get the Link to open! Hope this Turd doesn't ever see the Sun again, and the Woman receives a Nice Check and received a Sincere Apogy from Amtrak.


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## AmtrakBlue (Nov 27, 2017)

Steve4031 said:


> Its shocking that this could happen. It is possible. Assume the guy got in there and closed and locked the door and the bed was down. If he prevents or scares her into silence then it's possible.
> 
> Don't know how full that car was. The crew would have to be passing through at exactly the right time. *This guy definitely monitored husband surroundings.*
> 
> Sent from my iPhone using Amtrak Forum


Not sure what exactly you meant by the bolded part, but if you mean as to whether her husband was nearby, no, she was traveling with her sisters. Though I did not read the whole article, I presume her husband (if she had one and he's alive) was not traveling with her.


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## BCL (Nov 27, 2017)

AmtrakBlue said:


> Steve4031 said:
> 
> 
> > Its shocking that this could happen. It is possible. Assume the guy got in there and closed and locked the door and the bed was down. If he prevents or scares her into silence then it's possible.
> ...


Looks to be autocorrect coming up with something unintended. If I were to guess it would have been "definitely monitored his immediate surroundings".


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## crescent-zephyr (Nov 27, 2017)

Does anyone else feel like this is just the ultimate extreme of what we all constantly complain about? There seems to be no accountability at Amtrak. Employees are in a culture where they don't feel like they have to follow any rules, nor is there any direct supervisor on board.

I also really dislike the fact that Amtrak is saying "it's not our fault" instead of saying "we are currently conducting complete background checks on all employees, along with retraining staff to make sure nothing like this ever happens again"


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## the_traveler (Nov 27, 2017)

There IS a supervisor on board! He or she is called the Conductor!

Or do you mean someone who watches over you all the time?



When I worked for the IRS in Arizona, my Supervisor was in Phoenix - 260 miles away. Then due to a realignment of districts, my Supervisor was in Las Vegas - 125 miles away. My Supervisor did not look over my shoulder every day, but I did have to report to her.


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## dlagrua (Nov 27, 2017)

crescent-zephyr said:


> No words. She should get every penny she asks for.


Yes the woman deserves to be largely compensated for the vicious rape on her by this criminal savage. While I do hope that she wins a million dollar award, the end result is that the tax payer ends up footing the bill for Amtrak's negligence.


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## crescent-zephyr (Nov 27, 2017)

the_traveler said:


> There IS a supervisor on board! He or she is called the Conductor!
> 
> Or do you mean someone who watches over you all the time?
> 
> ...


The last I hear the LSA was the manager of OBS correct?

So in the IRS office there was no office manager? seems odd.


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## Steve4031 (Nov 27, 2017)

BCL said:


> AmtrakBlue said:
> 
> 
> > Steve4031 said:
> ...


Yes you correctly interpreted my intent. I need to proofread better.

Sent from my iPhone using Amtrak Forum


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## Steve4031 (Nov 27, 2017)

I wonder how many of fun us have had this creep for an sca. And how many times was he reported for other stuff besides the charges already mentioned.

Sent from my iPhone using Amtrak Forum


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## Karl1459 (Nov 27, 2017)

Steve4031 said:


> I wonder how many of fun us have had this creep for an sca. And how many times was he reported for other stuff besides the charges already mentioned.
> 
> Sent from my iPhone using Amtrak Forum


Again, to read the article the perp was hired as a "chef". However he would have free access through (Seattle) sleeper territory to get to the trans dorm. The ones who screwed up seem to be the Railway Labor Board, for which they will be rewarded with full taxpayer funded retirement!


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## crescent-zephyr (Nov 27, 2017)

I think he was rehired as a sleeper attendant. I read multiple articles on it so I'm not sure which article it was in.


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## Devil's Advocate (Nov 27, 2017)

According to the article Amtrak did take complaints seriously and fired this employee in the past. But thanks to special protections afforded to union members and railway employees they were later forced to rehire him again.



the_traveler said:


> There IS a supervisor on board! He or she is called the Conductor!


In all my years of riding on Amtrak I've never once seen an on-duty conductor actively counter or correct the actions of a sleeper/coach attendant or dining crew. Nor does Amtrak ever bother to explain to their customers how their structure of escalation and accountability is supposed to work. Even if you call Amtrak while on the train they cannot seem to do anything to resolve a dispute while you're still aboard. So far as I can tell Amtrak offers no practical method for immediate conflict resolution other than kicking the customer off the train.


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## the_traveler (Nov 27, 2017)

crescent-zephyr said:


> the_traveler said:
> 
> 
> > There IS a supervisor on board! He or she is called the Conductor!
> ...


So you yourself admit there WAS a Supervisor on board! And yes, the LSA is the Supervisor of OBS, and while onboard the Conductor is the Supervisor of the LSA.
My IRS office was a satellite office. It consisted of 1 Tax Auditor (myself), 2 Revenue Agents And 2 Revenue Officers.


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## SarahZ (Nov 27, 2017)

Steve4031 said:


> Its shocking that this could happen. It is possible. Assume the guy got in there and closed and locked the door and the bed was down. If he prevents or scares her into silence then it's possible.
> 
> Don't know how full that car was. The crew would have to be passing through at exactly the right time.


Considering the EB passes through Wolf Point at 11:41 a.m. (if running on time), it's possible most people were at lunch or in the lounge car.

That said, think about how noisy the train gets at times. If he had a pillow or his hand over her mouth, no one would have heard her, even if the car had been full. Even if she'd kicked the door or wall, people would just attribute it to the random banging you hear when going over switches or when car attendants move berths around. Add to that, people in their rooms generally wear headphones.

At 11:41, if I'm not at lunch, I'm in my room with the curtain and/or door closed and my headphones on. I wouldn't have heard a thing.





That poor lady. The report of her injuries is just awful. I cannot even begin to imagine what she is going through.


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## crescent-zephyr (Nov 27, 2017)

the_traveler said:


> crescent-zephyr said:
> 
> 
> > the_traveler said:
> ...


I had meant a supervisor position like the previous Chief of On board services or the train manager position (can't remember the title) on VIA rail.


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## Thirdrail7 (Nov 27, 2017)

Devil's Advocate said:


> According to the article Amtrak did take complaints seriously and fired this employee in the past. But thanks to special protections afforded to union members and railway employees they were later forced to rehire him again.


Perhaps I am reading this incorrectly but it seems to me that he was fired twice. Once in roughly 2002 and once in 2006:



> But Michael George, the victim's Great Falls attorney, alleges Amtrak had records of Pinner's employee misconduct from 2000, specifically incidents of hostility against white women, when he told a female co-worker, "You're the typical garden variety type, and that's a typical Anglo-Saxon trait," and on the same day told another, "I have no trouble strangling a white woman."
> 
> Two years later, another complaint was filed against Pinner for violating Amtrak's personal conduct, honesty and safety policies. Court records don't include any specifics about the violation, _but Pinner was dismissed as a result of the complaint, *although he was reinstated five months later, according to court documents*_





> And in 2006, the train company launched a "formal investigation" into Pinner for reportedly selling pornography while on the job. The company reportedly learned about Pinner's endeavors when he told a van driver he was selling X-rated adult videos, and handed the driver a bag of them.Court documents filed by Amtrak attorneys state the company did act on Pinner's misconduct, and actually terminated him in 2006.





Devil's Advocate said:


> In all my years of riding on Amtrak I've never once seen an on-duty conductor actively counter or correct the actions of a sleeper/coach attendant or dining crew. Nor does Amtrak ever bother to explain to their customers how their structure of escalation and accountability is supposed to work. Even if you call Amtrak while on the train they cannot seem to do anything to resolve a dispute while you're still aboard. So far as I can tell Amtrak offers no practical method for immediate conflict resolution other than kicking the customer off the train.


It used to happen quite a bit. However, it calmed down when the Boardman regime came in. The lines became blurred under layers of management and protocol. When Gunn was in charge, it was a pot luck. Crew members and passengers alike were booted off the train. I remember a conductor that had his engineer dragged off in handcuffs mid trip! Hopefully, Moorman's plan to streamline management will bring back an era of clear responsibility and accountability.

This is terrible for the lady involved and I would think if they had a shred of decency, a settlement would occur ASAP.


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## LookingGlassTie (Nov 27, 2017)

All I can say is "wow"!!


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## Charles785 (Nov 27, 2017)

Why is it so difficult to fire these unionized workers, even ones with criminal backgrounds as in the

case of this Pinner guy? According to the story in the Great Falls Tribune he had a rap sheet

that included felony robbery and drug trafficking, and he was quoted as having told an Amtrak

co-worker that "I would have no trouble strangling a white woman." At best he sounds like

one surly son of a gun who certainly doesn't belong in any kind of customer service work.

It's difficult to believe whatever labor union he was part of would be required to defend a guy like

that. And if some law required a union to defend someone like that, then the law needs to be

changed.


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## Lonestar648 (Nov 27, 2017)

First, This poor woman should be taken care of immediately, medically, psychologically, and financially. Then Amtrak management must dissect the crime to find the the points where in the decision process failure occurred. I would hope that the unions could be involved, even quietly, to help root out such criminals who are dangerous to the safety and welfare of passengers and crew. Passengers need to feel safe on board, and parents need to feel it is safe to bring their children. Does the Union feel they have to support a member who has committed a major felony, basically stating it is permissible to murder, rape, and brutalize passengers? Deep background checks are needed, Amtrak needs a policy of no felony criminal records and suspended if indited until convicted, then terminated. Amtrak and the Unions have to make sure everyone is as safe as possible from predators.


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## west point (Nov 27, 2017)

Have no idea if possible but maybe the arbitration board or whom ever should be sued as well for requiring a person such as this to be re instated ? Maybe that would give it more push towards terminations for bad conduct ?


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## the_traveler (Nov 28, 2017)

I am confused!





If he is serving 60 years and was in prison in late November 2017 in MT, how is he reinstated and now working for Amtrak?


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## SarahZ (Nov 28, 2017)

the_traveler said:


> I am confused!
> 
> 
> 
> ...


He was reinstated before the rape occurred. That's why she's suing.


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## tricia (Nov 28, 2017)

From the article at link provided by OP: 

"Court documents filed by Amtrak attorneys state the company did act on Pinner's misconduct, and actually terminated him in 2006. Pinner, backed by his union, appealed his firing and a binding Board determined the discipline was too severe. Pinner was again reinstated and worked with the train company until Oct. 1, 2015, when *he was terminated for the rape in Roosevelt County, Montana approximately six months after it took place* on April 19. Court documents also state the company launched its own formal investigation into the incident on May 6."

Six months?!? I hope he was NOT working on trains during those six months, but see little in Amtrak's reported handling of this that's reassuing about that. Geez, did it really take more than 2 weeks before Amtrak "launched its own formal investigation?"

I'm female and almost always travel alone on LD trains. This story makes me wonder how delusional I've been about safety.


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## Lonestar648 (Nov 28, 2017)

Can't say if this happened, but when a felony occurred with the company I worked for, the company waited for the police to complete their preliminary on sight investigation. The reasoning was to not interfere with the primary criminal investigation. Unofficially,and behind the scenes, I was aware that our company started an investigation almost immediately. The person in question was immediately suspended with pay, then terminated in conjunction with the police report.


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## tricia (Nov 28, 2017)

crescent-zephyr said:


> I also really dislike the fact that Amtrak is saying "it's not our fault" instead of saying "we are currently conducting complete background checks on all employees, along with retraining staff to make sure nothing like this ever happens again"


This ^ (Wish we had a "like" button on this forum. Also a sarcasm emoji)


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## AmtrakBlue (Nov 28, 2017)

tricia said:


> I'm female and almost always travel alone on LD trains. This story makes me wonder how delusional I've been about safety.


I’m female and travel alone and do not let things like this keep me from enjoying my travels. I feel just as safe traveling as I do at home.

Sent from my iPhone using Amtrak Forum


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## Steve4031 (Nov 28, 2017)

Iirc the passenger did not immediately report the rape. She waited until after the trip was completed. Thus there would have been a delay in the start of the process.

Sent from my iPhone using Amtrak Forum


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## LookingGlassTie (Nov 28, 2017)

To (possibly) answer Charles785's question, this guy probably had the "powers that be" over a barrel. You know, the whole discrimination/identity politics stuff, given his background. Sounds like a classic case of one area of law tripping over another one, with collateral damage.


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## GBNorman (Nov 28, 2017)

While hardly surprising the incident being discussed is hardly the "one and only". Here is a first person account of another:

http://www.livinglearninglovinglife.com/2014/11/guest-post-i-was-sexually-assaulted-aboard-an-amtrak-train-itsourstory.html

And a piece of advice from within to Amtrak to which they ought to give serious consideration:



> For CRYING OUT LOUD they need armrests that can be put down when you are sitting next to someone who is a stranger to you. It makes it so that you are basically sitting in a loveseat shaped space with someone you dont know!!!!


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## jis (Nov 28, 2017)

IMHO, Amtrak's attempts to wash its hands off all responsibility is shameful. But I guess as a legal strategy, it is what it is.

But the possible memes that can come out of this on the likes of Facebook is pretty alarming, if some anti-Amtrak entity gets hold of this and decides to run with it. It could be a public relations disaster. Much worse nightmare than say what United faced with the guy who was dragged off the plane.


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## neroden (Nov 29, 2017)

I would say that the woman should name the union *and* the "Board" which ordered the rapist rehired as defendants along with Amtrak. And frankly Amtrak should join and sue them too. The union's inexcusable behavior in getting the rapist reinstated after Amtrak quite justifiably fired him for a long series of criminal and firing offences makes the union liable. A union is not a lawyer: it is not obliged to defend admitted, indefensible behavior and it is actually not supposed to.


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## neroden (Nov 29, 2017)

Charles785 said:


> Why is it so difficult to fire these unionized workers, even ones with criminal backgrounds as in the
> 
> case of this Pinner guy?


Because the Railway Labor Board is saffed with -- frankly -- criminals who belong in prison. There's no other way to describe it. This woman absolutely should have named the Railway Labor Board as coconsiprators and charged *them*. They're not immune.


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## tricia (Nov 29, 2017)

jis said:


> IMHO, Amtrak's attempts to wash its hands off all responsibility is shameful. But I guess as a legal strategy, it is what it is.
> 
> But the possible memes that can come out of this on the likes of Facebook is pretty alarming, if some anti-Amtrak entity gets hold of this and decides to run with it. It could be a public relations disaster. Much worse nightmare than say what United faced with the guy who was dragged off the plane.


This SHOULD be a public relations disaster for Amtrak, if their attitude to assaults on passengers on their trains is effectively "sh** happens, not our fault."

Common carriers are held to a higher standard of care because passengers are utterly reliant on them for safety and security while on board. ALL of Amtrak's onboard staff need to be trained to be vigilant for episodes of assault, and to treat responding to any such event as a top priority: make sure the passenger is OK, and make sure any alleged perpetrator is immediately isolated from other passengers. By "vigilant" I mean routinely keeping an eye out for circumstances that seem "off" and following up to make sure everyone is OK, instead of following the natural inclination to treat anything out of the way as interference with doing one's job.

Amtrak also needs to do a better job communicating to passengers that if they encounter any personal threat they can and should approach ANY Amtrak staff to report the problem. If they can do this for the extremely rare problem of terrorist activity ("if you see something, say something"), surely they can do something similar for the much more common problem of assault.

And, yeah, they do need armrests between passengers, especially on overnight trains.


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## neroden (Nov 29, 2017)

GBNorman said:


> This incident will cost Amtrak "heap big wampum" - and it should!
> 
> By now, Amtrak knows, or at least should, that they must be extra vigilant in the hiring process, and that the background check complete before one is ever hired - especially for public contact work. Even the Union, the ASWC, had to know this guy was "trouble", but they knew that if they did not defend him through all levels of the discipline and appeals process under the Agreement and the Railway Labor Act, he would turn around and seek damages under the "failure to represent" provisions of the Landrum-Griffin Act.
> 
> But who are the real losers - the vast majority of Amtrak employees who do their jobs courteously and efficiently - and all the time putting up with "crap" too voluminous to discuss here.


I read the Landrum-Griffin Act. There are no "failure to represent" provisions. Are you referring to something else?

As far as I can tell, the union had absolutely zero obligation to defend him when the rapist was fired the second time -- for illegally and in violation of his job requirements conducting unlicensed private for-profit business while on duty. While the union might be supposed to defend him the *first* time when he was fired for bigoted remarks, the *2006* firing isn't at all questionable: he admitted to a totally blatant violation of his job duties with no excuse and for personal gain. The union was out of line in attempting to defend him, and the RLB ruling is unsustainable.

It would have been correct for Amtrak to simply refuse to rehire him and to appeal the RLB ruling to the Supreme Court on the grounds that the public safety requires that they cannot rehire someone who is bringing disrepute on the company by violating his contract, and the law, for the purpose of private profit. It would be good to set a precedent and smack down the criminals on the RLB.


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## jis (Nov 29, 2017)

The lack of armrests in Coach in Amtrak trains has always seemed bit odd to me since the first time I encountered such. I have commented on it here in the past, and as usual got a barrage of silly justifications from mindless Amtrak apologists.





Sent from my iPhone using Amtrak Forum


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## GBNorman (Nov 29, 2017)

Mr. Nerode, having spent three years of my eleven year railroad career in Labor Relations, I can assure you that "failure to represent" is a provision under the Landrum-Griffin Act:

https://www.nlrb.gov/who-we-are/our-history/1959-landrum-griffin-act

Even though the Railway Labor Act was enacted prior to the "Trilogy" (Wagner, Taft-Hartley, Landrum-Griffin), the Trilogy has jurisdiction over railroad labor relations to the extent that the Act's provisions do not conflict with the Trilogy.

Now a word on the "Boards" under the Act. The (RLA) Act established the National Railroad Adjustent Board, which was divided into four Divisions to adjudicate cases final and binding along craft lines. However, the load of cases exceeded the Board's capacity to make timely adjudications of matters regarding work rules and discipline, so there was enacted legislation establishing Boards of arbitration, known within the industry known as Public Law Boards.

While I am removed from the industry and my second career for now 36 years (third career was as a CPA in private practice from which I retired during '03, first military service), I hope this helps.


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## railiner (Nov 29, 2017)

jis said:


> The lack of armrests in Coach in Amtrak trains has always seemed bit odd to me since the first time I encountered such. I have commented on it here in the past, and as usual got a barrage of silly justifications from mindless Amtrak apologists.
> 
> 
> 
> ...


Me too.....IIRC, the original Amfleet cars had 'em.....when the Amfleet II cars came, I believe they were removed. I too am annoyed by seatmates "encroaching" on my space, that a center arm rest would help preserve to some extent....Even one that could be raised up, if the adjacent seat remained empty....


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## Steve4031 (Nov 29, 2017)

I took a quick look on the internet at high speed train interiors and tgv and ice trains both have armrests in 1st and second class. The seats on those trains are better than amtraks seats IMHO.

Sent from my iPhone using Amtrak Forum


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## Mystic River Dragon (Nov 29, 2017)

tricia said:


> jis said:
> 
> 
> > IMHO, Amtrak's attempts to wash its hands off all responsibility is shameful. But I guess as a legal strategy, it is what it is.
> ...


I agree completely with everything tricia says here. I for one will stop promoting Amtrak to my friends and relatives until Amtrak finds a conscience.

And although the nightmare of what happened will never go away, I also hope the woman this horrible, dreadful thing happened to will be able to find healing and some peace.


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## Chey (Nov 29, 2017)

AmtrakBlue said:


> tricia said:
> 
> 
> > I'm female and almost always travel alone on LD trains. This story makes me wonder how delusional I've been about safety.
> ...


I agree with Tricia. This is not something I'll forget, and having once been a union steward years ago I'm well aware of how unions protect employees like Pinner. It won't keep me from traveling and enjoying it but I will be more aware and careful now.


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## SanDiegan (Nov 29, 2017)

BCL said:


> Bob Dylan said:
> 
> 
> > Union or no Union,why isnt this cretin in Jail? And where were the other Crew Members and other passengers on the train during this attack?
> ...


Good thing it happened in Montana. In California, he would probably be out already.


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## Lonestar648 (Nov 29, 2017)

Based on what is being said about about the laws protecting employees, I think there needs to be a provision that keeps criminals from endangering the public. No woman, child, or man needs to be concerned about the people who are working around them, who are trusted because they work for the company. In this case, the union twice, supported successfully, an employee who is a sexual predator. Question: If Amtrak was required to rehire this person, could they have placed him in a non-public position or were they required to place him in OBS?


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## SanDiegan (Nov 29, 2017)

crescent-zephyr said:


> the_traveler said:
> 
> 
> > There IS a supervisor on board! He or she is called the Conductor!
> ...


My government employer has layers and layers of managers. They mainly get in the way of work being done and do nothing but micromanage our attendance and break times.


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## Bob Dylan (Nov 29, 2017)

SanDiegan said:


> crescent-zephyr said:
> 
> 
> > the_traveler said:
> ...


Not to mention hold "Meetings" that accomplish absolutely nothing except for screwing up the already screwed up system right?


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## neroden (Nov 29, 2017)

GBNorman said:


> Mr. Nerode, having spent three years of my eleven year railroad career in Labor Relations, I can assure you that "failure to represent" is a provision under the Landrum-Griffin Act:


But... it's not. I literally read the entire act. Then I text-searched both "failure" and "represent" in case I'd overlooked it. It's not there.
Maybe it's in a different act and people are a little bit sloppy about the reference? Is it in the Railway Labor Act, which I did not read? Is it in Taft-Hartley? Is it in some later amendment or addendum to the act?

Or perhaps is it in some set of regulations issued pursuant to the act under some particular interpretation of the law? Or some "interpretive ruling" by some administrative board, or by some judge? Because there are a lot of rules in that law about how unions are supposed to operate, mostly about union elections and restrictions on usage of union funds, but I found *nothing* in the text of the law requiring unions to fund defenses of admitted criminal activity.

Because this matters. If the supposed "failure to represent" claim isn't actually in the *law text* but is an invention of one of the administrative boards, it's something whose scope can be restricted by the courts. And they would do it in a case like this if Amtrak pushed it.



> https://www.nlrb.gov/who-we-are/our-history/1959-landrum-griffin-act
> 
> Even though the Railway Labor Act was enacted prior to the "Trilogy" (Wagner, Taft-Hartley, Landrum-Griffin), the Trilogy has jurisdiction over railroad labor relations to the extent that the Act's provisions do not conflict with the Trilogy.
> 
> ...


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## caravanman (Nov 30, 2017)

I take issue with the tone of some posters... "getting a rapist re-instated". The guy was not a rapist, he was in trouble for something else. Having representation at a works disciplinary hearing is a right and fair thing for your union to do for you. Judgements were made at the hearings, and appeals, as with any court type environment.

The guy sounds like a bad lot, and it is unfortunate that he got re-instated, but keep in mind that he was reinstated not as a rapist, but for much lesser violations.

Can any business legislate for an employee who is a bit problematic, who suddenly escalates, picks up a gun and starts shooting his co-workers, or attacking the public?

Frothing at the mouth because you dislike unions is not relevant to this issue, in fairness.

Ed.


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## cirdan (Nov 30, 2017)

caravanman said:


> Frothing at the mouth because you dislike unions is not relevant to this issue, in fairness.
> 
> Ed.


I'm neither pro nor anti union.

I've never worked in a unionozed workplace or otherwise had much exposure to them so don't have enough information to pass judgement.

And of course you are right. A union may, by virtue of its statutes, have to provide legal support for a member, regardless of whether or not the union actually sanctions what that person did.

This can at times make them easy easy bait for those who have an axe to grind. Do the same people go after legal insurances when they pay up and provide legal counsel for a rapist? Probably not. Thus unions get unfairly singled out for just doing what their members pay them to do.

One proplem I do have with unions is that they often see themselves as having to act as some sort of politcal force and get involved in political discussions, campaigning and issues of political correctness and such that clearly go beyond their actual mission of defending the interests of their members against abuse by management and unfair working conditions. As such they step on more toes than is really necessary and are maybe making enemies unncessarily.


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## crescent-zephyr (Nov 30, 2017)

Selling pornography on the job and making verbal threats should both be fire-able offenses (does anyone really disagree with that?). That's why we don't like the union who got his job back.


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## Ryan (Nov 30, 2017)

It would be instructive to see *why* he was able to be reinstated before we throw the unions under the bus.


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## tricia (Nov 30, 2017)

crescent-zephyr said:


> Selling pornography on the job and making verbal threats should both be fire-able offenses (does anyone really disagree with that?). That's why we don't like the union who got his job back.


I have zero interest in union bashing or defense here.

There are two issues I WOULD like to see this discussion focus on:

1) Hiring/firing policy: Does Amtrak run suitable background checks on all on-board personnel? Does its staffing policy set an appropriately high bar for people responsible for passengers' safety and security? The union's role in this is only one part of a bigger picture.

2) Vigilance and responsiveness: I'm particularly disturbed at Amtrak's response to each of the incidents reported in this thread. Amtrak apparently needs to make systemic changes to take more seriously the potential for assault on their trains. They need to be much more proactive about letting passengers know they can and should approach ANY staff they see with ANY security-related problem. And they need to train staff to make it a very high priority to watch for and follow up any possible assault or threat of assault.

Finally, does anyone here know to whom at Amtrak an email or letter about these concerns might best be addressed?


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## Hotblack Desiato (Nov 30, 2017)

Ryan said:


> It would be instructive to see *why* he was able to be reinstated before we throw the unions under the bus.


I often see that "bad unions" go hand-in-hand with bad management.

These hearings where a fired union member goes up for job reinstatement can be likened to a trial where a defendant is facing a prison sentence. That person is entitled to a defense, and it's up to the prosecution to prove the case.

In these situations, the prosecution is essentially the company/management showing why they fired someone. Often, management is too lazy (or too timid?) to actually properly document the infractions when they occur and properly put them on the employee's record, with appropriate disciplinary actions at the time. If anything, they just try to avoid the situation, and complain about how the union makes it "impossible to fire anybody."

I've even sat on a similar board before hearing one employee (I don't even think he was union) appeal his termination. In the end, the management failed to make any reasonable case as to why they fired him, so we voted to give the person his job back.


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## crescent-zephyr (Nov 30, 2017)

Very good point tricia. Agreed.

Yes, Amtrak's response to both of the issues reported in this thread is quite disturbing.


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## OBS (Nov 30, 2017)

Hotblack Desiato said:


> Ryan said:
> 
> 
> > It would be instructive to see *why* he was able to be reinstated before we throw the unions under the bus.
> ...


Absolutely true. I can't tell you how many poor performing, fired employees get their job back because of this!


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## Ryan (Nov 30, 2017)

^^^ That is precisely what I was getting at. For a firing to stick, management has to do their jobs and do it right. The problem may be on that side of the relationship and not with the union.


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## me_little_me (Nov 30, 2017)

Hotblack Desiato said:


> Ryan said:
> 
> 
> > It would be instructive to see *why* he was able to be reinstated before we throw the unions under the bus.
> ...


It always comes back to management. Supervisors often don't want to do the necessary paperwork when the offenses first start. So they dump off the employee on another supervisor or division. This continues until one supervisor is willing to do something or until the problem is impossible to ignore. By that time, the employees has a good history of satisfactory ratings and management can't claim he was a long-time offender. I experienced that when observing an airman known to be an alcoholic and driving government vehicles drunk was drunk on duty. He had just gone off to a site in a government vehicle. After being told that by another enlisted man, I went to his supervisor and explained that if he ran someone down, that supervisor was up the creek as everyone know he know what was going on. He got another airman to drive the alcoholic back and he was ordered to report to the base hospital for treatment. Apparently, he was just passed around from organization to organization. The supervisors neither helped their case nor helped him until then.


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## Hotblack Desiato (Nov 30, 2017)

me_little_me said:


> Hotblack Desiato said:
> 
> 
> > Ryan said:
> ...


Further to the bad management discussion, Amtrak's very history seems to enable these sorts of problems. Not only is there the issue of ineffective supervisors not documenting/writing up employees, but Amtrak's management gets shaken up so damn much that it seems rather difficult for good managers to stick around in any one place long enough to actually do something about problems that occur.

I can't specifically say that this was the case in this instance, but LD trains in particular are constantly having their management/oversight structure changed (all these deck-chair reorgs that aren't even finished before the next one starts). It's conceivable that the managers responsible for pursuing disciplinary action against certain employees wind up getting moved around before they have the chance to complete the task, and they leave it on the next guy to finish, if he/she even knows what was in the works/where to start. I'll leave it at that, because I don't want to turn this into an "Amtrak is fundamentally broken" rant.


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## GBNorman (Nov 30, 2017)

OK, Mr. Nerode, I will concede to you that the doctrine of a Union's obligation to represent it's employees was first set forth in the first of the Trilogy - the Wagner Act. However, with much enacted legislation, there are found to be "lukewarm" provisions to accomplish the intent of the legislation's framers. The Landrum-Griffin Act placed "teeth" into the fair representation of employees covered by an Agreement.

https://www.nlrb.gov/who-we-are/our-history/1959-landrum-griffin-act


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## Lonestar648 (Nov 30, 2017)

Amtrak management should, but doubt they will, use this case to do a detailed post mortum (what decisions were made or not made, what processes were followed or not, etc.) by a cross functional management team with a specific date to complete. The purpose isn't to find fault with specific persons but to prevent this or similar from happening in the future. Management needs to be tasked with continuing improvement and updating of the company's procedures and regulations. Too many managers default to let the other guy worry about it, the CEO has to start the flow down through the management ranks, holding them accountable for not being current. I have worked for companies who did this and those who didn't. I can say that problem employees, drinking on the job, etc. were shipped over to another manager in a different city without any documentation of the problem. The manager thinking his problem was gone and he was free of any liability. I can say that when everyone is held accountable by the CEO, issues were properly documented, and problem employees dealt with quickly, many times with corrective measures, others demanded termination based on company policy. Bottom line senior management is responsible for any event like this occurring and correcting so it doesn't happen again..


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## Thirdrail7 (Nov 30, 2017)

I'm only going to dip into this from a general perspective since this debate can occur in any work place.



neroden said:


> Or perhaps is it in some set of regulations issued pursuant to the act under some particular interpretation of the law? Or some "interpretive ruling" by some administrative board, or by some judge? Because there are a lot of rules in that law about how unions are supposed to operate, mostly about union elections and restrictions on usage of union funds, but I found *nothing* in the text of the law requiring unions to fund defenses of admitted criminal activity.
> 
> Because this matters. If the supposed "failure to represent" claim isn't actually in the *law text* but is an invention of one of the administrative boards, it's something whose scope can be restricted by the courts. And they would do it in a case like this if Amtrak pushed it.
> 
> ...






GBNorman said:


> OK, Mr. Nerode, I will concede to you that the doctrine of a Union's obligation to represent it's employees was first set forth in the first of the Trilogy - the Wagner Act. However, with much enacted legislation, there are found to be "lukewarm" provisions to accomplish the intent of the legislation's framers. The Landrum-Griffin Act placed "teeth" into the fair representation of employees covered by an Agreement.
> 
> https://www.nlrb.gov/who-we-are/our-history/1959-landrum-griffin-act


The basic Cliff Note version is the NRLB basic states that the Union must represent you to the best of their ability:

*Right to fair representation*

*You have a right to be represented by your union fairly, in good faith, and without discrimination.*

*Your union has the duty to represent all employees - whether members of the union or not-fairly, in good faith, and without discrimination. This duty applies to virtually every action that a union may take in dealing with an employer as your representative, including collective bargaining, handling grievances, and operating exclusive hiring halls. For example, a union which represents you cannot refuse to process a grievance because you have criticized union officials or because you are not a member of the union. But the duty does not ordinarily apply to rights a worker can enforce independently - such as filing a workers' compensation claim - or to internal union affairs - such as the union's right to discipline members for violating its own rules.*

It does not say the Union has to win. They do have to represent you...even if you are not a member of their union. This is because the union is the authorized agent of contact with the company. As an example, an engineer has to belong to a union within the company. However, said engineer does NOT necessarily have to belong to the union that represents engineers. If a situation occurred that required representation occurred, the engineers union would HAVE to represent him even though he is not a member of their union. As the agent of contact, they have to see it through even if they find the charge or act immoral or criminal.

Additionally, the union is not their to "protect" or "save" employees. All they basically do is make sure that things occur within the scope of the contract and to attempt to make sure there is consistency based upon the contracts. That's pretty much it. If there is an exception, it is noted. If there are no exceptions, then whatever occurs is up to the company....and the public law board. Even then, people have sued in court and been reinstated (often with back pay when it reaches that level) since the courts (and sometimes the board) tends to look at the specific incident and the gravity of the past incidents.



Lonestar648 said:


> Based on what is being said about about the laws protecting employees, I think there needs to be a provision that keeps criminals from endangering the public. No woman, child, or man needs to be concerned about the people who are working around them, who are trusted because they work for the company. In this case, the union twice, supported successfully, an employee who is a sexual predator. Question: If Amtrak was required to rehire this person, could they have placed him in a non-public position or were they required to place him in OBS?


It would depend on the ruling of the PLB. If they impose limitations, you would have to follow them. However, if the PLB reinstated them in all capacities, the company would have no choice but to reinstate them in all capacities since this is a binding decision. Once they are back, they must be treated evenly, fairly and with consistency, otherwise the company runs the risk of being cited for retaliation or harassment which is typically a provision of reinstatement.



tricia said:


> There are two issues I WOULD like to see this discussion focus on:
> 
> 1) Hiring/firing policy: Does Amtrak run suitable background checks on all on-board personnel? Does its staffing policy set an appropriately high bar for people responsible for passengers' safety and security? The union's role in this is only one part of a bigger picture.


Define "suitable" background checks. This is becoming an issue as more and more states are starting to back off questioning past criminal behavior. To my knowledge, Amtrak follows Washington DC's guidelines and they have what is known as Fair Criminal Record Screening Amendment Act of 2014 - LIMS. 

The Cliff Notes basically say:

*What Can’t Employers Ask About?*



*Application Form
On an application form, the law prohibits employers from asking about:
• Arrests;
• Criminal accusations (that are not pending or did not result in a conviction); or
• Criminal convictions.
Interview Process
During the interview process before a conditional job offer is made, the employer is
prohibited from asking about arrests, criminal accusations or criminal convictions, and
is not allowed to do a criminal background check.
Conditional Job Offer
An employer may ask you about and look into criminal convictions only after extending
a conditional offer of employment (at no point can an employer ask you about arrests or
criminal accusations). An employer who properly asks you about a criminal conviction
can only withdraw the offer or take a negative action against you for a legitimate business
reason.** If a negative action is taken or the job offer is withdrawn, you have 30 days to
submit a request to the employer for:
• A copy of all interview and hiring-related records created for you by the employer in
consideration of your application, including your criminal records;*** and
After receiving your request, the employer has 30 days to provide you the information.*



*** A reasonable business purpose will be determined using six factors: (1) Specific duties and responsibilities necessarily
related to the employment; (2) Fitness or ability of the person to perform one or more job duties or responsibilities given
the offense; (3) Time elapsed since the occurrence of the offense; (4) Age of the applicant when the offense occurred;
(5) Frequency and seriousness of the offense; and (6) Information provided by applicant or on his or behalf that indicates
rehabilitation or good conduct since the offense occurred.*

More states are starting to pass laws like this .Connecticut passed a variation (with their own exceptions) earlier this year. The bottom line is having a criminal record no longer automatically disqualifies you for the job. Using the criteria above, you'd have to ask when did he those convictions occur. If they occurred when he was 18 (as an example) and he interviewed when he was 45, you'd probably have a hard time turning someone down based on the elapsed time, particularly if the position he applied for had little relation to the charges.

It may not be easy to just say "convicted felons or criminals need not apply."

Besides, having past convictions doesn't necessarily mean that this is the end result anymore than it means that being a person without a criminal past can't commit a criminal act.


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## caravanman (Dec 1, 2017)

Probably the sensible thing would be to issue loaded guns to each passenger. I gather having guns to protect ourselves makes society safer for all?

Ed.


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## Ryan (Dec 1, 2017)

caravanman said:


> Probably the sensible thing would be to issue loaded guns to each passenger. I gather having guns to protect ourselves makes society safer for all?
> 
> Ed.


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## tricia (Dec 1, 2017)

Guys, the incidents referred to in this thread aren't funny. And your ideological perspective on unions is beside the point.

Thirdrail7: Thanks for the info about hiring guidelines. I personally don't really know what "appropriate" background checks should be--I was hoping discussion here might shed some light on that. However, common sense, and a reasonable standard of care, would indicate that a history of either stealing or assault should rule out being hired or retained as a sleeping car attendant. Yes, there might ought to be exceptions for lone incidents in the distant past, depending on circumstances.

In truth, I'm more concerned about Amtrak's corporate culture here. Their responses to both of the incidents noted in this thread indicate an unwillingness to take seriously the potential for assault to passengers. Work toward fixing that would, I think, also help with weeding out rogue employees.


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## Ryan (Dec 1, 2017)

tricia said:


> Their responses to both of the incidents noted in this thread indicate an unwillingness to take seriously the potential for assault to passengers.


How exactly do your draw that conclusion from the facts on hand?


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## tricia (Dec 1, 2017)

Ryan said:


> tricia said:
> 
> 
> > Their responses to both of the incidents noted in this thread indicate an unwillingness to take seriously the potential for assault to passengers.
> ...


Two examples:

From the article about the rape: "The argument that Amtrak is liable for the attack is based on the Common Carrier Doctrine, which holds carriers such as Amtrak to the "highest degree of care" in regards to passenger safety, rather than the "reasonable care standard." Amtrak's attorneys, however, argue that the doctrine doesn't apply in this case, only when a passenger is injured by an employee acting within the scope of their employment duties. Pinner raping the woman was "not ratified by Amtrak, and thus, Amtrak cannot be liable for punitive damages," the carrier's attorney wrote. " My mind boggles at this: Amtrak is saying it shouldn't be held accountable for actions committed by an on-the-job employee--one whose job is, in part, to ensure the safety and security of passengers--so long as Amtak doesn't explicitly give that employee permission to rape a passenger.

And from the blog post about the other incident: "He [a conductor] was walking through the car pulling tags from the exited passengers to indicate which seats were now available. I caught him near the stairs and told him that the man exiting the train wearing a white shirt had assaulted me. He pulled his neck back to take a look at me and hardly missing a beat continued on with what he was doing, saying “I wish you had said something while he was still on the train.” Immediately on the defensive, I told him that I had been unable to get out of my seat without climbing over the man’s lap and that when he had come through earlier and I called him to my seat I tried to signal to him that I didn’t want him there. Without a moment more of questioning, without ever asking if I was alright or if I needed anything, he moved on with what he was doing and never looked back. He never said one more word to me."

There's more, in both articles--the second details contacts with multiple Amtrak employees who failed to act appropriately. I'm at work and don't have time to dig further. But given the abundant discussion on this forum about Amtrak's inconsistency of service, MIA attendants, etc. it seems pretty obvious that Amtrak's corporate culture isn't well oriented to dealing with this.


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## caravanman (Dec 1, 2017)

I see myself as a feminist. If I walk down a lonley street at night, and there is a lone female ahead, I cross the road to the other side, so as not to raise any worries. I don't see the events as funny in any way.

I can only imagine the extra layers of stress that travel can bring to a female, but I don't see that Amtrak is any different to any other employer. The mailman, the repairman, anyone who crosses our paths could turn out to be "bad". Maybe the current level of sexual harrasment coming into the news in many walks will help to promote better Amtrak whistle blowing and vetting procedures. Road accidents in the news do not stop us driving, or even thinking about such. One very bad employee should not be allowed to destroy our sense of personal well being on Amtrak, I feel.

Ed


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## jis (Dec 1, 2017)

I agree with Tricia. I think there is a definite sense of callousness on the part of Amtrak staff and organization that is exhibited in what is reported. But then that is not specific to Amtrak. In my observation there is an undercurrent of the "passengers are a necessary inconvenience" attitude among a significant subset of customer facing people in many transport outfits.


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## PVD (Dec 1, 2017)

They didn't say they aren't responsible, they said they aren't subject to punitive damages being awarded. Compensatory damages would potentially still be in play. That would likely lead to a much lower award or settlement.


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## jis (Dec 1, 2017)

PVD said:


> They didn't say they aren't responsible, they said they aren't subject to punitive damages being awarded. Compensatory damages would potentially still be in play. That would likely lead to a much lower award or settlement.


Yeah, there is the legal strategy aspect to all this.

But contrast Amtrak's handling of this with United's handling of the passenger dragged off a plane by people who were not even United employees. Initially United behaved exactly like Amtrak, but soon the CEO was eating crow publicly and articulating what United is going to do differently to make sure this does not happen again. I am waiting to see if the second step will ever happen at Amtrak.


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## Devil's Advocate (Dec 1, 2017)

caravanman said:


> I see myself as a feminist. If I walk down a lonley street at night, and there is a lone female ahead, I cross the road to the other side, so as not to raise any worries...Maybe the current level of sexual harrasment coming into the news in many walks will help to promote better Amtrak whistle blowing and vetting procedures.


I still support the original goal of popularizing gender equality through traditional feminism. What's not to like about a social contract that promotes equal power and responsibility for the benefit of everyone? I think almost anyone with a conscience can get behind the idea that powerful people should not be allowed to abuse their position in order to force subordinates into non-consensual behavior. Whether on the street or on Amtrak or in a hotel room. However, we now seem to be moving beyond the equality standard in some ways, possibly in response to growing anger and dissatisfaction with living under the regime of a self-professed woman grabber. These days even seemingly harmless (if socially awkward) displays of romantic affection are being reinterpreted as potentially life altering criminal behavior. Which leaves me wondering how men will go about pursuing women in a socially acceptable manner in the future. Perhaps women will eventually become the primary romantic pursuers if the new social contract begins to favor their interests over time.


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## Bob Dylan (Dec 1, 2017)

The CEO of Amtrak needs to call up the Lawyers handling this case for Amtrak and tell them in no uncertain terms to Settle with the Woman for Fair Compensation along with Sincere apologies from Amtrak.

He also needs to have his Executive team do a serious study of the vetting,hiring and discipline system that Amtrak negotiates with the Unions, and implement a workable and sensible system that protects the Rights of Both the Employees and the Passengers!

Basta! Enough "it's not Right but its Legal" BS!!


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## tricia (Dec 1, 2017)

Devil's Advocate said:


> caravanman said:
> 
> 
> > I see myself as a feminist. If I walk down a lonley street at night, and there is a lone female ahead, I cross the road to the other side, so as not to raise any worries...Maybe the current level of sexual harrasment coming into the news in many walks will help to promote better Amtrak whistle blowing and vetting procedures.
> ...


That friendly touch currently is perilous in many settings is a real loss—and not just to our romantic lives. Human touch in social and business settings is so important that non-threatening ways to do it (like handshakes) have been institutionalized for perhaps as long as humans have been human.

But the blame for this awkwardness shouldn't be assigned to the women who feel newly enabled to publicly shame men who've abused them. The blame belongs to those men, and to some extent to all of us who've been complicit in a culture that has allowed them to abuse with little risk. (It's mostly men not because women are somehow morally superior, but because men are much more often in positions of economic, physical, and/or other power over women than vice versa.)

I think much of the current awkwardness is temporary. It seems reasonable to hope that as more men learn that they need to seek consent, rather than assume that superior power either gives them irresistible attractiveness or simply allows them to get away with whatever they want, life will improve for women and men alike.

Amtrak, like other businesses and institutions, can help this good process along by implementing a no-tolerance policy for physical abuse, defined to include any sort of intentional, non-consensual touching. For this to be effective, the policy needs to be well publicized, and employees need to be trained to look for and immediately respond to incidents of abuse.

Perhaps a few well-publicized incidents of gropers being thrown off the train at the next stop (as Amtrak policy currently treats on-board smokers) would be helpful. (DA: It's perhaps too much to hope that this might happen to a certain orange-haired office holder--but imagining such a scene does make me smile.)


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## Lonestar648 (Dec 1, 2017)

The corporate legal team seems to control these situations, not the CEO. How can we minimize the liability is all that is important to management. Lawyers prohibit admission of fault, immediate offers to compensate and assist, etc. because these demonstrate guilt. Concern for the people involved is at the bottom of their list, top is protecting the all mighty corporation. United's CEO went against the advice of his legal team. Amtrak is doing what most corporations do, hide behind the legal team.


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## neroden (Dec 3, 2017)

GBNorman said:


> OK, Mr. Nerode, I will concede to you that the doctrine of a Union's obligation to represent it's employees was first set forth in the first of the Trilogy - the Wagner Act. However, with much enacted legislation, there are found to be "lukewarm" provisions to accomplish the intent of the legislation's framers. The Landrum-Griffin Act placed "teeth" into the fair representation of employees covered by an Agreement.
> 
> https://www.nlrb.gov/who-we-are/our-history/1959-landrum-griffin-act


Thanks for the reference regarding the Wagner act.


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## neroden (Dec 3, 2017)

tricia said:


> Ryan said:
> 
> 
> > tricia said:
> ...


In a sense, Amtrak is correct in the rape case -- the Board should have been named as an additional defendant, and Amtrak should have countersued the Board, because because the Board *specifically ordered* Amtrak to rehire a employee who was known to be irresponsible and dangerous, against Amtrak's protests. That means they ratified the employee's action and THEY are subject to punitive damages. Name the individual arbitration board members as defendants and get going; reinstating someone who committed criminal activity on the job is outside the scope of their legitimate arbitration powers, so their actions can be classified as personal, not state.
If the board members want to claim that Amtrak didn't provide a proper prosecution, they can come defend themselves in court and we'll see who's actually responsible. Best to charge them.


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## caravanman (Dec 3, 2017)

Being from outside the USA, I am not familiar with how your laws work... It sounds to me as though a court judge can be prosecuted if they free a person, who then goes on to commit a different crime? Maybe it will be difficult to find folk to be judges, or sit on employee disciplinary panels, if that is the case?

Ed.


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## Thirdrail7 (Dec 3, 2017)

neroden said:


> tricia said:
> 
> 
> > Two examples:
> ...


I've always wondered how that worked, but I don't think it works the way you've mentioned, Neroden. Let go back to the archives and recall an incident in Amtrak's past:

A collision in 2004 between a stationary LIRR train and an Amtrak train in the East River tunnel. Please note, that I will only use information publicly available.

Allow a few quotes from TRAIN DRIVER IN CRASH TIRED



> Tritini, who has been fired by Amtrak, didn't dispute the finding, and told the Daily News he had worked "excessive overtime" in the week of the collision. "You either go [on an assignment] or you are insubordinate," he said. "You are between a rock and a hard place.
> 
> " Tritini was at the helm of an Amtrak locomotive pulling empty passenger cars into Penn Station at about 7 a.m. on April 19 when it slammed into a stopped LIRR train at about 10 mph. The collision knocked the LIRR train 13 feet and injured 131 passengers and crew members on the commuter train. None of the injuries was life-threatening. Amtrak spokeswoman Tracy Connell declined to comment. Tritini is appealing his firing through his union. Tritini was first hired by Amtrak in 1987. In 1994, he qualified as a locomotive engineer *but was fired in 1999 because of a "Rule G violation - random testing," according to the report. The rule pertains to possession, use and testing for alcohol, illegal drugs, medication or other substances that could cause impairment. He was rehired two years later and became an engineer again in 2002.*


The PLB overturned his dismissal from 1999 and he was reinstated in all capacities in 2002. A few years later, he is involved in a collision, in which he was fired again. This is another example of "What can you do?" Who is ultimately responsible other than the person who committed the act? You could argue that if the PLB didn't reinstate him, this incident never would have occurred. I don't think you can sue the board. I would believe that is akin to suing the courts.

After the above incident, the PLB **again** overturned the dismissal and reinstated him in all capacities (since it was his first operating incident 17 years...remember, the Rule G didn't count since he was reinstated) where he remained until he "moved on"




in 2012 after 25 years on the job.

Let say for giggles that he was involved in another collision and injured people after being fired twice and reinstated twice. These are court decisions. Can you sue a court for allowing someone with a previous record to be released on bail while awaiting trial and they commit a crime? Can you sue a parole board for allowing someone out on parole and the commit a crime?

I'm thinking the answer is no so while it sounds good on paper, it doubt this is a viable solution...unless you can prove misconduct or some sort of collusion or bribery. It is along the lines of suing the prosecutor or judge if you have been wrongfully convicted and your case is overturned.

Meanwhile, the companies are left holding the bag.

Additionally, Tricia, this is common tactic. If my memory is clear (and it might not be), Exxon used this same tactic after the disaster in the Prince William sound. They basically said "this isn't our fault. Captain Hazlewood is the one ran the ship aground. He is fully responsible for this since he knew he shouldn't operate a boat under the influence."

The freights (in which the CEO was the head of one) are NOTORIOUS for this move. They've resorted to suing their own crews for damages. Here was the first shot (to my knowledge) across the bow:

Engineer sued by railroad in train collision

Please allow a brief "fair use" quote from this 2005 article:



> Documents filed in U.S. District Court in Des Moines allege that Gary Cordray, a railroad engineer who lives in Fort Madison, failed to stop at a signal and ended up on a collision course with another locomotive.
> 
> A 4,000-gallon diesel tank was punctured and both locomotives and some freight cars were damaged.
> 
> An estimated 700 gallons of fuel spilled along a 1.5-mile section of the track, as did holiday popcorn tins and sneakers destined for Wal-Mart stores.The crash also delayed an Amtrak passenger train for several hours.


.



> *The company said Cordray was negligent in failing to follow proper regulations.*
> 
> *"Obeyance of train signals is essential for the protection of the safety and lives of BNSF employees, the safety and lives of passengers on Amtrak trains" and the safety of "others in proximity to railroad tracks," the lawsuit said.*[/B]


 

*I snickered when I first read this. I thought "oh, now they're worried about delaying an Amtrak train!



"*



*This was the first of many. Here are two fairly recent ones from a railroad that may have something in common with Amtrak:*



*2016's Norfolk Southern Railway sues engineer in 2015 Washington County derailment and 2014's Norfolk Southern suing engineer over Sewickley train crash*



*I will quote from the latter article:*









> *What Norfolk Southern would gain from winning the lawsuit isn't clear. Several lawyers familiar with employment and railroad laws said it's unlikely Heilig has an insurance policy that would cover a judgment in the case.*





> *John Stember, an employment law attorney who represents a local of the Brotherhood of Locomotive Engineers and Trainmen, said he's heard of companies trying to dock workers' pay or take other actions in response to accidents, but he hasn't heard of suing them in federal court for damages.*








> *“I've never seen it, and I've done this a long time,” he said.*


*Robert Peirce, a personal injury lawyer who represents people injured in railroad incidents, had the same assessment.*

*“I've not seen one like it,” he said.*

*Sam Cordes, an employment lawyer who represents employees, said he's seen companies sue employees to recover damages they have to pay to third parties, but that only makes sense if the employee has an insurance policy.*

*“That is probably what's going on,” he said.*

*Two of the damaged locomotives belong to Union Pacific Railroad and one of the railcars belongs to TXX Co., the lawsuit says. Consequently, Norfolk could end up paying both of them damages as well as other third parties, the lawsuit says*

[/b]

*You're probably thinking what does any of this have to do with anything. It is cut and dry to me. Look at the first article. The companies are basically saying 'We've trained people to act a certain way. They are professionals. They know what is right and what is wrong based the training and instructions they've received. THEY* are directly responsible for this and they are negligent and have failed us as well. We are taking action."

The companies are attempting to limit their liability, which is a common legal tactic. Ultimately, I believe a settlement will be made as soon as the terms have been made clear. However, the legal posturing is as Bob Dylan and Jis mentioned typical from a legal standpoint.

No matter what screening you provide, you can't be sure what someone will do. When the depressed copilot locked his pilot out of the cockpit and flew the plane directly into the side of the mountain, evaporating everyone on board, I'm willing to bet the company didn't see that one coming.


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## neroden (Dec 4, 2017)

It's not akin to suing the courts. Judges have a special status. Administrators in the federal government do not have the same status, because they are not actual judges; they do not go through the appointment and confirmation procedures applicable to judges.

Prosecutors can be and are sued, but have been given some completely ludicrous and unconstitutional immunities by judges, which are currently being challenged. The official legal excuse for the immunity is that prosecutors don't actually make any decisions (!!!) which is pretty bogus, but in any case does not apply to a quasijudicial panel.

Furthermore, you CAN actually sue judges if their actions were objectively *wildly* out of line with the law; their actions are then considered to be not a judicial action. Higher-level judges can give them reprimands.

This is substantially easier with an administrative panel which isn't actually judicial in the first place.

The standard for suing them isn't merely that they were negligent or contributed to the future crime; the standard, if I remember correctly, is that their ruling did not comply with the law and that they *knew* when they made the ruling that it did not comply with the law (the second part is the tricky bit, but it's been proven in some cases). Basically you have to prove deliberate disregard for the legal standards they were supposed to be upholding.

But under *normal* circumstances, the rulings of such an administrative panel are *not* binding; they can be appealed to the *actual* courts. I have been given the impression that Amtrak isn't doing this. Is there a legal reason why they aren't?

The way this works, last I checked, is, first you go to the courts to overrule the administrative panel and declare its ruling to be unsustainable and unjustified, and then after you've proven that, you may try to demand compensation for having to comply with the unjustified demands of the administrative panel in the meantime.

Did Amtrak fail to take the first step of going to the courts to overrule the administrative panel? If so, why? Is there a bizarre provision in the Wagner Act which prevents it?

Since the court appeals are usually really slow, I'm afraid I was assuming that Amtrak was still bogged down in appealing the administrative panel ruling (since that happens *often*), but did they just shrug their shoulders and not appeal it? In that case it's entirely on Amtrak.


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## Lonestar648 (Dec 4, 2017)

So the question would be, can the "Binding" decision made by the panel be appealed? If it can, why didn't Amtrak?


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## me_little_me (Dec 5, 2017)

caravanman said:


> Being from outside the USA, I am not familiar with how your laws work... It sounds to me as though a court judge can be prosecuted if they free a person, who then goes on to commit a different crime? Maybe it will be difficult to find folk to be judges, or sit on employee disciplinary panels, if that is the case?
> 
> Ed.


Court judges cannot be sued by individuals based on their rulings, if I understand right. Their rulings can be overturned on appeal; they can be removed from office; they can have other punishments imposed by higher courts; they can be "tried" and "convicted" in the court of public opinion.



Lonestar648 said:


> So the question would be, can the "Binding" decision made by the panel be appealed? If it can, why didn't Amtrak?


I would suggest that binding means exactly that. While it is likely possible to drag government agency decisions through the courts, it would also mean the other side could drag a decision in your favor the same way. For organizations who regularly use the same decision making body, it would likely be a dangerous precedent. That's different than a one-time lawsuit by individuals or class actions against a bank or government agency. It's not like the bank next time is going to sue if they lose the next binding arbitration decision against you, if there ever is one. The most-likely positive result when suing the bank is that the court of public opinion causes the bank or company to partially back down (ala Wells Fargo).


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## Lonestar648 (Dec 5, 2017)

It is what I thought, Amtrak received the binding decision and has to act accordingly. When the second firing came to the Board, I would have thought red flags across the way would have been raised and a more indepth due diligence would have been required before issuing the second decision.


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## jis (Apr 13, 2018)

Federal judge: Amtrak liable for woman's 2015 rape on Montana train



> A federal magistrate judge ruled that Amtrak is responsible for a woman's rape in 2015 by an employee as the train passed by Wolf Point.
> 
> U.S. Magistrate Judge John Johnston recommended the court deny Amtrak's request to have the case dismissed and granted the victim's request to declare the railroad carrier liable for her damages that resulted from the rape.
> 
> According to court documents, the victim, a North Carolina woman, was traveling across the country by train with two sisters in 2015 when a sleeper car attendant, 59-year-old Charles Henry Pinner, entered her room and raped her.


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## neroden (Apr 16, 2018)

caravanman said:


> Being from outside the USA, I am not familiar with how your laws work... It sounds to me as though a court judge can be prosecuted if they free a person, who then goes on to commit a different crime? Maybe it will be difficult to find folk to be judges, or sit on employee disciplinary panels, if that is the case?
> 
> Ed.


Arbitration panel members aren't court judges. That is a key point.

If they *were*, Amtrak would have won this case. Amtrak would have stated that they were forced to employ the rapist by court order -- being compelled by court order is a total defense against liability.

But they weren't court judges. Amtrak could have taken the arbitration panel to court over the issue, and didn't.

And again, because they aren't court judges, the arbitration panel members are potentially liable for their actions. Not if they made reasonable actions -- but if their actions were wholly unreasonable and outside the scope of their powers. Their powers do *not* include reinstating someone who has been removed for overriding customer safety reasons.

If judges act outside the scope of their powers they are *also* subject to personal liability. But judges have a lot more scope to their powers, so this has only happened, to my knowledge, in cases where judges attacked plaintiffs or defendants physically or threatened them with physical attack.

Now, it's quite possible Amtrak did not make the correct case to the arbitration board. Amtrak would have had to specifically tell the board that it was an overriding customer safety issue and that the rapist was a physical danger to their customers. If they did not tell the board this, then the arbitration board arguably behaved in a fashion which insulates them from personal liability. If they did tell the board this, they should have dragged the board through the courts *and* refused to reinstate the rapist during the process, whereas instead they acquiesced to the board's decision. I guess either way, Amtrak didn't do what was necessary to fight the board over this; they should have, obviously.

Amtrak needs to start fighting these cases. Amtrak has a very clear reason to. The judges will side with Amtrak, particularly when this case is brought out as an example.


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## neroden (Apr 16, 2018)

me_little_me said:


> While it is likely possible to drag government agency decisions through the courts, it would also mean the other side could drag a decision in your favor the same way. For organizations who regularly use the same decision making body, it would likely be a dangerous precedent.


This is actually what makes Amtrak liable. They *chose* not to appeal the decision of the arbitration board to the courts, when they absolutely needed to for customer safety reasons. They could have taken it right up to the Supreme Court if necessary, but the actual courts probably would have thrown the rapist out on his ass.

The threat of the unions making appeals to the courts is irrelevant; Amtrak can't have known rapists employed on board the train, period, and nothing the unions can possibly do will cause anywhere near as much trouble to Amtrak as allowing that.

But if Amtrak's attitude was "oh, we have to be nice to the arbitration board", rather than defending their customers... that makes them liable


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## PaulM (Apr 16, 2018)

crescent-zephyr said:


> I also really dislike the fact that Amtrak is saying "it's not our fault" instead of saying "we are currently conducting complete background checks on all employees, along with* retraining *staff to make sure nothing like this ever happens again"


The word "retraining" must have been a misprint. I'm sure training someone to not rape is above the pay grade of most company training departments.


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## Bob Dylan (Apr 16, 2018)

PaulM said:


> crescent-zephyr said:
> 
> 
> > I also really dislike the fact that Amtrak is saying "it's not our fault" instead of saying "we are currently conducting complete background checks on all employees, along with* retraining *staff to make sure nothing like this ever happens again"
> ...


This.


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## PVD (Apr 16, 2018)

That is not how most labor arbitrations go. First of all, they (the panel or arbitrator if one) are usually indemnified against routine liability, otherwise no one would take the work. Second, there decisions are very difficult to overturn in court, because both sides have agreed in advance to accept their decision. The likelihood of the Supreme Court agreeing to the review of an appeal on a decided arbitration would be near zero.

Most arbitration decisions can be appealed. However, due to the language that the parties often agree to before entering arbitration, the decisions are usually considered final barring some egregious unfairness in the arbitration process, and thus are unlikely to be reversed or even reviewed by a court. from law website article on the subject)


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## Thirdrail7 (Apr 16, 2018)

Neroden,

I am not a lawyer not do I play one on the internet. However, it seems to me that you are probably mistaken. PVD seems to be on the right track. The RLA and  PLB-Law 456 seem to spell it out what everyone from labor boards to unions to company officials (from different railroads) has stated.



> Public Law 89-456
> AN ACT
> To amend the Railway Labor Act in order to provide for establishment of
> special adjustment boards upon the request either of representatives of
> ...



The whole point of the RLA is to keep these disputes from tying up the courts. That is why they are binding. Failure to comply can lead to court action. Can you show us the basis for your statements? What exactly are you reading that reinforces your statements?


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## PVD (Apr 16, 2018)

Arbitration agreements are becoming increasingly common across many parts of out society, and (outside of labor disputes) it is usually businesses forcing them on consumers, for the specific reasons that they usually prevent a big payday for a customer, and they are so difficult to overturn. Judicial review is almost always avoided, and there is growing backlash against the system and its perceived unfairness to consumers. Labor disputes are another story, companies would sometimes prefer a system where they can use the courts to stall and try to wait out workers when they don't like how things are panning out, and courts usually order a company to accept the arbitration decision. Every once in a while something happens that results in an untoward event. We are assuming the facts were clear at the time the case was heard, and that they were presented properly. That may not have been the case.


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## cirdan (Apr 17, 2018)

Devil's Advocate said:


> Which leaves me wondering how men will go about pursuing women in a socially acceptable manner in the future. Perhaps women will eventually become the primary romantic pursuers if the new social contract begins to favor their interests over time.


This, exactly..

All the women I dated including the one who became my wife, I all met in social situations, at parties, dances and such.

These days a lot of dating appears to be on the internet. At least we see lots of advertising by dating agencies and I know several people who went down that path.

Maybe this is a result of men being more apprehensive about going up to and making small talk with a woman, for fear of it being considered harrasment.


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## tricia (Apr 17, 2018)

cirdan said:


> Devil's Advocate said:
> 
> 
> > Which leaves me wondering how men will go about pursuing women in a socially acceptable manner in the future. Perhaps women will eventually become the primary romantic pursuers if the new social contract begins to favor their interests over time.
> ...


My mind boggles at this, in the context of this thread about a violent rape committed by an Amtrak employee whose job specifically includes ensuriing the safety of the passenger who became his victim. (I'm talking to cirdan, here, not DA, whose quote he cherry-picked from a more thoughtful paragraph.)

Can we perhaps agree that rape isn't at all akin to even the most inept or inappropriate "small talk?"

Coming back to the original subject of this thread: Is there any reason why Amtrak could not have responded to the arbitration's order to re-hire this employee by assigning the employee some sort of work that didn't include direct responsibility for passenger safety?


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## PVD (Apr 17, 2018)

That would appear to make sense, but without reading the actual decision and order, I certainly can't say.


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## cirdan (Apr 17, 2018)

tricia said:


> cirdan said:
> 
> 
> > Devil's Advocate said:
> ...


i was never suggesting that.

I was merely responding to a point raised by another poster, that had nothing to do with the original topic of the thread.


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## Thirdrail7 (Apr 17, 2018)

tricia said:


> Coming back to the original subject of this thread: Is there any reason why Amtrak could not have responded to the arbitration's order to re-hire this employee by assigning the employee some sort of work that didn't include direct responsibility for passenger safety?


As previously discussed:



Thirdrail7 said:


> Lonestar648 said:
> 
> 
> > Based on what is being said about about the laws protecting employees, I think there needs to be a provision that keeps criminals from endangering the public.  No woman, child, or man needs to be concerned about the people who are working around them, who are trusted because they work for the company. In this case, the union twice, supported successfully, an employee who is a sexual predator. Question: If Amtrak was required to rehire this person, could they have placed him in a non-public position or were they required to place him in OBS?
> ...


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## VentureForth (Apr 19, 2018)

Thirdrail7 said:


> tricia said:
> 
> 
> > Coming back to the original subject of this thread: Is there any reason why Amtrak could not have responded to the arbitration's order to re-hire this employee by assigning the employee some sort of work that didn't include direct responsibility for passenger safety?
> ...


So it's still Amtrak's fault for not having an airtight case against him. Shouldn't have lost arbitration.


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## Ryan (Apr 19, 2018)

I’m not sure any of us have enough facts to make that judgement.


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## tricia (Apr 19, 2018)

Thirdrail7 said:


> tricia said:
> 
> 
> > Coming back to the original subject of this thread: Is there any reason why Amtrak could not have responded to the arbitration's order to re-hire this employee by assigning the employee some sort of work that didn't include direct responsibility for passenger safety?
> ...


According to the newspaper article that started this thread, the decision was that firing him was "too severe" a punishment. It doesn't say whether he had to be reinstated in his former job and no other.

The article DOES detail a troubling work history that should have precluded him working as a sleeping car attendant:

"Michael George, the victim's Great Falls attorney, alleges Amtrak had records of Pinner's employee misconduct from 2000, specifically incidents of hostility against white women, when he told a female co-worker, "You're the typical garden variety type, and that's a typical Anglo-Saxon trait," and on the same day told another, "I have no trouble strangling a white woman."

Two years later, another complaint was filed against Pinner for violating Amtrak's personal conduct, honesty and safety policies. Court records don't include any specifics about the violation, but Pinner was dismissed as a result of the complaint, although he was reinstated five months later, according to court documents.


And in 2006, the train company launched a "formal investigation" into Pinner for reportedly selling pornography while on the job. The company reportedly learned about Pinner's endeavors when he told a van driver he was selling X-rated adult videos, and handed the driver a bag of them.

Court documents filed by Amtrak attorneys state the company did act on Pinner's misconduct, and actually terminated him in 2006. Pinner, backed by his union, appealed his firing and a binding Board determined the discipline was too severe. Pinner was again reinstated and worked with the train company until Oct. 1, 2015,


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## jis (Apr 19, 2018)

We should thank our stars that the August Labor Board did not consider firing to be too severe for rape on the job I suppose.


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## Bob Dylan (Apr 19, 2018)

As opposed to rape @ Mar Largo or 1600 Pennsylvania Avenue so to speak.


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## jis (Apr 19, 2018)

Bob Dylan said:


> As opposed to rape @ Mar Largo or 1600 Pennsylvania Avenue so to speak.


Labor Board rules on those too? Their reach seems to be amazing


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## neroden (Apr 22, 2018)

Amtrak absolutely should have sued in court to overturn the first and second Labor Board ruling reinstating the rapist. Board rulings are not binding if they are contrary to law, and in this case they were contrary to law. But if I remember my procedure correctly, Amtrak would have to sue the Board to prove it.


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## Thirdrail7 (Apr 22, 2018)

VentureForth said:


> So it's still Amtrak's fault for not having an airtight case against him. Shouldn't have lost arbitration





tricia said:


> \
> 
> According to the newspaper article that started this thread, the decision was that firing him was "too severe" a punishment. It doesn't say whether he had to be reinstated in his former job and no other.
> 
> ...



Ventureforth,

In the eyes of the public law board, You can win the arbitration but that doesn't mean the discipline assessed was warranted or reasonable.

Tricia,

Unless you or the press have the ACTUAL ruling, you won't know. However, if the PLB ruling indicates the punishment was too severe, that is a tell tale sign he was reinstated in all capacities.



neroden said:


> Amtrak absolutely should have sued in court to overturn the first and second Labor Board ruling reinstating the rapist. Board rulings are not binding if they are contrary to law, and in this case they were contrary to law. But if I remember my procedure correctly, Amtrak would have to sue the Board to prove it.


I'm still looking for basis. Remember, after the first and second violation, he wasn't a rapist. He was a purveyor of porn (which is legal unless you are selling it minors. As such, this becomes a code of conduct violation,) and a person who is obviously prejudiced (which is another code of conduct violation.) There are many levels of code of conduct violation and circumstances dictate whether it may lead to termination. It happens, but not all of the time.

Typically, the PLB looks at the circumstances, patterns and the actual incident based upon rules at the time. Another mind boggling ruling involved an injured employee who fell on an engine trying to secure a door that opened at track speed. The employee was charged with failing to maintain a braced position and secure handhold. The union protested and took the PLB to the engine and asked them to look at the scene. After observing the engine, the PLB ruled that there was no way possible for the employee to comply with the rule since there is no way to maintain a secure handhold or maintain a braced position based on the engine design. Therefore, the employee clearly couldn't comply with the rule since it was not possible. That means that the employee didn't comply with the rule and is guilty. Award for the company! That is like the company writing a rule saying that you must flap your arms and fly to cross tracks and charging you with a violation when you can't since it isn't possible. As such, that ruling established a pattern of awards in that department and they are industry patterns...not individual railroad patterns.

What is the railroad pattern for termination regarding code of conduct violations? That is what they look at.


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## tricia (Apr 22, 2018)

Thirdrail7 said:


> Unless you or the press have the ACTUAL ruling, you won't know. However, if the PLB ruling indicates the punishment was too severe, that is a tell tale sign he was reinstated in all capacities.


Why should a ruling that a punishment is "too severe" preclude any re-assignment to duties where this man's history of "code of conduct violations" would be less of customer-relations and potential security problem?


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## Thirdrail7 (Apr 22, 2018)

tricia said:


> Thirdrail7 said:
> 
> 
> > Unless you or the press have the ACTUAL ruling, you won't know. However, if the PLB ruling indicates the punishment was too severe, that is a tell tale sign he was reinstated in all capacities.
> ...



When you're reinstated in all capacities, you are returned to your previous craft unless otherwise directed. If they go to that length of limiting your return, that typically means that termination was warranted and they wouldn't even bring you back.

Additionally, they may have looked at the man's history and decided none of his infractions involved actual infractions. Additionally, there may have even been mitigating circumstances regarding his comments that we are not privy to but the public law board was. An example of this is when a young conductor was holding onto the ledge of a mail car. Allow me to post a picture:






You're basically standing on a little ledge, with your arm wrapped a that hoop. Since radios weren't prevalent, you passed hand signals with a lantern. Long story short is why this conductor was being shoved, he passed a signal to slow down. the move didn't slow down. he passed a signal to stop. The move didn't stop or slow down. Wrapped around the side of the equipment, this young conductor sees the engineer is looking at the opposite side of the engineer and quickly realized the engineer is running his mouth instead of paying attention. The lantern was thrown (which was the emergency stop signal at the time and the engineer dumped the move into emergency. However, the move was still doing about 13 mph less than a car length away. The young conductor had to think about how he could keep from being injured. the options were jump from that height or ride out the move and hope the drawbars absorbed most of the speed because a collision was imminent. The decision was made to ride out the movement. After the collision, the now ANGRY young conductor , who had swirling memories of asking "hey what happens if the engineer doesn't respond to hand signals and we don't have back up hoses and they said don't worry about it" picked up the lantern, approached the engineer and despite the fact this person was at least three times the conductor's size, threw the lantern at his head.

That seems like a code of conduct violation and violence in the work place.

However, when every looked at the case, they saw just how close to a disaster this was for the young conductor. There was serious damage to the equipment but the young conductor only had bruises and a few strains. So, they looked at the case and decided mitigating circumstances warranted less discipline. However, most people weren't aware of the details..only, young conductor attacks senior engineer.

That young conductor moved on to other things and never really had other (serious) issues. Would you have fired that conductor Tricia since an act of violence was committed? Would you have said they can't provide customer service because of an incident between two employees?

Maybe you would have.

Other wouldn't have.

That is why there is a neutral board to look at the totality of the incidents. You and I don't have the totality of any of this. We don't even have the ruling so there may be much more to this. Hell, it could be a lot worse.

We don't know.


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## Ryan (Apr 22, 2018)

Thirdrail7 said:


> We don't know.


... yet we don't hesitate to cast judgement.

Should be the AU motto.


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## tricia (Apr 22, 2018)

We DO know that this man was fired for multiple "code of conduct" violations, including the delivery of racist, sexist slurs on the job, an unspecified violation of "Amtrak's personal conduct, honesty and safety policies," AND selling porn on the job.

We also DO know that after Amtrak rehired him and allowed him to work as a sleeping car attendant, he violently raped a passenger.

I'm pretty confident in my judgment that Amtrak should not, after MULTIPLE incidents that demonstrated his unfitness for such a security-sensitive position, have allowed this man to serve as a sleeping car attendant. We all make judgments, every day, without the "totality of the evidence." I think ThirdRail is proposing an unreasonable standard for this.

I'm also really, really uncomfortable that Amtrak's public response to all of this has been primarily to cover its butt, rather than to fix its employee standards to ensure that they don't hire or retain as an SCA anyone who's got at least three incidents of on-the-job personal conduct violations on his record.

And I find it hard to believe that Amtrak had absolutely no alternative but to reinstate this guy as an SCA and walk away from any responsiblity for his conduct. If that's the case, maybe we should all reconsider whether it's safe to be traveling in sleeping cars.


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## jis (Apr 22, 2018)

I agree that IMHO Thirdrail is proposing an unreasonable standard, but then again, being unreasonable is not unusual here or on many other boards. And mind you this is just my opinion and not an universal statement of the universal truth or anything like that. OTOH, Thirdrail does correctly identify what Amtrak's primary motivation is, and it is far from protecting its customers, as many would suspect from the way this was handled.

While one can make a convoluted technical argument that Amtrak did just perfectly well in this entire episode, and behaved exactly as any upstanding company should, the fact remains that the overall system is deeply broken and needs fixing. if I am going to be unreasonable, I will tend to lean in this direction.


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## Thirdrail7 (Apr 22, 2018)

tricia said:


> I'm pretty confident in my judgment that Amtrak should not, after MULTIPLE incidents that demonstrated his unfitness for such a security-sensitive position, have allowed this man to serve as a sleeping car attendant. We all make judgments, every day, without the "totality of the evidence." I think ThirdRail is proposing an unreasonable standard for this.



It isn't my standard and it isn't my judgement, nor is it yours Tricia. That is the decision of the Public LAW board. It is a LAW, Tricia that governs the airline and railroad industries. I don't like a lot of things that laws protect but if the LAW decides this is the way it is going to be handled, then you should lobby to overturn the law. Until then, if the PLB (empowered by law) states someone has to return, that is what has to be done. Think of it as someone who seems guilty of murdering two people but they are acquitted. If they're free to go, it doesn't really matter what you think or what the press stated. They are free and the law (which I listed above) clearly states they must be returned in the time period agreed to.

A man injured over 100 people after colliding with a train and was fired...after already being fired for a drug charge (which technically, the federal law on this called for a nine month revocation of certification) and the LAW stated that he must be returned . I found that appalling too. I thought, "Wow, he's free to injure more people. What will it take? Death?" However, I wasn't at the hearing nor was I privy to the evidence presented. The PLB ruled it was his first operational rule violation and he must be returned. Again, it is rare that someone is rehired in a limited capacity since if that is the case, they would typically uphold the termination.

Jis, I never said anything was handled well nor did I set or propose a standard at all. I never said much other than to explain how the SYSTEM works (or doesn't) by presenting some of the wacky PLBs decisions That's because people in the thread ASKED. There are procedures and rules to be followed. If you don't like it or believe it, that is entirely on you. But, now you have the basics of procedures.


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## jis (Apr 22, 2018)

Thirdrail, I realized that eventually. Sometimes I am pretty slow as you might have noticed. I generally agree with your position. I think you and I agree that the whole thing was handled pretty poorly. The flow of events may have been caused by the laws the way they are and as you said everyone trying to cover their butts first, and indeed things may be setup to remove all reasonable choice of action - which of course begs the question why such Boards cannot be fired and replaced by computers..

Unfortunately it is these sorts of things that fairly or not, give a bad name ti unions and labor laws.


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