Woman suing over Empire Builder rape case

[Chey]

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

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.

 

[SanDiegan]

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

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

 

[Lonestar648]

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?

 

[SanDiegan]

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.

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

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

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.

 

[Bob Dylan]

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.

The last I hear the LSA was the manager of OBS correct?
So in the IRS office there was no office manager? seems odd.

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.

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

 

[neroden]

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.

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.

 

[caravanman]

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.

 

[cirdan]

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.

 

[crescent-zephyr]

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.

 

[Ryan]

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

 

[tricia]

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?

 

[Hotblack Desiato]

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.

 

[crescent-zephyr]

Very good point tricia. Agreed.

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

 

[OBS]

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.

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

 

[Ryan]

^^^ 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.

 

[me_little_me]

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.

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.

 

[Hotblack Desiato]

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.

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.

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.

 

[GBNorman]

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

 

[Lonestar648]

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..

 

[Thirdrail7]

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

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.

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.

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.

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.

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.

 

[caravanman]

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.

 

[Ryan]

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.

 

[tricia]

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.

 

[Ryan]

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?

 

[tricia]

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?

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.