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10/29/97 CALLIS v. NORFOLK SOUTHERN CORPORATION

October 29, 1997

CALLIS, PAPA, JENSEN, JACKSTADT & HALLORAN, P.C., PLAINTIFF-APPELLEE,
v.
NORFOLK SOUTHERN CORPORATION, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Madison County. No. 96-CH-253. Honorable David Herndon, Judge, presiding.

The Honorable Justice Maag delivered the opinion of the court. Kuehn, P.j., and Goldenhersh, J., concur.

The opinion of the court was delivered by: Maag

The Honorable Justice MAAG delivered the opinion of the court:

The defendant, Norfolk Southern Corporation, appeals from an order of the circuit court granting the plaintiff law firm, Callis, Papa, Jensen, Jackstadt & Halloran, P.C. (Callis), a preliminary injunction against the defendant.

Dennis Astorian is an employee of the Norfolk and Western Railway Company. The railroad is a subsidiary of Norfolk Southern Corporation. Astorian is a member of the United Transportation Union. The terms and conditions of Astorian's employment are set forth in a collective bargaining agreement between the railroad and the union. Article 60 of the agreement prescribes a procedure for resolving what is known as a "minor dispute". Pursuant to article 60, where conduct that might warrant discipline comes to the railroad's attention, the railroad is permitted to hold an investigatory hearing to determine if a company rule has been violated and, if so, to impose discipline. At this hearing, the employee is permitted to be represented by a union official, but both the employee and the railroad are barred from having attorneys participate.

On August 21, 1996, Astorian allegedly suffered a workplace injury. At some point shortly after the injury, Astorian was allegedly told by one or more of his supervisors that if he had any further complications with his injury, the supervisor(s) should be contacted day or night. On August 27, 1996, Astorian retained Callis to represent him in an action for damages under the Federal Employers' Liability Act (FELA) (45 U.S.C. ยง 51 et seq. (1988)).

At some point between the date of the injury (August 21, 1996) and August 30, 1996, the railroad learned or at least believed that Astorian may have consulted a nurse practitioner for treatment related to his injuries, without first informing his supervisors. This alleged visit to the nurse appears to have occurred during off-duty hours. On August 30, 1996, as a result of the alleged failure to inform the supervisors of the visit to a nurse, Astorian was sent the following notice of formal investigation.

"Dear Mr. Astorian:

Arrange to report to the Superintendent's Office Conference Room, 7021 Hall Street, St. Louis, Missouri, at 10:00 AM, Wednesday, September 4, 1996[,] for a formal investigation.

The purpose of this investigation is to determine the facts and your responsibility, if any, in connection with your failure to follow instructions issued to you by Assistant Superintendent of Terminals G. C. Nasello at approximately 9:30 AM on August 21, 1996[,] and instructions issued to you by Trainmaster R. N. Fallin at approximately 12:45 AM on August 22, 1996, in that you failed to inform them of your need for medical attention in connection with an injury which you sustained on August 21, 1996.

If you desire witnesses and/or a representative of your organization present at this investigation, arrange accordingly.

It is your responsibility to mark off with the Crew Management Office, if necessary, to attend this investigation.

G. C. Nasello

Assistant superintendent"

At the request of Astorian's union representative, the hearing was postponed until September 9, 1996. On September 4, 1996, Callis mailed a notice to the railroad, informing it that the firm represented Astorian. The railroad claims that this was its first notice that Astorian was represented by an attorney. On September 5, 1996, Callis filed a verified complaint seeking injunctive relief to stop the scheduled hearing. The complaint in part alleged the following:

"5. That plaintiff, CALLIS, PAPA, JENSEN, JACKSTADT & HALLORAN, P.C., has determined that its client, DENNIS K. ASTORIAN, has a claim against the Defendant, NORFOLK SOUTHERN CORPORATION, a corporation, under the Federal Employer's Liability Act, 45 U.S.C. Sections 51-60, and intends to file a Complaint against this Defendant in this Court in the next sixty (60) days.

6. That Defendant, NORFOLK SOUTHERN CORPORATION, a corporation, was notified by a letter sent certified mail dated September 4, 1996, notifying Defendant of Plaintiff's client's representation by Plaintiff's law firm, a copy of which is attached as Exhibit "A".

7. That DENNIS K. ASTORIAN received a certified letter dated August 30, 1996, giving notice of an investigatory/disciplinary hearing set for September 4, 1996[,] to be held by Defendant in St. Louis, Missouri. ***

8. That DENNIS K. ASTORIAN's union representative, Mr. W. L. Duncan, requested that Defendant continue the September 4, 1996, investigatory/disciplinary hearing and Defendant rescheduled the hearing for September 9, 1996. ***

9. That at said hearing DENNIS K. ASTORIAN is subject to questioning by representatives of Defendant concerning his accident and injuries for which plaintiff represents him. None of the attorneys employed by ASTORIAN will be allowed to be present during said hearing, as ASTORIAN'S sole representative can only be a union official.

10. That Defendant is thereby attempting to question ASTORIAN outside of the presence of his attorneys concerning the subject matter for which Plaintiff represents ASTORIAN in a separate action to be filed under the F.E.L.A.

11. That unless restrained by this Court, Defendant's representatives can and will interfere with the contractual relationship between the plaintiff and its client, DENNIS K. ASTORIAN, by forcing ASTORIAN to either subject himself to questioning and provide information regarding his [F.E.L.A.] suit, without the assistance of counsel, or face immediate dismissal for failure to do so, thus ...


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