Norfolk Southern activist investor highlights past abusive behavior of new COO as proxy fight intensifies

Norfolk Southern is almost two months into a battle with activist investor Ancora, which is trying to shake up the railroad's board and oust CEO Alan Shaw.

Now the firm is taking aim at Norfolk Southern's new operating chief John Orr over what the activist calls an "excessive" buyout package and a career marred by allegations of racial and sexual discrimination.

Last month, Norfolk Southern hired Orr away from rival CPKC, paying tens of millions of dollars to buy him out of his contract. The move was widely seen as a response to Ancora's operational criticisms and received praise from several Wall Street analysts.

In a letter to Norfolk Southern shareholders on Friday, Ancora highlighted past misconduct by Orr that raises questions about his hiring, even as the executive has overseen improvements in the railroad's operations in his three weeks on the job.

Ancora documented both alleged and substantiated workplace misconduct by Orr, dating back to his time as a mid-level executive at Canadian National. An appointee of the Canadian Arbitration Board substantiated allegations that Orr used verbally abusive language toward a female employee in the early 2000s. 

The employee and another witness told the employment tribunal at the time that Orr regularly cursed and shouted at the employee, and called her a "f------ b----" and a "f------ idiot." A witness told the arbitrator that, in one instance, Orr told the employee that she "was so f------ stupid it was embarrassing."

The arbitrator found the claims credible. 

Ancora also flagged a lawsuit filed in 2019 by a Black executive, who described Orr's treatment of employees and subordinates as "abysmal." The suit was filed against Canadian National, alleging racial discrimination.

Orr's behavior was allegedly "so bad" that Canadian National was forced to provide executive coaching for him, according to a 2020 filing in the lawsuit. Orr's deposition is sealed and the case was settled in 2022.

Prior to the announced hiring of Orr, Ancora drew attention to claims about his behavior in emails to two Norfolk Southern board members that CNBC obtained.

Ancora said in its statement on Friday that the hiring of Orr was a costly proposition that's harming shareholders. As part of the agreement, Norfolk Southern said it would pay Orr's prior employer $25 million in cash and provide additional unspecified concessions for a key rail hub and route in the southern U.S. Norfolk Southern values that particular part of the route at around 1% of its revenues.

When it announced Orr's hiring, Norfolk Southern didn't disclose the initial impact of the concessions or the estimated knock-on effects in the years to come.

Norfolk Southern told CNBC in a statement that Ancora's analysis of the value of the route — the Meridian Speedway agreement — "is completely inaccurate and based on a flawed premise," in that it assumes Norfolk Southern is forgoing more revenue than it actually is.

"As we previously stated, this revised agreement is by no means a consequential concession," the company said.

Ancora is seeking to oust Norfolk Southern's Shaw along with Orr in favor of former UPS CEO Jim Barber and former CSX Executive Vice President Jamie Boychuk, respectively. The activist has said that Norfolk Southern is dramatically underperforming its peers, and has laid the blame at the feet of Shaw and the board.

Regarding Orr, Norfolk Southern said he has a "track record of improving performance while operating safely and with integrity."

"Ancora's attempt to malign John by dredging up claims against his former employer, one of which is from over 20 years ago, is nothing more than an attempt to distract from the facts about their deeply flawed COO candidate, Jamie Boychuk," a company spokesperson told CNBC. "Mr. Orr and Mr. Boychuk's track records and industry reputations are simply not comparable."

In February 2023, a Norfolk Southern freight train derailed in East Palestine, Ohio, releasing toxic chemicals into the environment and prompting a political fight regarding railroad safety. Since then, the stock is roughly flat while the S&P 500 is up 26%.

Norfolk Southern's shareholders meeting is scheduled for May 9.

Ancora has gained the backing of other stakeholders in its fight with the company. Neuberger Berman, which holds a small position in Norfolk Southern, said on Friday that it would support Ancora's slate, citing a "history of poor governance that has long preceded" the railroad's transformation efforts.

A settlement between the two sides appears unlikely, Gordon Haskett analyst Don Bilson said in a Friday note to clients. Shaw previously told CNBC that the company offered Ancora a "couple" of board seats in a settlement offer.

Ancora told CNBC that it's made repeated attempts to settle with the company, both directly and through advisors. Any settlement, from Ancora's perspective, would be contingent on a board refresh and Shaw's ouster. The board has repeatedly expressed confidence in Shaw and has said it isn't interested in a settlement that would lead to his departure.