USDOL/OALJ Reporter: ARB Decision Caselist - July 2016

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SUMMARY DECISION; CONTRIBUTING FACTOR CAUSATION; TEMPORAL PROXIMITY MUST BE VIEWED UNDER TOTALITY OF THE CIRCUMSTANCES, WHICH MAY INCLUDE “CONTINUING FALLOUT” FROM AN INJURY REPORT

In Brucker v. BNSF Railway Co. , ARB No. 14-071, 2013-FRS-70 (ARB July 29, 2016), when the Complainant applied for employment in 1993, he checked the box stating “no” in response to the question, “Other than traffic violations, have you ever been convicted of a crime?” Nineteen years later, the Respondent discovered that the Complainant had been convicted of misdemeanor assault in 1985 and incarcerated for two years. After investigating, the Respondent eventually fired the Complainant. About two and a half years earlier, the Complainant’s attorney had informed the Respondent that he had been retained to represent the Complainant in a claim for work related injuries. The Complainant shortly thereafter filed an injury report. The Complainant testified that after he filed his injury report, his supervisors intensified their scrutiny of his work. The ALJ granted summary decision in favor of the Respondent finding no evidence of a connection between the injury report and the investigation into the criminal background, and finding that the supervisor’s constant observation of the Complainant as he worked played no part in its discovery of the conviction. The Complainant had been disciplined a couple times in the interim between the injury report and the termination, but the ALJ found those isolated incidents did not show that the injury report played a part in the termination. The ARB, reviewing the summary decision question de novo, vacated the ALJ’s decision and remanded. The ARB found several factors that raised a genuine issue of material fact regarding the contributory causation element.

The ARB found that the ALJ had assessed temporal proximity too narrowly. The ARB stated that “[w]hile it is true that Brucker reported his injury some two and one-half years before BNSF fired him, the ramifications of that report were most certainly not resolved on the day that it was filed and in fact, were still ongoing when BNSF fired Brucker.” USDOL/OALJ Reporter at 12 (footnote omitted). The ARB noted that there had been ongoing litigation which kept the Complainant’s injury report fresh. The ARB stated that the “continuing fallout” from the injury report must be considered. The ARB cited Franchini v. Argonne Nat’l Lab. , ARB No. 11-006, ALJ No. 2009-ERA-14, slip op. at 10 (ARB Sept. 26, 2012) (“Before granting summary decision on the issue of causation, the ALJ must evaluate the temporal proximity evidence presented by the complainant on the record as a whole, including the nature of the protected activity and the evolution of the unfavorable personnel action.”).

The ARB also noted that the Complainant had testified that the Respondent’s attitude toward him changed after he engaged in protected activity, intensifying its scrutiny of his work. The ARB stated that the fact that this scrutiny had not led to discovery of the misdemeanor conviction was irrelevant. The ARB noted that the Complainant testified about three incidents after the injury report that he believed exhibited retaliatory animus. The ARB also noted that the Complainant testified that when he filed out the job application, an Assistant Superintendent instructed him not to check the box because the Respondent was only concerned about felonies. The ARB noted, inter alia, that the Respondent did not “proffer any non-retaliatory reason for its investigation into the accuracy of Brucker’s employment application after 19 years of employment.” The ARB noted that the Respondent cited no cases in which an employee had been fired under similar circumstances. These factors made it possible that the Complainant could prevail on the contributing cause question.

SUMMARY DECISION; AFFIRMATIVE DEFENSE; COMPLAINANT’S OWN TESTIMONY FOUND SUFFICIENT TO RAISE GENUINE ISSUE OF MATERIAL FACT WHERE IT WAS BASED ON HIS PERSONAL KNOWLEDGE OF WHAT AN ASSISTANT SUPERINTENDENT HAD SAID, AND WAS NOT MERELY SPECULATIVE OR CONCLUSORY

In Brucker v. BNSF Railway Co. , ARB No. 14-071, 2013-FRS-70 (ARB July 29, 2016), when the Complainant applied for employment in 1993, he checked the box stating “no” in response to the question, “Other than traffic violations, have you ever been convicted of a crime?” The form required applicants to acknowledge that false information would be grounds for dismissal at any time, when it was discovered, and that the Respondent had policies against withholding information and dishonesty. Nineteen years later, the Respondent discovered that the Complainant had been convicted of misdemeanor assault in 1985 and incarcerated for two years. After investigating, the Respondent eventually fired the Complainant. About two and a half years earlier, the Complainant’s attorney had informed the Respondent that he had been retained to represent the Complainant in a claim for work related injuries. The Complainant shortly thereafter filed an injury report. The Complainant testified that after he filed his injury report, his supervisors intensified their scrutiny of his work. The ALJ granted summary decision on the question of contributing factor causation, and alternatively on the Respondent’s affirmative defense. The ARB found several factors that raised a genuine issue of material fact regarding the contributory causation element. It also found that the Complainant had raised a genuine issue of material fact on the affirmative “clear and convincing evidence” defense.

The ARB found that while the ALJ had provided a strong explanation for what the Respondent “could” have done, the ARB did not find clear and convincing evidence of what the Respondent “would” have done. The ARB found that the ALJ erred when he found irrelevant the Complainant’s testimony that an Assistant Superintendent instructed him not to check the box because the Respondent was only concerned about felonies. The ARB found that such testimony, if believed, could reasonably support an inference that, in practice, the Respondent would not ordinarily dismiss employees would had prior misdemeanor convictions, or care whether they failed to disclose them. The ARB found that the Complainant’s testimony on this point “was not speculative or conclusory, but was, in fact, based on his personal knowledge of his conversation with [the Assistant Superintendent], and is thus sufficient to create a genuine issue of material fact.” USDOL/OALJ Reporter at 16 (footnote omitted). The ARB noted that the ALJ had not pointed to any evidence that the Respondent routinely fired employees under similar circumstances.

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[STAA Digest V B 2 c]
PROTECTED ACTIVITY; REFUSAL TO DRIVE UNDER 49 U.S.C. § 31105(a)(1)(B)(ii); A WEATHER FORECAST MIGHT SUPPORT A DRIVER’S REASONABLE APPREHENSION OF SERIOUS INJURY TO HIMSELF OR THE PUBLIC, DEPENDING ON THE CIRCUMSTANCES; ERROR FOR ALJ TO CONCLUDE THAT A REASONABLE APPREHENSION CAN ONLY BE BASED ON CONDITIONS EXISTING AT TIME AND PLACE OF DRIVER’S REFUSAL TO DRIVE

In Treur v. Magnum Express, Inc. , ARB No. 15-001, 2014-STA-2 (ARB July 28, 2016), the Complainant was fired after he indicated that he would not drive based on weather forecasts of blizzard conditions, and would not report to work and assess weather conditions at that time. The ALJ found that the Complainant did not engage in protected activity when he refused to drive based on predicated weather forecasts rather than existing weather conditions at the time of his refusal to drive. The ARB vacated and remanded. The ARB wrote:

   For the following reasons, we believe the ALJ erred in his analysis of the facts and law pertaining to Treur’s refusal to drive. First, the ALJ’s analysis foreclosed the possibility that Treur’s refusal could constitute protected activity under 49 U.S.C.A. § 31105(a)(1)(B)(ii) and (a)(2) based solely on forecasted weather conditions. The language at section 31105(a)(1)(B)(ii) (“reasonable apprehension”) has been interpreted by the Department of Labor as encompassing refusals to drive in hazardous weather conditions in the future (or prior to dispatch) because “logic and common sense require that the driver can refuse to begin his assigned trip if he is aware that he will encounter hazardous road conditions.” In Eash v. Roadway Express, Inc. , the Board explained that although “§ 31105(a)(1)(B)(i) deals with conditions as they actually exist, § 31105(a)(1)(B)(ii) deals with conditions as a reasonable person would believe them to be.” We are unaware of precedent holding that a refusal to drive may be protected under section 31105(a)(1)(B)(ii) based solely on forecasted adverse weather conditions. Nevertheless, an employee who refuses to drive an assigned route prior to dispatch because of forecasted inclement weather does not automatically lose protected status because similar inclement weather conditions do not exist at the location and time when the driver informs his or her employer of his refusal to drive. In other words, contrary to the ALJ’s ruling, failure to assert existing weather conditions as grounds for refusing to drive does not necessarily preclude finding that an employee’s refusal to drive in the future is protected. Whether or not the existing conditions are safe is only one of the factors bearing on a driver’s reasonable apprehension that driving would result in serious injury to the driver or public. All the circumstances surrounding a refusal to drive—including but not limited to existing conditions, weather forecasts, timing, the condition and nature of the vehicle, and the driver’s experience—must be considered in determining the reasonableness of the driver’s refusal and whether the refusal constitutes protected activity. 49 U.S.C.A. § 31105(a)(1)(B)(ii) provides that a person may not discharge, discipline, or discriminate against “an employee because the employee refuses to operate a vehicle because the employee has a reasonable apprehension of serious injury to the employee or the public because of the vehicle’s hazardous safety or security condition.” This language does not speak to the immediacy of the hazardous safety or security condition. However, one of the principal definitions of “apprehension” is “anticipation of adversity or misfortune; suspicion or fear of future trouble or evil,” suggesting that future weather conditions might satisfy the statutory refusal requirements. Section 31105(a)(2) however further provides that “under paragraph (1)(B)(ii) of this subsection, an employee’s apprehension of serious injury is reasonable only if a reasonable individual in the circumstances then confronting the employee would conclude that the hazardous safety or security condition establishes a real danger of accident, injury, or serious impairment to health.” The ALJ below appears to have interpreted the clause “in the circumstances then confronting the employee” as requiring an employee’s knowledge of “existing (weather) conditions.” In our view, depending upon the totality of circumstances, a blizzard forecast of which a driver is aware that covers the time a driver is scheduled to drive (even though several hours in the future) and covers the area of his route, may constitute a “circumstance[] then confronting an employee.” Stated another way, depending on other relevant factors such as the suitability and condition of the vehicle, the driver’s experience, and timing of the refusal to drive, a driver aware of weather predictions of a blizzard, high winds, and white-out conditions might be found to have a reasonable apprehension of serious injury to himself or the public because of those impending hazardous conditions.

USDOL/OALJ Reporter at 8-9 (footnotes omitted). The ARB noted that the ALJ had indicated that the Complainant could have started the trip and turned around or driven to a motel if conditions became hazardous. The ARB rejected this possibility as a factor, stating: “In our view, a driver should not be required to drive into a blizzard before a refusal to drive is warranted—such a requirement, as the Secretary reasoned in Robinson [Robinson v. Duff Truck Line , No. 1986-STA-003, slip op. at 5 (Sec’y Mar. 6, 1987), aff’d in part sub nom., Duff Truck Line v. Brock , 848 F.2d 189 (6th Cir. 1988) (unpublished)], would ‘create the absurd situation of drivers being compelled to take their vehicles at least out of the terminal gate in order to avoid driving in ‘sufficiently dangerous’ conditions.’” Id . at 12 (footnote omitted). The ARB also noted that it is not a complainant’s burden to prove that there was no possibility that he could safely drive.

One member of the Board dissented, finding that substantial evidence supported the ALJ’s finding, which was limited to the specific facts of case. This member was uncertain what the ALJ would be required to do on remand that he had not already done.

[Editor’s note: The presiding judge in this case had retired by the time of the remand, so a second ALJ was assigned the case, and a new evidentiary hearing was conducted. The second ALJ rejected the Respondent’s contention that there was no protected activity because the Complainant had been fired because he refused to wait and see if the weather forecast materialized before making his decision on whether to drive, rather than because he refused to drive. Nonetheless, in a very fact-specific analysis requiring resolution of conflicting evidence, the ALJ concluded that “a reasonable person faced with the circumstances confronting [the Complainant] at the time of his refusal would not conclude that there was a bona fide danger of accident or injury.” The ALJ took into consideration that the local weather conditions were fine at the time of the refusal, that the Complainant’s knowledge was based only on forecasted weather and that he lacked information about existing conditions on the route, and the weather forecast was only for conditions anticipated several hours in the future. The ALJ distinguished the Robinson case, which the ARB had noted to be similar. See Treur v. Magnum Express, Inc. , 2014-STA-2 (ALJ Oct. 11, 2017).]

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DAVIS-BACON ACT CONFORMANCE DETERMINATION; ARB REMANDS WHERE THE RECORD FAILED TO PROVIDE INFORMATION ON WHAT WORK ADDITIONAL CLASSIFICATIONS WERE TO PERFORM, AND FAILED TO PROVIDE INFORMATION ON WHETHER THIS WORK SHOULD HAVE BEEN INCLUDED IN THE BID PROCESS

DAVIS-BACON ACT CONFORMANCE APPEAL; ARB MAY REMAND FOR ADMINISTRATOR TO CONSIDER EVIDENCE FIRST PRESENTED ON APPEAL

In Selco Air Conditioning, Inc. , ARB No. 14-078 (ARB July 27, 2016), the Petitioner (a union local) sought review of a conformance decision of the WHD Administrator, issued pursuant to 29 C.F.R. § 5.5(a)(1), approving the addition of three job classifications to a Davis-Bacon wage determination incorporated into the construction contract for a residential project covered by the DBA. The ARB found that the record was inadequate for it to address on review and remanded for the Administrator to make new or modified findings. The ARB found that the record did not evidence what work the three additional classifications were to perform, and noted that its precedent establishes that “where the addition of a new classification to a wage determination is sought pursuant to 29 C.F.R. § 5.5(a)(1)(ii)(A), the conformance request will be denied under the first criterion of the three-part test if the work to be performed by the requested classification is performed in the area by workers within an existing classification in the applicable wage determination.” USDOL/OALJ Reporter at 9. The ARB also found that the record was devoid of information concerning whether the contractor “knew or should have known in advance of the bid process, and before entering into its subcontract, that the work to be performed by the three additional classifications was not covered by the applicable wage determination, or whether the additional job classifications involved work that was not anticipated at the time of bidding or that were not included in the wage determination due to an oversight.” Id . at 11. The ARB stated that “[i]f the former was the case, Selco would be barred from seeking to add the classifications through the conformance process. If the latter, Selco would be entitled to add the classifications through the conformance process, assuming the criteria under 29 C.F.R. § 5.5(a)(1)(ii)(A)(1)-(3) were met.” Id .

The ARB noted in its remand order that it agreed with the Administrator that under most circumstances, the ARB will not hear new issues or accept new evidence absent an indication that the party did not have the opportunity to present the evidence to the WHD. In the instant case, however, the ARB referred to the Administrator new evidence submitted by the union for the first time on appeal. The ARB cited 29 C.F.R. § 7.1(e), which states that the ARB “may remand under appropriate instructions any case for the taking of additional evidence and the making of new or modified findings by reason of the additional evidence.”

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PROTECTED ACTIVITY; CALLING IN SICK AS REPORTING A HAZARDOUS CONDITION; § 20109(b)(1)(A) REQUIRES A REPORT POINTING OUT THE “HAZARDOUS CONDITION” AT THE RAILROAD

PROTECTED ACTIVITY; CALLING IN SICK AS A WORK REFUSAL; § 20109(b)(1)(B) and (C) REQUIRE:

• A REPORT OF “HAZARDOUS CONDITION” SUCH THAT A REASONABLE INDIVIDUAL WOULD CONCLUDE THERE IS AN IMMINENT DANGER OF DEATH OR SERIOUS INJURY; AND
• WHERE POSSIBLE, A NOTIFICATION TO THE RAILROAD CARRIER OF THE EXISTENCE OF THE HAZARDOUS CONDITION AND THE INTENTION NOT TO PERFORM FURTHER WORK

In Winch v. CSX Transportation, Inc. , ARB No. 15-020, ALJ No. 2013-FRS-14 (ARB July 19, 2016), the ARB held that the ALJ erred as a matter of law in concluding that the Complainant engaged in protected activity under FRSA, 49 U.S.C. § 20109(b) when calling in sick where the Complainant merely provided his name and identification number and requested that he be marked off as sick.

Reporting a hazardous condition

The first question addressed by the ARB was whether the Complainant reported a “hazardous . . . condition” under § 20109(b)(1)(A). The ARB wrote:

Even the most liberal reading of section 20109(b)(1)(A) requires that some information be reported pointing to the “hazardous condition” at the railroad. As a matter of law, the extremely limited information Winch reported falls short of “reporting . . . a hazardous . . . condition.” Because “reporting a hazardous condition” is essential to a claim of protected “refusal” under section 20109(b)(2), Winch’s remaining legal basis for asserting protected activity also fails as a matter of law. Failing to prove the essential element of protected activity, requires dismissal of Winch’s claim as a matter of law.

USDOL/OALJ Reporter at 8.

Refusal to work

The ARB next considered whether Complainant’s call in sick was a protected refusal to work under § 20109(b)(1)(B). The ARB wrote:

[T]he FRSA also “clearly does not protect every refusal to work” under section 20109(b)(1)(B). A refusal to work when confronted by a “hazardous safety” condition related to the performance of the employee’s duties under section 20109(b)(1)(B) is only protected if the hazardous condition is such that a reasonable individual would conclude there is an imminent danger of death or serious injury, see 49 U.S.C. § 20109(b)(2)(B)(i). The ALJ made no finding, and we see no evidence in the record, showing that Winch reported to or notified CSX that his condition presented an imminent danger of death or serious injury. A refusal to work when confronted by a hazardous safety condition under section 20109(b)(1)(B) is also only protected if the “employee, where possible, has notified the railroad carrier of the existence of the hazardous condition and the intention not to perform further work,” see 49 U.S.C. § 20109(b)(2)(C) (emphasis added). Again, there is no ALJ finding nor record evidence showing, that he “notified” CSX of the existence of a “hazardous” condition when Winch called in sick on January 19, 2012. Thus, as a matter of law, Winch failed to establish FRSA-protected activity under section 20109(b)(1)(B).

Id . at 8-9 (footnote omitted).

The ARB noted that this ruling was limited to the narrow facts of the case, and that it was not addressing “whether a railroad employee ‘reporting’ being sick might satisfy the requirements under section 20109(b) to establish protected activity under the FRSA in a different case where more sufficient details are reported to the railroad employer.” Id . at 9.

The ARB’s holding was affirmed on appeal by the Eleventh Circuit Court of Appeals, which like the ARB, did not opine on whether calling in to report one’s own illness can qualify as reporting a hazardous condition under § 20109(b). Rather, the court found only that substantial evidence supported the ARB’s conclusions. Winch v. Secretary of Labor , No. 16-15999 (11th Cir. Feb. 13, 2018) (per curiam) (unpublished) (2018 U.S. App. LEXIS 3584; 2018 WL 834194).