EMPLOYMENT (PILOT RIGHTS & SAFETY DECISIONS) / Cargo airline disciplined pilot in charge of flight where pilot / PIC took safety precaution (asked for change in alternate airport assigned in flight into China) and airline-employer believed pilot’s / PIC’s action unnecessary – held: (1) There is no private right of action available to pilot / PIC to vindicate his rights as he views them pursuant to the Federal Aviation Regulation, and (2) no violation by airline of the Railway Labor Act either.

Airline Professionals Association, Teamsters Local Union No. 1224 v. ABX Air, Inc., Case No. 1:12cv569 (U.S. District Court for the Southern District of Ohio, July 12, 2013. Copy of court-issued opinion available here.

RAILROAD (EMPLOYEE DEPRESSION, POST-TRAUMATIC STRESS DISORDER, ETC.) / U.S. Federal Railroad Administration issues this proposed rule in accordance with a statutory mandate that the Secretary of Transportation require certain major railroads to develop, and submit to the Secretary for approval, critical incident stress plans that provide for appropriate support services to be offered to their employees who are affected by a “critical incident” as defined by the Secretary who are directly involved in, who witness, or who respond to, such a “critical incident”.

“Critical Incident Stress Plans.”

June 28, 2013. Notice of Proposed Rulemaking.

“FRA issues this proposed rule in accordance with a statutory mandate that the Secretary of Transportation require certain major railroads to develop, and submit to the Secretary for approval, critical incident stress plans that provide for appropriate support services to be offered to their employees who are affected by a ‘critical incident’ as defined by the Secretary. The NPRM proposes a definition of the term ‘critical incident,’ the elements appropriate for the rail environment to be included in a railroad’s critical incident stress plan, the type of employees to be covered by the plan, a requirement that a covered railroad submit its plan to FRA for approval, and a requirement that a railroad adopt and comply with its FRA-approved plan.”

“This NPRM proposes a regulation that would require each Class I railroad, intercity passenger railroad, and commuter railroad to establish and implement a critical incident stress plan for certain employees of the railroad who are directly involved in, witness, or respond to, a critical incident. FRA seeks comment on all aspects of this proposal.”

“Although FRA has never regulated critical incident stress plans, many railroads have had some form of critical incident stress plan in place for many years. This rulemaking responds to the Rail Safety Improvement Act of 2008 (Public Law 110-432, Div. A) (RSIA) mandate that the Secretary of Transportation establish regulations to define ‘critical incident’ and to require certain railroads to develop and implement critical incident stress plans.

“As discussed in detail below, FRA reviewed the applicable science and information received through the Railroad Safety Advisory Committee (RSAC), and as required by Congress, FRA proposes a definition for ‘critical incident’ and proposes a set of minimum standards for critical incident stress plans. This approach provides covered employees with options for relief following a critical incident, yet allows for substantial flexibility within the regulatory framework so that railroads may adapt their plans commensurate with their needs. The proposal defines a ‘critical incident’ as either — (1) An accident/incident reportable to FRA under 49 CFR part 225 that results in a fatality, loss of limb, or a similarly serious bodily injury; or (2) A catastrophic accident/incident reportable to FRA under part 225 that could be reasonably expected to impair a directly-involved employee’s ability to perform his or her job duties safely. The proposed set of minimum standards for critical incident stress plans include allowing a directly-involved employee to obtain relief from the remainder of the tour of duty, providing for the directly-involved employee’s transportation to the home terminal (if applicable), and offering a directly-involved employee appropriate support services following a critical incident. The proposed rule would require each applicable railroad to submit its plan to FRA for approval.”

MARITIME (OSHA) / U.S. Department of Labor Occupational Safety and Health Administration (“OSHA”) formally announces in Federal Register the reestablishment of the Maritime Advisory Committee for Occupational Safety and Health, to advise OSHA – note earlier informal press announcement that OSHA has targeted maritime industry “for special attention because of its high injury and illness rates and the specialized character of maritime work”.

“In accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C., App. 2), and after consultation with the General Services Administration, the Secretary of Labor is reestablishing the charter for the Maritime Advisory Committee for Occupational Safety and Health. The Committee will better enable OSHA to perform its duties under the Occupational Safety and Health Act (the OSH Act) of 1970 (29 U.S.C. 655, 656). Authority to establish this Committee is at Sections 6(b)(1) and 7(b) of the OSH Act, Section 41 of the Longshore and Harbor Workers’ Compensation Act (33 U.S.C. 941), Secretary of Labor’s Order 1-2012 (77 FR 3912, Jan. 25, 2012), and 29 CFR Part 1912. The Committee is diverse and balanced, both in terms of segments of the maritime industry represented (e.g., shipyard employment, longshoring, and marine terminal industries), and in the views and interests represented by the members.”

“The Committee will advise OSHA on matters relevant to the safety and health of employees in the maritime industry. This includes advice on maritime issues that will result in more effective enforcement, training, and outreach programs, and streamlined regulatory efforts. The maritime industry includes shipyard employment, longshoring, marine terminal and other related industries, e.g., commercial fishing and shipbreaking. The Committee will function solely as an advisory body in compliance with the provisions of FACA and OSHA’s regulations covering advisory committees (29 CFR Part 1912).”

“Maritime Advisory Committee for Occupational Safety and Health (MACOSH)”

April 12, 2013. Final Rule. Notice Of Reestablishment Of The Macosh Charter.

See last week’s post on this blog available here.

RAILROAD (EMPLOYMENT JURISDICTION OF RAILROAD RETIREMENT BOARD) / D.C. Circuit vacated and remanded a decision of the Railroad Retirement Board holding that a holding company of certain shortline / Class III railroads was an “employer” for the purposes of (1) the Railroad Retirement Act, and (2) the Railroad Unemployment Insurance Act – the D.C. Circuit: Not such an “employer” because such holding company was not “under common control” with a railroad.

Indiana Boxcar Corporation v. Railroad Retirement Board, No. 12-1150, Slip copy (U.S. Court of Appeals for the District of Columbia Circuit, April 9, 2013). Free copy available here.

Note amicus brief filed by the trade group for short line / Class III railroads, the American Short Line and Regional Railroad Association.

The key question at stake is whether or not holding companies that own and operate such short line / Class III railroads are “employers” under the jurisdiction  of the Railroad Retirement Board – with all the differences that indicates for their legal and financial obligations vis-à-vis their employees. Such holding companies include names like Genesee & Wyoming (with its purchase last year of another great shortline / Class III railroad holding company, RailAmerica), and smaller concerns like TBG Holdings.

The gist of the D.C. Circuit’s opinion was that under Railroad Retirement Board precedent of long standing, the term “common control” did not apply to two companies in a parent-subsidiary relationship. Here, the Railroad Retirement Board departed from such precedent and failed to offer any explanation of that departure. Correspondingly, under the Administrative Procedure Act, the D.C. Circuit held that the Railroad Retirement Board’s decision was “arbitrary and capricious”.

ANNOUCEMENT / U.S. Department of Labor Occupational Safety and Health Administration (OSHA) to re-establish Maritime Committee for Occupational Safety and Health. COMMENT: Chief federal unit relating to worker safety is taking a new look at the maritime industry, with likely implications for more active enforcement.

Announcement available here.   

“The Department [of Labor via OSHA] selected the maritime industry for special attention because of its high injury and illness rates and the specialized character of maritime work.”

U.S. OSHA (ANTI-RETALIATION PROVISIONS OF FEDERAL RAIL SAFETY ACT) / U.S. OSHA acting pursuant to Federal Rail Safety Act fines Norfolk Southern Class I railroad $1.1 million upon finding (1) that NS had fired three employees in retaliation for reporting injuries, and (2) that this was a part of a pattern of conduct (“The Labor Department continues to find serious whistleblower violations at Norfolk Southern”).

Full text of news release available here.

EMPLOYMENT / Allegations against air charter company / corporate flight department of sex discrimination under federal civil rights law: One case dismissed and the other goes forward toward trial.

Difficulty of pleading and proving such a claim illustrated by these two cases: 

Blundell v. ConocoPhillips Co., Slip copy, 2013 WL 623495 (U.S. District Court for the Western District of Oklahoma, February 20, 2013). Free copy available hereContinue reading

EMPLOYMENT – 3 cases addressing Fair Labor Standards Act in context of motor carriers and employees.

Long v. BDP International, Inc., Slip copy, 2013 WL 505232 (U.S. District Court for the Southern District of Texas, February 8, 2013). Free copy available here.

Williams v. Hilarides, Slip copy, 2013 WL 459611 (U.S. District Court for the Eastern District of California, February 5, 2013). Free copy available here.

Soto v. William’s Truck Service, Inc., Slip copy, 2013 WL 487070 (U.S. District Court for the Northern District of Texas, February 8, 2013). Free copy available here.

EMPLOYMENT & LABOR (COLLECTIVE BARGAINING AGREEMENTS) / 4 cases addressing collective bargaining agreements in trucking and rail under various statutes.

Rutherford v. Judge & Dolph, Ltd,2013 WL 411358 (U.S Court of Appeals for the 7th Circuit, February 4, 2013). Free copy available here.

Labor Management Relations Act of 1947.

Brotherhood of Locomotive Engineers and Trainmen v. Union Pacific Railroad Co., 2013 WL 516095 (U.S Court of Appeals for the 7th Circuit, February 13, 2013)(Opinion by Posner, J.). Free copy available here.

Railway Labor Act

Teamsters Local Union No. 89 v. Kroger Co., 2013 WL 441993 (U.S District for the Western District of Kentucky, February 5, 2013). No free copy available at time of posting.

Labor Management Relations Act of 1947

General Drivers, Warehousemen & Helpers, Local Union No. 89 v. Jack Cooper, Slip copy, 2013 WL 427347 (U.S District Court for the Western District of Kentucky, February 4, 2013). Free copy available here.

Labor Management Relations Act of 1947

RAILROAD (FEDERAL RAIL SAFETY ACT) / Plaintiff railroad employee sues under Federal Rail Safety Act alleging employer retaliation for his reporting an injury, and defendants contend plaintiff had not exhausted administrative remedies as FRSA requires prior to bringing action in federal district court – held: Plaintiff’s complaint to U.S. Department of Labor OSHA sufficed to exhaust administrative remedies.

To argument that plaintiff did not submit appropriate “whistle-blower” complaint to OSHA court rule that neither the statute nor regulations prescribes a form for such a complaint and requires that it be used strictly in conformity to it. 

Windom v. Norfolk Southern Railway. Co., 2013 WL 432573 (U.S. District Court for the Middle District of Georgia, February 1, 2013). Free copy available here.