On October 9, 2014, a Great Falls district court judge found that BNSF's litigation strategy of trying to blame its train crew after the responsible operating department officials had exonerated them violated a court rule prohibiting the assertion of frivolous claims and defenses.
In an October 1, 2014 "merit finding," the Occupational Safety and Health Administration has concluded that BNSF illegally retaliated against Mandan, ND switchman Adam Johnson for following the orders of his treating physician. The OSHA decision orders BNSF to reinstate Mr. Johnson with back pay retroactive to April of 2014, pay him emotional distress damages, and pay his attorneys' fees. Mr. Johnson suffered a work-related injury on August 11, 2013 while switching in the BNSF yard at Mandan. Following the injury he occasionally had unpredictable headaches. His doctor told him to lay off work on days when these headaches were severe. Mr. Johnson did as the doctor instructed. In October of 2013 BNSF charged Mr. Johnson with violating BNSF's "availability" policy. It conducted a formal investigative hearing in November. During that hearing Mr. Johnson explained he had been following the doctor's orders. He provided the relevant medical records. He also provided an explanatory letter from the doctor confirming the instructions to Mr. Johnson to miss work. BNSF went ahead and ruled against Mr. Johnson anyway. Mr. Johnson filed a complaint with OSHA alleging BNSF had illegally disciplined him for following the orders of his treating physician. Congress assigned OSHA to investigate such claims of retaliation because of OSHA's experience and expertise with similar retaliation in other industries. Following the first BNSF formal investigation and discipline in late 2013, Mr. Johnson continued to miss work occasionally when his headaches were severe. In March of 2014, BNSF noticed up and conducted a second formal investigation of Mr. Johnson for violating the "availability" policy. When BNSF issued the charging letter and scheduled the investigation, it knew he had filed an OSHA complaint over the November 2013 investigation and discipline. Mr. Johnson again explained he had been following the doctor's orders. He again provided the relevant medical records. He again provided the explanatory letter from his doctor confirming the instructions to Mr. Johnson to miss work. BNSF went ahead and ruled against Mr. Johnson anyway. This time it fired him. The Federal Railroad Safety Act (FRSA) prohibits several different kinds of railroad bullying. Among other provisions, FRSA prohibits disciplining or threatening to discipline employees "for following orders or a treatment plan of a treating physician." There was never any serious question in Mr. Johnson's OSHA case that the doctor had instructed Mr. Johnson to miss work. But the BNSF Ft. Worth labor-relations lawyers who represented it in the OSHA proceeding argued strenuously that railroads do not have to respect medical instructions that give employees like Mr. Johnson any discretion in dealing with their symptoms. BNSF argued, in effect, that if anyone could theoretically abuse such instructions, BNSF gets to disregard the instructions as if the doctor had never even issued them. OSHA disagreed with BNSF. A copy of the entire merit finding is available below. [gview file="http://www.paoli-law.com/wp-content/uploads/2014/10/2014-10-01-Adam-Johnson-OSHA-Findings.pdf"]