One of the most powerful arguments a union can make against unfair discipline is disparate treatment. Learn how to win a disparate treatment case and fight an unfair suspension or discharge.
Disparate treatment arises when one employee is given a significantly more serious penalty than others who committed the same infraction.
Disparate treatment violates Just Cause because it indicates the presence of favoritism or discrimination. Labor arbitrators frequently reduce a grievant’s penalty to the lowest level given for the offense.
Here are some points you may find useful in preparing your next disparate treatment case:
- The disparate treatment defense works best for a grievant who was suspended or discharged. It does not work well in the case of oral or written warnings.
- Disparate treatment may be raised even if only one other employee (called a “comparator”) was given a significantly lesser penalty – either recently or in the past.
- The best comparator is an employee within the bargaining unit. The union can also compare employees in other units or even in management. When a rule – for example a ban on intoxication – is applicable within and without the bargaining unit, an employer is expected to apply substantially similar penalties.
- Identifying a comparator is not the end of the story. The union must be able to overcome contentions by the employer that a “valid distinction” justified the difference in treatment. Valid basis includes substantially more years of service or a clearly superior disciplinary record. A lesser penalty may also be justified if the worker showed remorse and took responsibility for his or her actions.
- If a comparator’s discipline was modified during the grievance process, the union will need to review the settlement papers. If they say the case was resolved “without prejudice or precedence,” the union may not be able to cite the matter when defending others.
- The union should demand the personnel files and disciplinary records of possible comparators and, if possible, conduct interviews. The employer should be asked to specify in writing any and all reasons why the comparator was given a lesser penalty than the grievant.
For more on this topic, read Just Cause: A Union Guide to Winning Disciplinary Cases by labor lawyer Robert M. Schwartz. Available for $20 on the Work Rights Press website.
The United States Code of Federal Regulations [49 C.F.R. §392.14] provides in pertinent part as follows:
Hazardous conditions; extreme caution. Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated.
This regulation does not provide a clear test for when a driver shall discontinue operations due to bad weather.
The Surface Transportation Assistance Act (known as the STAA) prohibits an employer from disciplining or firing a commercial driver because that driver refuses to drive a commercial motor vehicle on the highways in violation of Federal safety regulations. The STAA also prohibits an employer from disciplining or firing a commercial driver because that driver refuses to operate a commercial vehicle when he has a “reasonable apprehension” of serious injury to himself or the public because of the vehicle’s unsafe condition.
When a driver claims that he has been wrongfully disciplined or fired in violation of the STAA, his case may be heard by officials of the U.S. Department of Labor (DOL). The DOL has decided only a handful of cases where a driver has been fired for refusing to drive due to bad weather.
In Cleary v. Flint Ink, Corp. (1996), a driver refused a dispatch scheduled to depart at midnight. On the morning of his scheduled departure, the driver saw the beginnings of a major snowstorm. He watched a televised weather report predicting heavy snowfall for the area of his scheduled run. The driver telephoned his supervisor at 8:15 a.m. and asked to have his run postponed. Not surprisingly the supervisor told the driver he could not delay his run, but gave him the option to leave immediately. The driver refused and reiterated his refusal to leave at midnight. Ultimately the driver was fired for his refusal to drive.
The Secretary of Labor upheld the firing. While acknowledging that a driver is protected when he refuses to drive due to adverse weather conditions, the Secretary found that the driver’s refusal to drive in the Cleary case was not reasonable under the circumstances. In ruling for the employer the Secretary of Labor stated:
“Given the evidence presented and the changing nature of the weather it was not reasonable to assume that the roads would be unnavigable 16 hours after [the driver’s] decision not to drive. Cleary should have waited until later in the day to observe the progress of the storm and make his decision based upon the most recent information available.”
In the case of Robinson v. Duff Truck Line, Inc. (1993), a motor carrier fired a driver because the driver did not even attempt to drive in what he claimed was bad weather. The carrier argued that the language in the regulations that says “the operation of the commercial motor vehicle shall be discontinued” when weather is sufficiently hazardous meant that the driver must at least start a run before refusing to drive due to hazardous weather.
The driver, Robinson, testified that television stations issued weather warnings advising against driving on the highways which were on his route due to icy conditions. Based on this he refused to drive and the carrier fired him.
The Secretary of Labor rejected the carrier’s argument that a driver must at least begin his run before he can refuse to drive due to bad weather, stating that it would create an absurd situation of drivers being compelled to take their vehicles at least out of the terminal gate.
Sleet, Rain and Snow
Eash v. Roadway Express, Inc. (2001) was a case before the U. S. Department of Labor wherein the employee, Larry Eash, refused a dispatch based on inclement weather. Eash was assigned to a bid between Copley,Ohio and Pittsburgh. When Eash woke on Jan. 14, 1999, he saw sleet and rain mixed with snow outside his home. Weather reports on the local radio station indicated that freezing rain was moving east toward Wooster,Ohio. A television news report indicated that driving was dangerous in western Pennsylvania and eastern Ohio. Eash observed freezing rain outside his home. He continued to monitor television and radio weather reports which advised against travel due to snow and freezing rain.
Several times during the day that Eash was scheduled to work, he called the employer and attempted to be relieved of his work responsibilities due to bad weather. Eash advised the persons that he spoke with that he believed the weather conditions made driving dangerous. His employer ignored his requests to be relieved from work until the inclement weather conditions cleared.
Eash left his home in his personal vehicle and began the 20-plus mile drive to Roadway’s terminal at Copley,Ohio. As he attempted to drive to work, freezing rain accumulated on his windshield, window glass and outside mirrors; he could barely see the road ahead of him because of the accumulated ice on the windshield. He could not view the side mirrors on his car because of the accumulated ice, and lost control of his vehicle at one point after driving about six miles from home.
He then called Roadway and told the dispatcher on duty that he was not going to report to work because driving conditions were dangerous. Roadway issued a “Letter of Warning” to Eash for his “Failure to report to work after accepting a work call on 1/14/99 at 19:55.”
An Administrative Law Judge of the DOL found that Eash “failed to establish that the type of weather conditions existed that would have made it unsafe to operate a commercial motor vehicle on Jan. 14, 1999.” However, the Judge found that Roadway had illegally disciplined Eash because “a reasonable person in [Eash’s] situation could have determined that a bona fide danger of accident or injury to his person existed and complainant had a reasonable apprehension of serious injury to himself or to the public because of the vehicles’ unsafe condition.” The judge ordered Roadway to remove from its files the warning letter that it issued to Eash.
When You Can Refuse To Drive
From these cases we can discern several rules about when a driver can refuse to drive due to adverse weather conditions.
A driver may refuse to start work if the weather is sufficiently hazardous at or near the time he is scheduled to begin as to make it unsafe to operate a commercial vehicle on the highways.
A driver cannot speculate unreasonably into the future regarding what the road conditions will be beyond a few hours.
A refusal to drive due to adverse road conditions must be reasonable. The refusal should be based on the driver’s personal observations, weather reports from the radio and television, calls to the Department of Transportation or Highway Patrol, if possible, and information received from other drivers if such information is available.
Additionally, the driver should be able to articulate for a Court the precise facts that led him to believe that it would have been unsafe for him to operate a commercial vehicle on the highways.
If an employer illegally fires or disciplines a driver for refusing to drive a commercial vehicle in dangerous weather, the driver can seek relief under the STAA. A driver must file a complaint with the federal Occupational Safety and Health Administration within 180 days after he receives notice of the illegal discipline. OSHA will investigate a complaint filed under the STAA and thereafter issue a decision. If any party objects within 30 days to OSHA’s decision, the case will be assigned to an Administrative Law Judge for consideration. The STAA provides broad relief to an employee who is successful in proving that he was illegally disciplined or fired. A successful claimant is entitled to reinstatement, expungement of his work record, back pay, other damages, attorney fees and legal costs.
Ultimately, the professional truck driver is the best judge of whether road conditions are so hazardous that he should not drive. He must act reasonably under the circumstances. If he acts reasonably in refusing a to drive due to dangerous weather conditions, and clearly conveys his reasons for refusing to drive to his employer, then the employer may not legally fire or discipline him for refusing to drive because of hazardous road conditions.
Paul O. Taylor is an attorney with the Truckers Justice Center in St. Paul, Minnesota. He can be reached at 651-454-5800.
Want to know more? Get the STAA Handbook from TDU.
Under its record-keeping rules, OSHA requires that employers track and report injuries and illnesses in the workplace. In February 2003 employers will for the first time be posting summary reports (OSHA Form 300-As) that are based on new record-keeping rules put in place last year. Look for these reports on the bulletin board in your workplace starting in February.
Workplace activists, stewards and health and safety committees can use these injury and illness reports to track safety problems in the workplace. The information can also be used to defend grievances or prepare proposals for bargaining. The summaries can be particularly helpful in larger workplaces, where it can be difficult to get a good picture of health and safety problems and trends.
If your workplace has any kind of safety incentive (bonus or bingo programs) policy or discipline policy (such as points for accidents) it could be well worth your time to review the 300-A summaries. These employer policies tend to discourage reporting of illnesses and injuries. The 300-A can be used as evidence to show that the policies are having this illegal dampening effect.
Is Your Employer Covered By the Rules?
Any employer with ten or more employees must keep and post the reports. There are exemptions for certain “low hazard” industries, but very few Teamster employers would qualify.
What Injuries/Illnesses Does Your Employer Have to Record?
Employers have to record all new cases of work-related injuries and illnesses if they involve:
- Restricted work or transfer to another job.
- Days away from work.
- Medical treatment beyond first aid.
- Loss of consciousness.
- A significant injury or illness that has been diagnosed by a physician or other licensed health care professional.
Changes Under the New Rule
The rule sets out situations under which injuries do not have to be recorded, such as someone getting injured in a vehicle accident in a company parking lot while commuting to or from work.
The new rule drops a requirement that all illnesses be recorded, regardless of whether they result in lost time or job transfer. While this is negative, the new rule does state that any “significant” illness must be recorded if a licensed medical provider has diagnosed it. This would include work-related cancer, bone fractures and lung diseases such as silicosis.
The rule does specify certain cases, such as ergonomic problems, that must be indicated separately. This will help track these serious problems. (However there is a delay on this requirement until 2004).
How Have the Forms Changed?
- The 300 Log — kept by the employer throughout the year and used to come up with the 300-A summaries — asks where injuries or illnesses occurred in the workplace (rather than asking for the department in which the injured employee usually works).
- The 300 Log now requires that employees check one of seven boxes to categorize an injury/illness (rather than dividing the form between injuries and illnesses as was done under the old 200 Logs). The categories are:
- musculoskeletal disorder (torn rotator cuff, carpal tunnel syndrome, low back pain, etc.).
- skin disorder
- respiratory condition
- hearing loss
- all other illnesses
Hide and Seek
Many employers are prone to under-reporting injuries and illnesses. It is important to compare what your employer enters on the 300-A reports with information gathered from other sources, such as a rank and file workplace survey.
It is a violation of OSHA regulations to fail to report injuries and illnesses accurately. If your employer is not reporting correctly you can file a complaint with OSHA.
Access to Information
In addition to posting the 300-A Summary in February, employers must provide copies of other materials as set out below. Under the new rules time limits for providing information have been set. The new rules also provide privacy for cases involving HIV, sexual assault and tuberculosis.
- Employers must provide copies of OSHA 300 Logs by the end of the next business day. Those who have a right to request copies of logs include workers and former workers, their personal representatives and union representatives.
- Employers must provide copies of Form 301 Incident Reports — filled out each time there is an incident — by the end of the next business day to workers, former workers or personal representatives.
- Employers must provide copies of Form 301 Incident Reports to union representatives within seven calendar days. They may remove personal information about the employee(s) involved.
- Copies of all reports indicated above must be provided free of charge the first time requested.
Employers must retain injury and illness reporting records for a period of five years.
How to Make the Most of Record-Keeping Rules and Rights
The 300 Logs are helpful, but not a foolproof tool. Workers and local unions who use other workplace health and safety strategies will be in the best position to make use of them. Here are some suggestions.
- Get your local to track health and safety grievances throughout the year. Refer back to them when reviewing the 300-A Summary or the Logs. And/or use 300 Log statistics (if accurate) to back up grievances when they arise.
- Challenge employer tricks that discourage the reporting of injuries and illnesses. Bonus programs, bingo or lotteries that reward workers for not reporting injuries should be fought just as hard as accident “point” systems and other disciplinary polices that discourage workers from reporting injuries. Fight these through bargaining (the union has a right to bargain over these policies, even when the contract is not up) and through organizing.
- Organize worker health and safety surveys. A confidential survey that is organized to get maximum participation is an excellent way to get more detailed information on workplace illness and injuries. Compare your results with the employer’s 300 Log reports.
- Compare the 300-A Summary with the 300 Logs and the Incident Reports. Look for inconsistencies or missing information.
- During OSHA workplace inspections, point out problems with the 300 Logs to OSHA inspectors.