Fired Union Activist Lacks Retaliation Claim Against Railroad

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By Kevin McGowan

A railroad union activist failed to prove BNSF Railway Co. fired him because of his advocacy on safety issues rather than his alleged harassment of a co-worker and threat against a supervisor ( Gunderson v. BNSF Ry. Co. , 2017 BL 75335, 8th Cir., No. 15-2905, 3/10/17 ).

Paul Gunderson lacks a Federal Rail Safety Act claim because his protected activities weren’t a “contributing factor” in his discharge, the U.S. Court of Appeals for the Eighth Circuit decided March 10. His safety-related advocacy was “remote in time and disconnected” from the disciplinary proceedings that led to his termination, the court said.

The court “got it wrong,” but it’s “too early” to say if Gunderson might seek further appellate review, Frederic Bremseth, a Minnetonka, Minn., lawyer who represented him, told Bloomberg BNA March 10.

Gunderson’s options include asking the full Eighth Circuit to rehear the case or seeking U.S. Supreme Court review.

His case is “factually intensive,” as retaliation claims tend to be, Bremseth said.

Workers alleging they were fired in retaliation for safety complaints must show a causal link between their protected conduct and their discharge. Even if a link exists, the railroad can defeat the whistle-blower claim if it shows the worker would have been fired for the alleged misconduct, regardless of the protected activity.

An attorney representing BNSF declined to comment March 10.

Years as Union Rep

Gunderson alleged BNSF terminated him in 2009 because of his years of advocacy on workplace safety issues in the Willmar, Minn., yard as local chairman for United Transportation Union Local 1177.

The railroad investigated after a fellow union member said Gunderson was harassing him about a complaint the co-worker filed against the Willmar yardmaster. When a supervisor suspended Gunderson pending completion of the probe, he told the supervisor, “Sometimes things can come back to hurt you.”

A railroad industry arbitration panel rejected Gunderson’s claim the “real reason” that BNSF investigated and fired him was his “adversarial relationship” with the railroad stemming from his safety advocacy as a union representative.

The Labor Department, after hearing Gunderson’s administrative complaint, found his worker safety activities “played no role in BNSF’s decision” to terminate him.

A federal district court ruled that although Gunderson engaged in “protected activity” under the railroad safety law, he couldn’t show that activity contributed to BNSF’s discharge decision.

No Link Shown

The disciplinary proceedings that led to Gunderson’s termination were “completely unrelated” to his safety advocacy, the Eighth Circuit affirmed.

The alleged harassment and threats were “intervening” events that justified BNSF’s investigation, Judge James B. Loken wrote in an opinion joined by Judges Lavenski R. Smith and Steven M. Colloton.

Judges don’t sit as a “super-personnel department” to determine if discharge was appropriate discipline, the court said. Gunderson failed to show BNSF didn’t honestly believe its reasons for termination, which were reached only after hearings at which Gunderson had legal representation, the court said.

The Bremseth Law Firm and Tello & Associates represented Gunderson. Jones Day and Arthur & Chapman represented BNSF.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

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