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Conrail Must Reinstate Conductor While Appealing Retaliation Verdict, ARB Rules

The U.S. Department of Labor’s Administrative Review Board (ARB) refused to delay the reinstatement of a train conductor who was fired after repeatedly reporting safety violations.

Consolidated Rail Corp. (Conrail) had asked the ARB to delay the rehiring of Mark Bailey while it appealed Mr. Bailey’s success before a lower-level judge, who found Conrail liable for retaliation under the Federal Railroad Safety Act (FRSA).  But such delays are allowed only in “exceptional circumstances,” the panel held.

Since no such circumstances apply, Conrail must allow Mr. Bailey to return to work while the appeal is in progress.

The ARB’s ruling was routine, but it showed that the panel is steadfast in demanding reinstatement as a “make whole” measure under the FRSA, even when an employer is adamantly opposed.

Conrail had claimed that Mr. Bailey violated the company’s policy against workplace violence — by getting into a shouting match with his supervisor — and that he still presented a “threat of workplace violence.”

The ARB disagreed, noting a finding that the supervisor had triggered the earlier confrontation, not Mr. Bailey. Conrail must rehire the conductor to prevent further “emotional and financial hardship” for Mr. Bailey, it said.

The Employment Law Group® law firm’s whistleblower attorneys have helped many clients file suit against employers that fraudulently bill the U.S. government, and have established favorable precedents under the retaliation provision of the False Claims Act.

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