all right next we have the case of ben wench versus director of w c p n c s x transportation inc may please the court tucker birch for bin which the fitness of for duty of the man at the controls of a train is its most important safety feature and it's our position in this appeal that at a minimum a train operators report of a legitimate illness is a protected report of a hazardous safety condition when as here even the railroad admits that they wouldn't allow the railroad this is impaired employee to operate or work in close proximity to trains in that condition for safety reasons i don't disagree that it could be hazardous for a sick employee to work on the railroad but i'm concerned about the purpose of the statute and whether this is a hazardous safety condition that the set statute was meant to address because i think the statute was directed toward conditions that occur in the railyard or something on the job can you respond to that us sic employee at the controls is certainly at the job and first say that's not how the board rule that's not how they stated it they left open the possibility that had he provided more information and at the time of the call that he wouldn't have been  second given congress long history of protecting employees from being all in or around or operating trains in an impaired condition because at the railroad even a momentary lapse of coordination or attention can have catastrophic consequences since one thousand no seven we set we don't want employees who are fifty to be on these trains and over time those have been  expanded so now we have pilots we have air traffic controllers we have truck drivers all who have these protections these hours of service protection is to prevent inattention that originated with rare wrote workers and one thou a safety hazard to the public and to the other workers there but i'm not sure that this particular statute that you are trying to use accomplishes that function i wonder if you could speak to what the third circuit said about the statute in the trans hudson case where among other things the third circuit said you know one of the big problems would be that we would have to accept this idea that congress somehow silently created a statute that allowed railroad workers to take indefinite sick leave and that seems like a far leap to take especially when we have the f m l a and other statutes of that nature it in qualify for a from a law he had a serious medical condition but he only got two days off he didn't make the seventy two hour requirement answers that question second well it doesn't answer the question because the question is indefinite medical leave the way that you're asking us to construe the statute would allow for indefinite medical leave and that does seem contrary to congress haven't enacted specific statutes that are applicable to workers that limit the amount of leave that employer is obligated to provide to twelve weeks in a twelve month period but i mean that's what i want you to address if if you don't mind that well the path decision dealt with a different provision the one that reporting an unsafe condition and i have another question for you yes under b to c one of the requirements is that the employer or possible has notified the robert carrier of the existence of the hazardous condition and the intention not to perform further work or not to authorize the use of the hazardous equipment tracker structures unless the condition is corrected immediately or the equipment track or structures are repaired properly or replaced so one part of it spece specifically deals with hazardous equipment tractor structures and the other part requires that the condition be corrected immediately so i could understand how how let's say that there were somebody else who was sick at the railroad and was impaired and doing his job and your client reported that as a safety condition there that could be corrected immediately by the railroad by requiring that person to leave but how does the railroad correct immediately the situation of your client being sick in such a way that would allow your client to report back to work immediately they call another train operator to do that how does that allow you and but the stat hat how does that allow your client though to report back to work immedia under here and we were discussing is the one says reporting in good faith the hazardous safety condition you're asking me about b two b two specifically does not apply i want to know what you're doing or or what what these cases have done is they've borrowed from bt and they've brought it up to a provision that the congress has said specifically don't apply those extra criteria to this type of reporting i don't have a problem with the interpretation that it has to be some sort of and really don't disagree that has to have some connection to the railroad the path case dealing in the stokes case dealing with someone who didn't show up for a medical appointment away from the job that that's not the same thing this involves the most critical aspect of operations and when congress passed about what you just said a minute ago as i understand and i think you just said you're travelling under little be ebay reporting and also be refusing and you're saying that either one of those would have been a protected activity here but it seems to me in the statute that the big big and  big and big b in parentheses are stated in the disjunctive and in this case he didn't just call to report a condition that he observed that he thought the railroad should fix he refused to come to work and that's what he was fired for well so i'm i'm having trouble understanding how you can circumvent all the requirements under big b by saying that he reported a condition and that was sufficient in this case the minimum bail billeted policy covers non compensated absences the only non compensated absence or the only non compensated report that you can make that's going to get punishment is for being sick as they a it's the report and the failure to give more information in the report but here but here we are not sure dressing my question here we have a refusal to work he called and he didn't come into work and you never heard it first  then he didn't he first he reports then he doesn't come it and then he continues reporting he continues reporting all the way up until he is terminated months later and reporting as used in the statute it includes any and all reporting of hazardous safety conditions and to me your argument would allow someone to completely ignore all the other requirements under b because they could just say well i reported doesn't matter that i refused to come to work i reported and therefore i'm protected well in this case his reporting goes beyond his reporting as not only does he give the breaking news that i'm sick he gives the update at eleven here are the medical records he gives more information this is a safety has i got problems when they are hearing and they are but really but i think i think what judge prior is asking is regardless of what else he does how does that show compliance with the requirements under be to well they fired him for his report of a sickness that is part of it this is a contributing factor standard this is the in whole or in part well they fired him for an unexcused absence for not coming to work for not coming to work when he reported that he was sick because only absences for sickness are counted against him and punished you can't have he could be marked off in any other way reporting any other reason other than sickness as the a l j found but for that he would not have been brought under any scrutiny at all and therefore we wouldn't be here thank  my name is interested of counsel for respondent united states department of labor i'll be using eight minutes of reserving seven for the intervenor this case is about whether which is ten second phone call giving his name identification number and saying he need to be marked off sick i sufficient to invoke the whistleblower employee protections of the federal road safety act the courts affirm that mr review boards decision for two main reasons first the the board correctly determine that winch is exceptionally brief phone call could not even under the most liberal construction constitute a report of a hazardous condition the second the board also correctly determine that which is absence from work was not protected work refusal because the statute requires where possible that employees first notify their their railroad employer of the hazard before stopping work and the record lacks any evidence that it was not possible for winch to provide that notice so mr charge if you're asking us really to affirm the board on the grounds the board decided to keep my correct that's correct you're not asking us to take any broader view of the statutory scheme and make any pruner pronouncement no you're right i think what you're frank to is whether an employee could ever report a non work related illness as a hazard but i think it's unnecessary for the court to reach that ruling train every case allow us to do it i believe  sick without providing notice to their employer of the connection between their absence and a safety concern in short the l j committed some clear legal error here i think this case largely turns on the definition of report so with respect to the protect activity of reporting in good faith a hazardous safety or security condition the statute plainly requires that employee actually put the employer on notice of a hazardous condition so when she advocates for interpretation  report that is largely void of any meaning however congress's use of the term report implies at least the conveyance of a minimal amount of information namely just basic information about the hazardous safety or security condition so as the board put it even the most liberal construction that term requires that some information be reported pointing to the hazardous condition in this case to the employee really have any opportunity to do that there  one that i think the burden is on the employee to make the protected report if he wants to invoke the protections of the act to there's no evidence that the employee didn't have the possibility to notify it's it's the context it's everything that as long as information is conveyed well at least that at least at the point when dr horsley faxed the medical records the railroad had all of the information of the about the hazardous safety condition isn't that right that's true but the railroad did not receive that information until after so i think there's there's after the absence as so i think there's two reasons why the report has to be limited and it was only argued that the protected report was calling it a marking of sick and the absence itself but even if you consider the other information it came after the absence and the  so contrary to what when charges because the only protect a report being alleged is the phone call it the fact finder must necessarily focus on the communication made to the employer in that call you can't rely on later information  and then with respect to the protect activity refusing to work because there are two possibly relevant sections of subsection b which were alleged here again all the information became available to the employer after the work refusal and again because the statute lays out those through acquirements which did not meet the notification requirement essentially the board was interpretating no physician requirement to be the same as the reporting requirement the board noted  good morning your honor may it please the court chaplain holmes for the interveners the essex transportation i'd like to go first to the questions that judge rosenbaum and judge pryor were asking my colleague mr birch i think there is a square peg in a round hole problem  here this statute the refusal to work first of all it's clearly a refusal to work case i think you're exactly right judge rosenbaum that you can't allow an employee to circumvent all those requirements when in fact they do refuse to work by claiming it's simply a report of a hazardous safety mean that was simply said he didn't want to do anything more than that it's a very narrow ruling that's fact downed i think that's right and i think i think that that on its own a basis i think to from the agency right you have a very narrow fact found ruling saying whatever this statute means this isn't enough i would did though want to be responsive to the questions of judge rosenbaum and prior regarding what i think the statute means we certainly don't conceive that this would apply in statute and it judge pryor i'd also like to address your question to mr tardif i don't think there's any question that notification could occur over multiple conversations i think that's right but they have to occur before the refusal i think that's the problem i think here the only thing that happens before the refusal is a ten second call with name i d number mark me off sick and that's not enough as you suggest a judge rosenbaum that the thrust of  the b one b requirements or i'm sorry the b two requirements which applied of the b one b protected conduct just to make it a little more confusing is that there's a dial up that an employee doesn't unilaterally get to decide i'm not going to work there's a dialogue that goes back and forth there absent further questions on that issue i would like to briefly address the exhaustion question simply because we did brief it and as this court noted in florida department of labor be u s steel well which is in our briefs where where there's an underlying legal issue that can be resolved with the the unquestioned facts there is it's at least something the court can consider what i will say about this the only a decision that i'm aware of that addresses the standard for exhaustion in the first a context is a case called foster versus b m s up the district court decision was cited in our briefs the eighth circuit has since affirmed eight six six and thirty nine six two and the foster case adopted essential assumed without deciding that the title seven standard should apply under title seven as we all know if i file a race discrimination claim in at the city and then i try to bring in gender discrimination in court and i can't do that because it's not exhausted and i think if you look here at the factual findings there's no question that that's what happened here in a straight a law judge opinion at thirty to thirty one he made the following findings and i apologize but i'm trying to read accurately the complainant argued only that markoff was following a doctor's orders at osha the compound the hazardous condition claim was quote not pursued or even raised at osha neither party address factual question not presented by the previous theory different law a different fact that's a classic case of failure to exhaust where the able to go wrong on this he is the pleading standard the standard for amending pleadings not the standard for e focus for example on the prejudice to my client and he said you're not prejudice you've got to you've got to fully litigate the issue well it's not the right question you don't ask about prejudice when you're looking at exhaustion you ask it's not designed to protect us it's designed to correct and they did not address any number of other issues that we raised of course but i do think this one is somewhat different in that it would be factual findings which are not challenged by anybody they weren't challenged by the administrators  third circuit as it was to not applied in on work related injuries and so the theory changed but there's no question i think about that and i think the thrust although they do deal with the two i think the thrust of both the pa thank you for those reasons we would respectfully request that the court affirm the administrative  getting to the grounds that the stated reasons that the court it was because of the very brief telephone conversation which they described as a dialogue with the l j ask questions about until he understood was that this isn't much of a dialogue at all this is where the employees from you know all the eastern united states all twenty six states and the district of columbia will call in to and report and say you know mark me off for this reason and the purpose of that is is not to find out this it in nine one one call where they're saying you know what your problem oh my goodness what can we do to help this is a situation where the employee marks off and all the crew call or cares about is ok who are you you know what job did you have so that they can find the replacement that's all they care about this was a two way call and although that is true that he did not describe all of the details of his illness he did tell them that he was sick the railroad knew that he was a remote control operator who jogs beside moving trains while operating the locomotive on a belt pack and that anyone who sit certainly may  be a hazard in that work environment and they didn't ask him many questions at that time as soon as more information became available he certainly did provide it to them the blood test results that showed that he was suffering from a viral infection well that blood isn't drawn until the next morning so he has the infection when they would have him out there and say he's unprotected while operating a moving train by remote control and running beside it pulling a cut lever and stopping it so that the cars can go on and be switched that would be the most hazardous and it's inconceivable that congress intended to protect employees if their onset of symptoms happened when they get to work if this had happened an hour into work they're saying he's protected but if it happens the first wave of the illness happens on his way to work and he calls in sick just minutes before he's unprotected the purpose of the stat he just said under two zero one zero one is to protect safety and all rail operations to prevent accidents to prevent real and that's exactly what his reporting off sick did is far as exhaustion we brief this it our reply brief eleven through thirteen the cases the facts in the ruling all favor us one reporting in good faith the hazardous safety condition doesn't say that the report is a one and done now or never report and by the time he finished with all his reporting and before they terminated him they had all of the details that showed that he was objective lee ilk and these were so persuasive that even the charging officer said yes a man in that condition should not be operating trains if i saw him out there i wouldn't even allow him on the property i would send him off the property and that's what the evidence is in this case and the law says that you don't add language to a statute but that's what they're doing they're saying you have to report a hazardous safety condition in good faith but you have to report it as a hazardous safety condition and you have to do it all at once you can't you can't come back and supplement and to require employees to