Railroad Worker's FRSA Retaliation Action Not Barred by RLA Grievance

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By Jay-Anne B. Casuga  

Jan. 15 --A railroad trackman in Illinois who alleged he was fired after reporting a work-related injury may proceed with a Federal Railroad Safety Act retaliation lawsuit even though he previously had initiated grievance arbitration proceedings pursuant to the Railway Labor Act, the U.S. Court of Appeals for the Seventh Circuit ruled Jan. 14 (Reed v. Norfolk S. Ry., 2014 BL 10187, 7th Cir., No. 13-2307, 1/14/14).

Affirming the denial of summary judgment to Norfolk Southern Railway Co., the Seventh Circuit found that Justin Reed's participation in mandatory arbitration did not trigger the FRSA's election-of-remedies provision, which prohibits employees from seeking protection under the FRSA and “another provision of law for the same allegedly unlawful act of the railroad carrier.”

The court said the RLA “merely afford[s] a statutory framework for collective bargaining and any disputes that arise therefrom.” The law provides Reed “no substantive protections at all,” it said.

By bringing his grievance in an arbitral forum, the court said, Reed sought protection under an applicable collective bargaining agreement, and not under the RLA.

“The election-of-remedies provision only bars railroad employees from seeking duplicative relief under overlapping antiretaliation or whistleblower statutes; it does not diminish their rights or remedies under collective bargaining agreements in any way,” the court said. “The plain meaning of the [FRSA] therefore tells us that Reed is not precluded from obtaining relief under FRSA simply because he appealed his grievance to [an arbitral board].”

Judge Joel M. Flaum wrote the opinion, joined by Judges William J. Bauer and Joseph Van Bokkelen.

Worker Experienced 'Severe' Abdominal Pain

According to the court, the Brotherhood of Maintenance of Way Employees Division of the International Brotherhood of Teamsters had a collective bargaining agreement with Norfolk Southern.

In April 2009, Reed had a “bout of severe abdominal pain” at work. He notified his supervisor, and company officials allegedly pressured him into signing a statement disclaiming a work injury. Thereafter, Reed took approximately seven months of medical leave.

When he returned to work, Reed admitted to a Norfolk Southern claims agent that he believed his injury was work-related. The company subsequently fired Reed because of his inconsistent statements regarding the abdominal pain and for violating its policy requiring same-day reporting of injuries.

Worker Initiated Arbitration, Administrative Actions

As a union member, Reed challenged his dismissal to Public Law Board 6394, an arbitral board, pursuant to Section 3 of the RLA (45 U.S.C. § 153).

In addition, Reed filed an administrative FRSA complaint with the Labor Department's Occupational Safety and Health Administration, alleging that he was unlawfully fired in retaliation for notifying or attempting to notify Norfolk Southern about a work-related personal injury. He ultimately brought suit in the U.S. District Court for the Northern District of Illinois.

“The election-of-remedies provision only bars railroad employees from seeking duplicative relief under overlapping antiretaliation or whistleblower statutes; it does not diminish their rights or remedies under collective bargaining agreements in any way,” the Seventh Circuit said.  

After the Public Law Board found that Reed should be reinstated, the railway moved for summary judgment in Reed's FRSA action.

The company argued that Reed's decision to arbitrate his grievance under the RLA triggered the FRSA's election-of-remedies provision (29 U.S.C. § 20109(f)), which states:

“An employee may not seek protection under both this section and another provision of law for the same allegedly unlawful act of the railroad carrier.”  


The district court denied summary judgment to Norfolk Southern. Given that the RLA requires arbitration of railway employee grievances stemming from a bargaining agreement, the court said Reed's arbitration proceedings could not be considered an “election” of remedies within the meaning of the FRSA.

Moreover, the court held that a bargaining agreement was not “another provision of law” because it “arose out of a private agreement,” and not a federal or state law.

RLA Not a 'Provision of Law' Under FRSA

On appeal, the Seventh Circuit affirmed that the FRSA's election-of-remedies provision does not bar Reed from arbitrating his grievance pursuant to the RLA and maintaining an FRSA retaliation action. However, it said its reasoning differs from that of the district court.

The court rejected Norfolk Southern's contention that the RLA is a “provision of law” within the meaning of the FRSA based on the U.S. Supreme Court's decision in Norfolk & Western Railway Co. v. American Train Dispatchers Ass'n, 499 U.S. 117, 136 LRRM 2727 (1991).

In that case, the appeals court said, the justices held that the RLA fell within the scope of the phrase “all other law” in an Interstate Commerce Act provision regarding abrogation of bargaining agreements.

“Just because the Supreme Court treated the [RLA] as 'law' for Interstate Commerce Act purposes, however, does not mean that we must treat the Act as 'law' for FRSA purposes,” the Seventh Circuit said.

It explained that Dispatchers “does not lay down a mandatory rule about the scope of the term 'law' in federal statutes,” and that the FRSA “must be read on its own terms.”

Employees Don't 'Seek Protection' Under RLA

Even assuming for the sake of argument that the RLA is a “provision of law” within the meaning of the FRSA's election-of-remedies provision, the Seventh Circuit pointed out that Reed did not “seek protection” under the RLA.

“Giving those words their plain meaning, we cannot see how he did,” it said.

With the exception of a “few substantive obligations,” such as participation in mandatory arbitration, the RLA provides a employee like Reed “no protection at all,” the court said.

Instead, it “merely instructs him to bring any grievances that cannot be resolved on-property to a specific forum,” which in this case was Public Law Board 6394, the court said.

“[W[here, as here, the railroad employee's claim is based only on rights set forth in his collective bargaining agreement, we conclude that he is seeking protection under that agreement and not under the [RLA],” the court said.

The court rejected Norfolk's Southern attempt to analogize the RLA with 42 U.S.C. § 1983, which “likewise is not a source of substantive rights.”

“Section 1983 provides a plaintiff with a cause of action for the deprivation of federal constitutional or statutory rights,” it said. “The [RLA] directs a claimant to appeal to a particular arbitral forum. Even if we were to say, colloquially, that plaintiffs 'seek protection' under [Section] 1983 (and not the applicable substantive federal right they aim to vindicate), we do not see how the same is true of the [RLA].”

The Seventh Circuit said its conclusion is supported by the FRSA's legislative history. It pointed out that when the law was first enacted, the election-of-remedies provision stated:

“Whenever an employee of a railroad is afforded protection under this section and under any other provision of law in connection with the same allegedly unlawful act of an employer, if such employee seeks protection he must elect either to seek relief pursuant to this section or pursuant to such other provision of law.”  


“The original phrasing emphasizes that one can only seek protection under a provision or law that itself affords protection for retaliatory acts,” the court said.

The RLA, it repeated, affords no such protection.

Furthermore, the court said, Congress amended the FRSA in 2007 to disclaim “any intention to diminish railway employees' rights.” It said that change “fits snugly” with its interpretation of the election-of-remedies provision.

Charles A. Collins of Saint Paul, Minn., David L. Lee of Chicago and Harry W. Zanville of San Diego represented Reed. James S. Whitehead of Sidley Austin in Chicago represented the railway.


To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the opinion is available at http://www.bloomberglaw.com/public/document/Justin_Reed_v_Norfolk_Southern_Railway_Compa_Docket_No_1302307_7t.

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