WHISTLEBLOWER PROTECTION - ELECTION OF REMEDIES

Whistleblower Protection Shield - FRSA
RAILROAD RETALIATION REPORT - XI
Written By: James L. Farina, Alan J. Fisher, Frank E. Van Bree and Steven P. Garmisa

Section 20109 of the Federal Rail Safety Act has an “Election of Remedies” provision. This part of Section 20109 says: “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.”

If you filed a lawsuit under a state law alleging retaliatory discharge, then the Election of Remedies provision would prevent you from also filing a complaint with the OSHA under Section 20109. You would have “elected” to pursue a remedy “for the same allegedly unlawful act of the railroad” under the State statute. Similarly, if you filed a claim alleging retaliatory discharge under some other Federal law, such as the Civil Rights statutes, you could not also pursue a complaint with OSHA under Section 20109.

But what if you pursue your rights in arbitration under the Railway Labor Act (“RLA”) for breach of a collective bargaining agreement (“CBA”), and also send a complaint to OSHA alleging violation of Section 20109? Would the “Election of Remedies” provision bar the OSHA complaint? The answer is not clear-cut.

We believe that the Election of Remedies provision does not bar a railroad employee from pursuing both arbitration under the RLA and a complaint with OSHA for retaliatory discharge under Section 20109. However, we cannot predict how OSHA or judges will interpret the Election of Remedies provision. The most that attorneys can do, as Justice Oliver Wendell Holmes Jr. wrote many years ago, is give “prophecies” about what judges will eventually say the law is. With that cautionary warning, here are four reasons why we think that the Election of Remedies provision in Section 20109 should not bar an employee from pursuing a claim with OSHA after seeking arbitration under the Railway Labor Act.

Reason One '

The initial version of Section 20109 said: “A dispute, grievance, or claim arising under this section is subject to resolution under section 3 of the Railway Labor Act. However, Congress dropped that section when, in August 2007, it authorized railroad employees to pursue claims with OSHA.

Significantly, the old version of Section 20109 also contained an Election of Remedies provision that said: “An employee of a railroad carrier may not seek protection under both this section and another provision of the law for the same allegedly unlawful act of the carrier.”

Because claims under the initial version of Section 20109 were all “subject to arbitration under section 3 of the Railway Labor Act,” the reference in the Election of Remedies provision to claims pursued under “another provision of the law,” clearly does not include reference to arbitration under the Railway Labor Act.

Reason Two

Given that Congress eliminated the section that required arbitration of alleged violations of Section 20109, the correct analysis of the Election of Remedies provision should come from the United States Supreme Court’s decision in Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)

In that case, Harrell Alexander Sr. – a non-railroad employee who belonged to a union – filed a lawsuit alleging racial discrimination by his employer. The lawsuit was based on a federal statute called Title VII. Before he filed the lawsuit, Alexander pursued arbitration proceedings under a collective bargaining agreement.

At the arbitration hearing, Alexander alleged he was discharged because of racial discrimination. But the arbitrator ruled that Alexander failed to prove racial discrimination. Although the arbitrator ruled against Alexander in his arbitration dispute, the Equal Opportunity Employment Commission gave Alexander permission to file a federal lawsuit.

However, the Federal District Court trial judge dismissed Alexander’s lawsuit. According to the judge, the lawsuit was barred because Alexander previously submitted his discrimination claim to arbitration, and the arbitrator ruled against him.

The Court of Appeals then affirmed the District Court decision, but the United States Supreme Court reversed that decision and ruled for Alexander. Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974). As the Supreme Court explained:

“The District Court relied in part on the doctrine of election of remedies. That doctrine, which refers to situations where an individual pursues remedies that are legally or factually inconsistent, has no application in the present context. “In submitting his grievance to arbitration, an employee seeks to vindicate his contractual right under a collective-bargaining agreement. By contrast, in filing a lawsuit under Title VII, an employee asserts independent statutory rights accorded by Congress.

“The distinctly separate nature of these contractual and statutory rights is not vitiated [meaning eliminated] merely because both were violated as a result of the same factual occurrence. And certainly no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.” Alexander v. Gardner-Denver Co., 415 U.S. at 49-51.

Based on this analysis, the Supreme Court ruled that Alexander’s lawsuit was not barred by the doctrine of “Election of Remedies.” Using the same reasoning, the Election of Remedies provision in Section 20109 should not apply when an employee (1) demands arbitration under a CBA, and (2) also pursues a separate claim, with OSHA, to vindicate an independent statutory right under Section 20109.

Reason Three

The doctrine of Election of Remedies assumes that there are two remedies for the same alleged conduct. But a railroad employee who is fired for engaging in activity that is protected under Section 20190 does not have a remedy in arbitration proceedings under the Railway Labor Act.

Specifically, if an employee gets fired for engaging in activities that are protected under Section 20109, then violation of that statute would not be a “minor dispute” that could be arbitrated under the RLA. As a result, the RLA would not provide a remedy for an alleged violation of Section 20109.

As the United States Supreme Court explained in Hawaiian Airlines v. Norris, 512 U.S. 246 (1994), the RLA provides the “mandatory” mechanism for resolving “minor disputes” between railroads or airlines and their employees. The Supreme Court explained, “Minor disputes involve controversies over the meaning of an existing collective bargaining agreement in a particular fact situation.”

In Hawaiian Airlines, the Supreme Court concluded that, “the RLA’s mechanism for resolving minor disputes does not pre-empt meaning eliminate] causes of action [meaning claims or complaints] to enforce rights that are independent of the CBA.” Accordingly, it is our opinion that arbitration under the RLA does not apply to a claim that is based in Section 20109, because Section 20109 provides “rights that are independent of the CBA.”

Since arbitration under the RLA is not an alternative remedy for breach of Section 20109, the Election of Remedies provision should not bar an employee from pursuing both arbitration and a complaint with OSHA.

Reason Four

The Election of Remedies provision should not apply because the typical grievance/arbitration – where the employee merely alleges breach of a CBA, on the grounds that he or she was fired without cause – does not amount to an attempt to “seek protection” for an “allegedly unlawful act of the railroad carrier.”

Remember, the Election of Remedies provision in Section 20109 says: “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.” If a railroad breaches a CBA by firing an employee without cause, this is a breach of contract, but it is not an “unlawful act.”

The U.S. Court of Appeals explained in Benderson Development Company v. United States Postal Service, “To breach a contract is not unlawful; the breach only begets a remedy in law or in equity.” 998 F.2d 959, 962 (1993). This means that when an employee seeks arbitration under the RLA – based on the allegation that she or he was fired without cause, in violation of the terms of a collective bargaining agreement – then the employee has not sought “protection” under “another provision of law” for some “allegedly unlawful act of the railroad carrier.”

As a result, the Election of Remedies provision should not bar a Section 20109 retaliation claim in cases where the employee first pursued arbitration for alleged breach of contract.

Conclusion W

e cannot prophesize how judges will interpret the Election of Remedies provision. Depending on how judges rule, you may have to pick between arbitration and an OSHA complaint. But as with so many other things involving Section 20109, be cautious and confer with your Railroad Union Representative and FELA Designated Legal Counsel before taking action.

If you or a loved one have suffered a serious injury or wrongful death at work on the railroad, or been retaliated against at work for being a Whistleblower, call an experienced FELA personal injury lawyer / train accident lawyer at Hoey & Farina at 1-888-425-1212, or complete this form, for your FREE CONSULTATION. Hoey & Farina represents clients throughout the United States.

 

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