RLA Arbitration Awards Do Not Bar FRSA Complaints

Posted on May 26, 2011 by Charlie Goetsch

Add this to the growing chorus of judicial voices shouting down the bogus "election of remedies" defense raised by railroads. In a cogent decision, Judge Berlin confirms that Federal Rail Safety Act  complaints are independent of Railway Labor Act disciplinary proceedings and cannot be derailed by a RLA award reinstating an employee with back pay.

Here are the facts. Union Pacific employee Robert Powers reported an on the job injury, and his doctor put him on medical leave with medical restrictions. The Railroad secretly videotaped Powers doing certain activities it claimed violated his medical restrictions, and then fired him. Powers filed a FRSA retaliation complaint, and on his behalf the union appealed the termination to a RLA arbitration board. When the RLA Board reinstated Powers with back pay, the Railroad moved to dismiss his FRSA complaint, arguing that his use of the RLA process constituted an "election of remedies" barring a FRSA claim. Judge Berlin soundly rejected that argument. Here are some excerpts from the opinion:

The FRSA requires what it terms an "election of remedies" as follows: "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." 49 U.S.C. § 20109(f). The ultimate question presented here is whether the union's pursuit of a grievance, asserting on Complainant's behalf rights under a collective bargaining agreement, constitutes an election of remedies under the Federal Rail Safety Act and forecloses the present action.

At the RLA arbitration, the union was limited to the remedies that the collective bargaining agreement allowed. Those remedies did not include emotional distress or punitive damages. In contrast, the Federal Rail Safety Act allows these remedies. See 29 U.S.C. §20109(e)(2)(C), (e)(3) (providing compensatory damages plus possible punitive damages not to exceed $250,000).

The FRSA's election of remedies provision could apply only if the remedies available under the collective bargaining agreement are no less than those under the Act, which include compensatory damages and permissible punitive damages of at least $250,000. Nothing on the record suggests the collective bargaining agreement allows for such remedies.

The union's pursuing a grievance did not trigger the election of remedies provision in the Federal Rail Safety Act. It was an act of the union, not of Complainant, and it did not allege an "unlawful act' but was limited to a claimed breach of contract. It was based on the union's choice to pursue an avenue with lesser remedies than those that the statute affords.

I find that Union Pacific construes the election of remedies provision too broadly. Complainant is correct that his union's pursuit of a remedy under the collective bargaining agreement did not trigger the Act's election of remedies provision.

I conclude that, when a union chooses to pursue a grievance on behalf of an employee, it is acting as a union, and that this is distinct from an election of the individual employee to seek a remedy other than under the Federal Rail Safety Act. As the union, not Complainant, pursued the grievance, Complainant did not trigger the election of remedies provision in the Act.

Well said. For the full text of Judge Berlin's decision, click here.

 

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Why Railroad Managers Retaliate

Posted on September 16, 2009 by Charlie Goetsch

Here's an open secret: retaliation is the hallmark of an insecure manager who has no clue how to lead workers and who knows in his heart he is not qualified to be in a position of power.

Insecure rail managers perceive reports of safety concerns or injuries as a personal affront to their authority and react by striking back against the employee. Enlightened managers welcome reports of safety problems as an opportunity to improve conditions and take steps to avoid future injuries. Their response is: "Thank you for bringing that to my attention, we will look into it right away and make the necessary corrections to ensure something like that never happens again." But instead of treating a safety or injury report as an opportunity to correct an underlying problem, insecure managers "shoot the messenger" by automatically retaliating against the employee.

The problem is, reporting safety concerns and injuries are now "protected activities" under the Federal Rail Safety Act and cannot be subject to any adverse consequences such as discipline or discrimination. And any such retaliation against employees who report injuries or safety concerns is illegal under the FRSA and will result in punitive damages awards.

So here's how railroads can innoculate themselves against expensive FRSA retaliation claims: treat employee injuries and safety complaints as neutral events. That means changing your management culture so that safety complaints and injury reports are viewed as neutral events that do not provoke adverse consequences.

A corollary of this means changing the financial incentives for railroad managers. The Federal Rail Administration has noted that the annual compensation of managers is affected by the number of injuries reported by employees under their supervision.  Is it any wonder then that rail managers react to the report of an injury as if the employee is taking money out of the manager's pocket? Is it any surprise managers find ways to discourage and chill the reporting of injurires? Instead, why not base the financial compensation of rail managers on how they correct the underlying problems that lead to an injury? So that instead of focusing on disciplining the injured employee, managers focus on eliminating the risk of future injuries?

So that's the secret that will put attorneys like me out of the FRSA enforcement business.  See, e.g., $300,000 in punitives against Metro North Railroad.  All it takes is a change in the culture of rail management from one of retaliation to one of risk remediation. Railroads can do it the easy way (voluntarily) or the hard way (getting hammered by FRSA damages), but one way or the other, the culture of rail management will change. And for that, we can thank the FRSA.

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