The coalition of unions on Metro-North Railroad, the Metro-North Labor Council, recently met with the top administrators and whistleblower investigators from OSHA’s Regions 1 and Region 2. Every craft on the Railroad was represented by at least one rail labor official. The spokesman for OSHA was Region 2 Supervisory Investigator Michael Mabee. It was an illuminating meeting for both sides. The rail labor reps described their frustration with the Railroad’s hostile management culture, and the OSHA administrators were able to clarify their role in applying this novel whistleblower statute.

Because it is new, the FRSA raises many questions. But undoubtedly one of the great unanswered questions presented by the FRSA is the meaning of subsection (f), entitled "Election of Remedies." There are no Administrative Law Judge or federal court decisions interpreting what the language of subsection (f) means. However, a pattern is beginning to emerge nationwide. Taking advantage of the void in case law, and desperate to deflect the force of the FRSA, the railroads obviously have gotten together and agreed to press a baseless interpretation of subsection (f): namely, that an employee’s participation in the Railway Labor Act disciplinary process constitutes an "election of remedies" that eliminates the employee’s rights under the FRSA. My response is, nice try guys, but that’s not what the language of subsection (f) says either in isolation or when read in the full context of the FRSA statute.

We all know that when it comes to statutory construction, the plain meaning of the text controls. But we tend to forget another basic principle, namely that the statute is the text itself, not the title given to the section or to the subsections within the statute. And because the title is not part of the statute’s text, it cannot be used to undo the plain meaning of the text. In pressing their baseless interpretation of subsection (f), the railroads are conveniently ignoring these basic principles of statutory interpretation.

Yes, FRSA subsection (f) is entitled "Election Of Remedies." But that subsection does not actually use the term "remedy" in its text. Nor does the phrase "election of remedies" appear anywhere in the text. The actual text of subsection (f) reads in full:

"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."

That is, an employee may not seek protection under both the FRSA and another statute for the same unlawful act of the railroad. The key phrases here are "may not seek protection" and "for the same allegedly unlawful act." Let’s take a look at the plain meaning of that statutory language viewed on its own and in the full context of the other FRSA subsections.


For a railroad to file a disciplinary charge against an employee is not it itself an "unlawful act" (it is legal for a railroad to file disciplinary charges under the RLA, and it happens hundreds of times a day). Filing a disciplinary charge is only an "unlawful act" if it is done in retaliation for an employee engaging in activities specifically protected by the FRSA. That is, the act of disciplining is "unlawful" only if it is done with an intent to retaliate for the employee’s protected activity. Absent such an intent to retaliate, there is no "unlawful act" for the FRSA to protect against.


FRSA subsection (f) only states that an employee may not seek "protection" under the FRSA and another provision of law "for the same unlawful act." It does not say an employee may not seek remedies under both this section and another provision of law. Congress certainly could have stated that an employee can not seek remedies under both the FRSA and another law, but chose not to do so. Instead Congress only referred to protection under the FRSA. The only unlawful act that the FRSA can or does protect against is whistleblower retaliation. To seek protection from unlawful whistleblower retaliation means to invoke the protection of a whistleblower statute. Because an employee can seek protection under only one whistleblower protection statute, the employee must elect which whistleblower retaliation protection statute he is invoking.

And in fact that is how OSHA applies the FRSA.  After OSHA receives a FRSA complaint, it requires the employee to fill out and return an "Election of Remedies" form. The form requires the employee to elect the protection of one specific whistleblower protection statute. The explanatory cover letter that accompanies the form quotes FRSA subsection (f) and then points out that because the employee’s complaint could be investigated by OSHA "under several different" whistleblower laws, the employee must chose the whistleblower law under which he wants OSHA to proceed. The Railway Labor Act is not one of the laws listed for election by the employee. Once the employee elects a specific whistleblower law, OSHA does not concern itself with whether a Railway Labor Act matter is pending because the RLA is not a whistleblower protection statute. OSHA proceeds with its whistleblower retaliation investigation regardless of whether any RLA process is unfolding at the same time.


The Railway Labor Act has no whistleblower protection provision, 45 USC 151 et seq. It is not a whistleblower protection statute. The purpose of a Railway Labor Act disciplinary proceeding is to interpret and apply the collective bargaining agreement, not to protect whistleblowers. A RLA proceeding can only rule on the merits of the underlying collective bargaining agreement disciplinary charge. It can not and does not address whether the railroad acted unlawfully by retaliating for whistleblower activity protected by the FRSA. The final result of a RLA proceeding is not based on any finding of whistleblower retaliation.


The United States Supreme Court has stressed time and again that statutory construction is a "holistic endeavor." The language of a statute only has meaning within the context of the broader statute, and courts "must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." A statute’s text must be examined in the context of the plain meaning of its related statutory provisions.

Here, there are three FRSA subsections that must be read together and harmonized: subsection (f) entitled Election of Remedies, subsection (g) entitled No Preemption, and subsection (h) entitled Rights Retained by Employee.

Subsection (g) states that "Nothing in this section preempts or diminishes any other safeguards against discrimination, demotion, discharge, suspension, threats, harassment, reprimand, retaliation, or any other manner of discrimination provided by Federal or State law." The phrase "nothing in this section" means the entire FRSA section and all its subsections. "Nothing in this section" means nothing in subsection (f) can be used to preempt or diminish such safeguards. The Railway Labor Act is a federal law that contains such safeguards. Thus nothing in the FRSA can preempt or diminish an employee’s safeguards under the Railway Labor Act. The text of (f) must be read in conjunction with (g). The two subsections must be harmonized so as to avoid a fatal conflict that cancels out one or both subsections. Read together, those two subsections lead to the unavoidable conclusion that the FRSA operates in addition to the RLA, not in place of it. The protections of the FRSA are in addition to the safeguards of the RLA. The two federal statutes are like two locomotives that each operate on their own parallel separate track, co-existing rather than competing to occupy the same single track.

This interpretation is reinforced by the language of subsection (h): "Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal of State law or under any collective bargaining agreement." Again, the phrase "nothing is this section" is all-inclusive and unlimited in scope. Its plain meaning must be applied to every subsection within the FRSA. And subsection (h) plainly states that nothing in the FRSA shall be deemed to diminish the remedies of any employee under the Railway Labor Act or any collective bargaining agreement. This is in fact the only place where the word "remedies" appears in the actual text of the FRSA. And it is used in the context of a sweeping declaration that nothing in the FRSA shall be interpreted to diminish the remedies of any employee under the Railway Labor Act.

The language of subsection (f) must be read in light of the transcendent "nothing in this section" language of subsections (g) and (h). The meaning of (g) and (h) is plain: subsection (f) cannot be interpreted to diminish any employee’s rights and remedies under the Railway Labor Act. The FRSA’s protection against whistleblower retaliation exists in addition to the collective bargaining remedies available to an employee under the RLA. That interpretation harmonizes the plain meaning of all three subsections. The railroads’ baseless interpretation of subsection (f) improperly ignores the force and effect of subsections (g) and (h) and relegates them to dead letters.


This interpretation of the FRSA’s election of remedies subsection–namely that at most it only requires an election between whistleblower protection statutes–is consistent with OSHA’s handling of FRSA complaints and with the harmonization of subsections (g) and (h). It also does not lead to any double recoveries. That is because the remedies listed by the FRSA are tailored to the practical reality of an employee’s condition. The FRSA generally states that a prevailing employee "shall be entitled to all relief necessary to make the employee whole." 49 U.S.C. 20109(e)(1). If reinstatement is not needed or already has been accomplished, then it is not required under the FRSA. And if there is no back pay to be awarded or if the employee already has been made whole, then there is no double recovery for that remedy. The Railway Labor Act does not provide any remedy for compensatory damages or for punitive damages, so no double recovery is possible there. Because the FRSA exists in addition to–instead of in place of–the RLA, and because the flexible relief under the FRSA is tailored to each employee’s individual situation, double recovery is easily avoided.