The railroads obviously have gotten together and agreed to push the bogus argument that any involvement by an employee in the Railway Labor Act CBA grievance-discipline process automatically constitutes an "election of remedies" under Federal Rail Safety Act subsection (f) that precludes any FRSA complaint. It is a bogus argument because it completely ignores the effect of subsection (g) entitled No Preemption and subsection (h) entitled Rights Retained by Employee, which must be read together and harmonized with subsection (f).
As railroad lawyers representing employees, it is critical that we give any OSHA investigators and Administrative Law Judges presented with that bogus "election of remedies" argument the means to reject it out of hand. Back in January I laid out my detailed argument for the holistic analysis of FRSA subsections (f), (g), and (h). "The Real Meaning of Election of Remedies Under the FRSA" And last month, in a well-reasoned and persuasive decision, Administrative Law Judge Daniel L. Leland confirmed that subsection (f) cannot be read in isolation but must be read together and reconciled with (g) and (h). And when that is done, the conclusion that the FRSA is not precluded by the RLA grievance-arbitration process is inescapable. Click here for the full Mercier v. Union Pacific Railroad opinion.
The Mercier decision was just certified to the Administrative Review Board for an interlocutory appeal, and has been assigned docket number ARB #09121. It currently is in the hands of General Counsel Janet Dunlap, who presumably will be issuing an Order regarding a briefing schedule. An ALJ decision that completely ignores the effect of subsections (g) and (h), Koger v. Norfolk Southern Railway Company, ARB # 09101, is currently in the briefing stage. Given what is at stake (unlike ALJ decisions, ARB decisions are binding on OSHA nationwide) amicus briefs in support of the ALJ’s analysis in Mercier are definitely in order.