The bogus "election of remedies" defense to Federal Rail Safety Act claims raised by railroads just took a major hit. Yesterday the Department of Labor filed an appellate Brief confirming that a railroad worker who pursues a grievance or arbitration under the Railway Labor Act is not thereby precluded from simultaneously pursuing a FRSA whistleblower protection claim. Noting that "retaliation and a violation of the CBA are not the same unlawful acts," the DOL’s official position is that the FRSA’s "election of remedies provision does not preclude a FRSA complaint where an employee has pursued a grievance and/or arbitration pursuant to the employee’s collective bargaining agreement under the Railway Labor Act." For the full decision, click here. For some of the back story regarding this issue, click here.