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.