The long wait is over. The Administrative Review Board has officially laid the railroad’s bogus “election of remedies” defense to rest. In Mercier v. Union Pacific Railroad Co., the ARB has declared once and for all that rail workers are entitled to simultaneously pursue their rights under the Federal Rail Safety Act while also defending themselves under their collective bargaining agreement.
This confirms a worker does not waive his right to pursue a FRSA whistleblower complaint just because he also invokes his CBA right to contest a railroad’s decision to impose discipline. The best way to conceptualize this is to imagine two parallel tracks that never intersect or interfere with the other. On one track the union pursues the RLA arbitration rights of its members. On the other track the worker is free to pursue his FRSA whistleblower protection rights.
All good things come to those who wait. For a list of prior blog posts on the election of remedies issue, click here.