Another federal district court judge has rejected rail management’s bogus "election of remedies" defense to Federal Rail Safety Act whistleblower retaliation complaints.
Reed v. Norfolk Southern Railway Company concerned a trackman who was fired after reporting an injury. While the Brotherhood of Maintenance of Way Employees union was representing him for that disciplinary action, Reed also filed a complaint with OSHA’s Whistleblower Office alleging the Railroad’s conduct violated the FRSA. When Reed opted for a FRSA jury trial in federal court, the Railroad moved for summary judgment, arguing that the FRSA’s Election of Remedies provision barred him from pursuing both his RLA and FRSA remedies.
The United States District Court soundly rejected the Railroad’s argument. Here are some excerpts from the Decision:
a CBA is not "another provision of law" as contemplated by the FRSA’s Election of Remedies provision
grievances filed pursuant to a collective bargaining agreement are not encompassed by the phrase "another provision of law" in the Election of Remedies provision of the FRSA
the Department of Labor has consistently taken the position that the FRSA Election of Remedies provision is not triggered by an employee pursuing arbitration under a collective bargaining agreement because a collective bargaining agreement is a private contract and not another provision of law . . . [and] the Department of Labor’s interpretation is reasonable
The railroads keep trying to sell their discredited Election of Remedies argument, but no one is buying it.