Yet another federal district court judge has rejected rail management’s election of remedies defense to Federal Rail Safety Act whistleblower retaliation complaints. You can add Ratledge v. Norfolk Southern Railway Company to the growing list of federal court decisions dope slapping the railroads who raise such a hapless argument: see Solis, Reed, and Battenfield.
Ratledge concerns an injured conductor who was fired based on bogus allegations by Norfolk Southern that he falsified his injury. While Ratledge’s union was pursuing his Railway Labor Act remedies, he also filed a FRSA retaliation complaint with OSHA. After OSHA ruled in his favor and Norfolk Southern objected, Ratledge opted for a FRSA jury trial in federal court. The Railroad then moved to dismiss the FRSA complaint, arguing that the FRSA’s Election of Remedies provision barred Ratledge from pursuing both his RLA and FRSA remedies.
The U.S. Department of Labor weighed in with the court, reaffirming its position that the FRSA’s election of remedies provision does not bar railroad workers from simultaneously pursuing RLA CBA and FRSA whistleblower remedies. The United States District Court agreed, and emphatically rejected the Railroad’s argument. Here are some excerpts from the Decision:
The word “another” in subsection (f) implies the second provision of law should be similar in kind to § 20109. . . . With the disjunctive “or” in subsection (h), the statute distinguishes between “Federal or State law” and rights or remedies held “under any collective bargaining agreement.” More succinctly stated, § 20109 distinguishes between legal remedies and CBA remedies. . . . the Court concludes NSR’s interpretation of § 20109(f) conflicts with the statutory language, its history and prior iterations, and relevant legislative materials. Plaintiff did not waive his FRSA retaliation rights when he entered RLA arbitration.
In fact, the federal court found the language and intent of the FRSA to be so clear that application of Chevron agency deference was not even necessary: "The Court concludes any ambiguity in the phrase “another provision of law” is resolved by traditional tools of statutory construction, including the relevant statutory context."
The more railroads raise this bogus defense, the stronger the precedent against it gets.