For years, railroads have argued that a worker’s pursuit of collective bargaining agreement arbitration constitutes an “election of remedies” defense to a Federal Rail Safety Act claim. But after being rejected by half a dozen judges, that bogus defense was on life support. Now, in a devastating decision, the 7th Circuit Court of Appeals has pulled the plug on it once and for all.

Reed v. Norfolk Southern Railway Company involved a classic FRSA fact pattern. Trackman Justin Reed was fired for making “inconsistent statements” regarding his injury and for not reporting it the day it occurred. Reed pursued a Public Law Board arbitration and also filed a FRSA complaint in federal court. After the PLB reinstated Reed with full back pay, Norfolk moved to dismiss the federal action, arguing that rail workers cannot recover under both the Railway Labor Act and the FRSA.

Subsection (f) of the FRSA prohibits employees from seeking protection under both the FRSA and “another provision of law for the same allegedly unlawful act of the railroad,” and the Railroad argued the RLA is such “another provision of law.”

The 7th Circuit emphatically rejected the Railroad’s argument, pointing out the obvious distinction between seeking protection under a RLA collective bargaining agreement and seeking protection from whistleblower retaliation under the FRSA:

the Railway Labor Act offers Reed no protection at all; it merely instructs him to bring any grievances that cannot be resolved on-property to a specific forum. . . .nothing in the Railway Labor Act offers substantive protection akin to the FRSA . . .The FRSA’s election-of-remedies provision only bars railroad employees from seeking duplicative relief under overlapping antiretaliation or whistleblower statutes; it does not diminish their rights or remedies under collective bargaining agreements in any way.

Thus railroad workers are perfectly free to pursue their CBA rights while simultaneously suing the railroad under the FRSA.  The CBA and the FRSA run on parallel tracks, and the progress of one does not derail the other.

The U.S. Circuit Court of Appeals is but one step below the U.S. Supreme Court. The 7th Circuit’s Reed decision buries the election of remedies defense six feet under, and will stand as its eternal gravestone. So good riddance to a rotten defense, and tip of the hat to BMWE labor counsel Harry Zanville and Charlie Collins for putting the final nails in the coffin.  For all the decisions on the election of remedies issue, click here.  For a summary of the FRSA, click here.