Reed v. Norfolk S. Ry. Co.

Citation740 F.3d 420
Decision Date14 February 2014
Docket NumberNo. 13–2307.,13–2307.
PartiesJustin REED, Plaintiff–Appellee, v. NORFOLK SOUTHERN RAILWAY COMPANY, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

OPINION TEXT STARTS HERE

Charles A. Collins, Saint Paul, MN, David L. Lee, Chicago, IL, Harry W. Zanville, San Diego, CA, for PlaintiffAppellee.

James S. Whitehead, Sidley Austin LLP, Chicago, IL, for DefendantAppellant.

Rachel Goldberg, Department of Labor, Washington, DC, for Amicus Curiae.

Before BAUER and FLAUM, Circuit Judges, and VAN BOKKELEN, District Judge.*

FLAUM, Circuit Judge.

This case is about the meaning of the election-of-remedies provision in the Federal Railroad Safety Act (“FRSA”). The defendant, Norfolk Southern Railway, claims that this provision bars a railroad employee who has been wrongfully discharged from obtaining relief through both grievance-arbitration pursuant to the Railway Labor Act and an administrative claim or lawsuit under FRSA. We disagree. Although our reasoning differs from the district court's, we too conclude that nothing in FRSA bars an employee from bringing both claims.

I. Background

In April 2009, Justin Reed, a trackman with Norfolk Southern Railway (NSR), experienced a bout of severe abdominal pain while working. He claimed that, after he informed his supervisor, company officials were reluctant to provide medical treatment and pressured him into signing a statement that he had not been “injured on or at work.” Reed was on medical leave for about seven months. Soon after he returned to work, a company claims agent urged him to state whether he thought the April incident was work-related. Reed admitted that, notwithstanding his earlier attestation, he felt that his work did play a role in his injury. NSR responded by firing Reed for making inconsistent statements and for violating Rule N, an internal rule requiring same-day reporting of on-site injuries.

Reed was a member of the Brotherhood of Maintenance of Way Employes Division of the International Brotherhood of Teamsters, which had negotiated a collective bargaining agreement with NSR. Reed and the union believed that his termination violated the terms of this agreement. Following his termination—and pursuant to section 3 of the Railway Labor Act, 45 U.S.C. § 153—Reed appealed his dismissal to an arbitral board, Public Law Board 6394.

While the arbitration proceedings before the Board were pending, Reed also filed a complaint with the Occupational Safety and Health Administration, alleging that NSR had violated the Federal Railroad Safety Act. FRSA prohibits railroad carriers from, among other things, discriminating against employees who “notify, or attempt to notify, the railroad carrier ... of a work-related personal injury.” 49 U.S.C. § 20109(a)(4). After waiting an appropriate period of time, see id. § 20109(d)(3), Reed brought an original action in federal district court.

Approximately seven months after Reed filed his FRSA suit, Public Law Board 6394 issued its opinion. The Board concluded that Reed's violations of company policy were not grounds for dismissal and awarded him reinstatement without back pay. Four days later, NSR moved for summary judgment in Reed's FRSA suit. By choosing to arbitrate his grievance before the Public Law Board, the company maintained, Reed had triggered FRSA's election-of-remedies provision:

Election of Remedies.—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). Thus, NSR argued, Reed had closed the courthouse door to his FRSA claim.

The district court denied NSR's motion. Reed v. Norfolk Southern Ry. Co., 2013 WL 1791694 (N.D.Ill. Apr. 26, 2013). It reasoned that the arbitration proceedings were not an “election” of remedies because arbitration was mandatory, and that a collective bargaining agreement was not “another provision of law” because it arose out of a private agreement rather than a federal or state statute. NSR successfully moved for interlocutory review.

II. Discussion

We said above that Reed arbitrated his grievance pursuant to the Railway Labor Act because, in the rail industry, such arbitration is required by statute. See Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 323, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972) ([T]he compulsory character of the administrative remedy provided by the Railway Labor Act ... stems not from any contractual undertaking between the parties but from the Act itself.”); Brown v. Ill. Cent. R.R. Co., 254 F.3d 654, 658 (7th Cir.2001). Specifically, 45 U.S.C. § 153 First (i) requires that disputes growing out of collective bargaining agreements initially be handled through the rail carrier's internal processes, but if those processes fail either party has the right to appeal to the National Railroad Adjustment Board. Another provision, 45 U.S.C. § 153 Second, permits unions and rail carriers to jointly establish special adjustment boards in lieu of the National Railroad Adjustment Board; one such adjustment board was Public Law Board 6394, the body that heard Reed's appeal.

NSR sees the Railway Labor Act as the “provision of law” it needs to get its foot in the door of § 20109(f). In support, NSR relies on a Supreme Court decision, Norfolk & Western Railway Co. v. American Train Dispatchers Ass'n, 499 U.S. 117, 111 S.Ct. 1156, 113 L.Ed.2d 95 (1991), that addressed a similar phrase in the Interstate Commerce Act. The question in Dispatchers was whether a provision that exempted certain consolidating rail carriers “from the antitrust laws and from all other law, including State and municipal law, as necessary to let [it] carry out the transaction” operated to relieve the carriers from obligations incurred in a collective bargaining agreement. Id. at 120, 111 S.Ct. 1156 (emphasis added) (quoting 49 U.S.C. § 11341(a) (1988)). The Court held that it did. In particular, the Court identified the Railway Labor Act“the law which gives legal and binding effect to collective agreements” in the rail industry—as “the law that ... is superseded when an ICC-approved transaction requires abrogation of collective-bargaining agreements.” Id. at 132, 111 S.Ct. 1156 (internal citations and quotation marks omitted).

Just because the Supreme Court treated the Railway Labor Act as “law” for Interstate Commerce Act purposes, however, does not mean that we must treat the Act as “law” for FRSA purposes.1Dispatchers shows that such a reading is permissible, but it does not require that outcome if statutory text and context point the other way. Simply put, Dispatchers does not lay down a mandatory rule about the scope of the term “law” in federal statutes. See American Airlines, Inc. v. Wolens, 513 U.S. 219, 229 n. 6, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995) (distinguishing “all law” in the Airline Deregulation Act of 1978 from “any other law” in Dispatchers and noting that each phrase had to be interpreted in light of the statute and case before us). FRSA, in other words, must be read on its own terms.

Here, the district court—like other district courts that have addressed this question, and also like the Department of Labor's Administrative Review Board—concluded that the Railway Labor Act was not a “provision of law” within the meaning of § 20109(f). Accord Ray v. Union Pac. R.R. Co., –––F.Supp.2d ––––, –––– – ––––, 2013 WL 5297172, at *6–8 (S.D.Iowa Sept. 13, 2013); Ratledge v. Norfolk Southern Ry. Co., 2013 WL 3872793, at *10–17 (E.D.Tenn. July 25, 2013); Mercier v. Union Pac. R.R., 2011 WL 4889278 (ARB Sept. 29, 2011); cf. Battenfield v. BNSF Ry. Co., 2013 WL 1309439, at *4 (N.D.Okla. Mar. 26, 2013) (finding that conclusion “at least colorable”); Norfolk Southern Ry. v. Solis, 915 F.Supp.2d 32, 43–45 (D.D.C.2013) (same).

All of these authorities analyzed NSR's argument primarily in terms of the scope of “provision of law,” and as just described, nothing in Dispatchers forecloses this result. That said, we determine the meaning of the election-of-remedies provision de novo, and we are reluctant to focus only on that particular snippet of text. In our view, there is a conceptually simpler way to address the question. For even assuming arguendo that the Railway Labor Act is “law”, it must also be the case that Reed “ sought protection under ” that law. Giving those words their plain meaning, we cannot see how he did. 2

In the first place, the Railway Labor Act “does not undertake governmental regulation of wages, hours, or working conditions. Instead it seeks to provide a means by which agreement may be reached with respect to them.” Terminal R.R. Ass'n v. Bhd. of R.R. Trainmen, 318 U.S. 1, 6, 63 S.Ct. 420, 87 L.Ed. 571 (1943). In other words, the Act is entirely agnostic as to the content of any collective bargaining agreement. (Reed's appeal to Public Law Board 6394 is a case in point; as the district court noted, the claim he asserted arose solely from his collective bargaining agreement.) Likewise, the Act's streamlined arbitration procedures are intended only to “see that disagreement about [working] conditions does not reach the point of ... threaten[ing] continuity of work, not to remove conditions that threaten the health or safety of workers.” Id.; see also Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252, 114 S.Ct. 2239, 129 L.Ed.2d 203 (1994); Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S. 711, 725–28, 65 S.Ct. 1282, 89 L.Ed. 1886 (1945).

We doubt that a person who arbitrates a grievance based on a private contractual agreement necessarily does so “under” federal law merely because a federal statute requires that the claim be brought before an adjustment board. Cf. Graf v. Elgin, Joliet & Eastern Ry. Co., 697 F.2d 771, 776 (7th Cir.1983) ([T]he fact that an activity is regulated by a federal statute, as collective bargaining in the railroad industry is...

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