Norfolk S. Ry. Co. v. Perez

• Decision Date: 18 February 2015
• Docket Number: No. 14–3274.,14–3274.
• Citation: 778 F.3d 507
• Parties: NORFOLK SOUTHERN RAILWAY COMPANY, Petitioner, v. Thomas E. PEREZ, Secretary of Labor, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

778 F.3d 507

NORFOLK SOUTHERN RAILWAY COMPANY, Petitioner

v.Thomas E. PEREZ, Secretary of Labor, Respondent.

No. 14–3274.

United States Court of Appeals, Sixth Circuit.

Argued: Dec. 4, 2014.

Decided and Filed: Feb. 18, 2015.

Rehearing Denied May 11, 2015.

ARGUED:Robert E. Harrington, III, Harrington, Thompson, Acker & Harrington, Ltd., Chicago, Illinois, for Intervenor. John B. Lewis, Baker & Hostetler LLP, Cleveland, Ohio, for Petitioner. Rachel Goldberg, United States Department of Labor, Washington, D.C., for Respondent. ON BRIEF:Robert E. Harrington, III, Harrington, Thompson, Acker & Harrington, Ltd., Chicago, Illinois, for Intervenor. John B. Lewis, Dustin M. Dow, Baker & Hostetler LLP, Cleveland, Ohio, for Petitioner.

Rachel Goldberg, United States Department of Labor, Washington, D.C., for Respondent. Harry W. Zanville, San Diego, California, for Amicus Curiae.

Before: COLE, Chief Judge; GRIFFIN, Circuit Judge; CARR, District Judge.^*

OPINION

GRIFFIN, Circuit Judge.

The Federal Railroad Safety Act (the “FRSA”), which prohibits a railroad carrier from retaliating against employees who report work-related injuries and potential safety violations, provides that “[a]n 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). This case presents the question whether § 20109(f) precludes a railroad employee from filing an FRSA claim with respect to an adverse employment decision if he has already claimed that the employment decision violated his collective bargaining agreement and has arbitrated that dispute under the provisions of the Railway Labor Act (the “RLA”). We conclude that it does not and therefore deny Norfolk Southern's petition for review.

I.

To give context to the parties' arguments, we begin with the relevant statutory background.

In the mid–1920s, Congress realized that labor disputes between railroad employee unions and railroad carriers had the potential to cripple interstate commerce by bringing the railroad industry to a standstill. See Union Pac. R.R. Co. v. Bhd. of Locomotive Eng'rs & Trainmen Gen. Comm. of Adjustment, 558 U.S. 67, 72, 130 S.Ct. 584, 175 L.Ed.2d 428 (2009) ; Bhd. of Locomotive Eng'rs v. Baltimore & Ohio R.R. Co., 372 U.S. 284, 290, 83 S.Ct. 691, 9 L.Ed.2d 759 (1963). In an attempt to diminish the likelihood of strikes and to “encourage use of the nonjudicial processes of negotiation, mediation and arbitration for the adjustment of labor disputes,” Congress passed the Railway Labor Act in 1926. Bhd. of R.R. Trainmen, Enter. Lodge, No. 27 v. Toledo, P. & W. R.R., 321 U.S. 50, 58, 64 S.Ct. 413, 88 L.Ed. 534 (1944). Under the original version of the RLA, the parties were encouraged—but not required—to submit “minor disputes” (that is, “grievances arising from the application of collective bargaining agreements to particular situations” as opposed to disputes over the formation of collective bargaining agreements) to voluntary arbitration. Union Pac. R.R. Co., 558 U.S. at 72, 130 S.Ct. 584 (citation omitted).

But the original version of the RLA was largely ineffectual. Many of the railroads refused to participate in voluntary arbitration, and even arbitrated disputes frequently deadlocked, given that management and labor representatives were equally represented on the arbitration boards. See Union Pac. R.R. Co. v. Price, 360 U.S. 601, 610, 79 S.Ct. 1351, 3 L.Ed.2d 1460 (1959).

Dissatisfied with the voluntary nature of arbitration under the RLA, railroad labor organizations urged Congress to amend it by mandating arbitration of “minor disputes” before either the National Railroad Adjustment Board or an otherwise agreed-upon arbitration board, each of which would be composed of equal representatives from management and labor, supplementedby neutral tie-breakers. Id. at 611–12, 79 S.Ct. 1351 ; see also 45 U.S.C. § 153 Second. As a concession for forcing the railroad carriers into arbitration, railroad employees agreed that “[arbitration] awards on grievances submitted by or on behalf of employees were to be final and binding upon the affected employees. The employees were willing to give up their remedies outside of the statute provided that a workable and binding statutory scheme was established to settle grievances.” Price, 360 U.S. at 613, 79 S.Ct. 1351.

In 1934, Congress amended the RLA consistent with the unions' request, thereby mandating arbitration of grievances and “barr[ing] the employee's subsequent resort to the common-law remedy after an adverse determination of his grievance by the Adjustment Board.” Id. at 608–09, 79 S.Ct. 1351. See 45 U.S.C. § 153 First (i); Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 322, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972). The pertinent provisions of the RLA have remained intact to this day. Thus, a railroad employee may pursue a grievance under his collective bargaining agreement only pursuant to the scheme of arbitration mandated by the RLA, and—except in extremely narrow circumstances¹ —may not seek judicial review of the outcome in any court. Price, 360 U.S. at 617, 79 S.Ct. 1351 ; see Bhd. of Locomotive Eng'rs & Trainmen v. United Transp. Union, 700 F.3d 891, 899–902 (6th Cir.2012).

At the same time that it was working to achieve nondisruptive resolution of labor disputes, Congress was leveraging its commerce power to address another issue related to the railroad industry: railroad safety. According to contemporary sources, one of the quickest ways to get killed in the late nineteenth century was to start working for a railroad. “In 1888 the odds against a railroad brakeman's dying a natural death were almost four to one,” and a railroad switchman could be expected to die, on average, after only seven years on the job. Bhd. of R.R. Trainmen v. Virginia ex rel. Va. State Bar, 377 U.S. 1, 3, 84 S.Ct. 1113, 12 L.Ed.2d 89 (1964). In response to the railroads' substantial human toll, Congress began enacting legislation requiring that the industry comply with improved, minimal safety standards. See, e.g., Wilkerson v. McCarthy, 336 U.S. 53, 68, 69 S.Ct. 413, 93 L.Ed. 497 (1949) (Douglas, J., concurring) (noting purpose of Federal Employers' Liability Act); Johnson v. S. Pac. Co., 196 U.S. 1, 19, 25 S.Ct. 158, 49 L.Ed. 363 (1904) (noting laws requiring safer methods of railway car coupling); cf. Norfolk & W. Ry. Co. v. Hiles, 516 U.S. 400, 406, 116 S.Ct. 890, 134 L.Ed.2d 34 (1996) ; Ries v. Nat'l R.R. Passenger Corp., 960 F.2d 1156, 1158 (3d Cir.1992).

Congress continued in this vein when it enacted the Federal Railroad Safety Act in 1970, a statutory scheme intended to “promote safety in every area of railroad operations and reduce railroad-related accidents and incidents.” Norfolk S. Ry. Co. v. Shanklin, 529 U.S. 344, 347, 120 S.Ct. 1467, 146 L.Ed.2d 374 (2000) (quoting 49 U.S.C. § 20101 ). Although the original version of the FRSA did not prohibit railroad carriers from retaliating against employees who alerted authorities about a violation of federal safety regulations, Congress amended the Act in 1980 to include an anti-retaliation provision. See Federal Railroad Safety Authorization Act of 1980, Pub.L. 96–423, § 10, 94 Stat. 1811 (1980) ; Rayner v. Smirl, 873 F.2d 60, 63 (4th Cir.1989).

But the anti-retaliation provision came with a catch: it contained an election-of-remedies provision that required an employee seeking protection “under any other provision of law in connection with the same allegedly unlawful act of an employer” to choose “either to seek relief pursuant to this section [i.e., the FRSA] or pursuant to such other provision of law.” Pub.L. 96–423, § 10, sec. 212(d). According to the member of Congress who managed the bill in the House of Representatives, the election-of-remedies provision was intended to

clarify[ ] the relationship between the remedy provided here and a possible separate remedy under OSHA. Certain railroad employees, such as employees working in shops, could qualify for both the new remedy provided in this legislation, or an existing remedy under OSHA. It is our intention that pursuit of one remedy should bar the other, so as to avoid resort to two separate remedies, which would only result in unneeded litigation and inconsistent results.

126 Cong. Rec. 26532 (Sept. 22, 1980) (statement of Rep. Florio).

Under the 1980 version of the statute, employees who sought to bring an FRSA retaliation claim were required to do so pursuant to the mandatory arbitration procedure established under the Railway Labor Act. See Pub.L. 96–423, § 10, sec. 212(c)(1); Procedures for the Handling of Retaliation Complaints Under the National Transit Systems Security Act and the Federal Railroad Safety Act, 75 Fed.Reg. 53,522, 53,523 (Aug. 31, 2010) ; Araujo v. N.J. Transit Rail Operations, Inc., 708 F.3d 152, 156 (3d Cir.2013). Thus, an FRSA claim, like a workplace grievance, was adjudicated by an arbitration board under the RLA.

Following the 9/11 Commission Report, however, the FRSA was amended yet again. See Implementing Recommendations of the 9/11 Commission Act of 2007, Pub.L. No. 110–53, § 1521, 121 Stat. 266, 444 (2007) (codified at 49 U.S.C. § 20109 ). Most significantly, the 2007 amendments permitted employees to file FRSA claims with the Secretary of Labor, rather than requiring them to proceed through the RLA arbitration process. See 49 U.S.C. § 20109(d).

Several other provisions were added to § 20109, as well. Among them was subsection (h), which now provides, “Nothing in this section shall be deemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement. The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.” 49 U.S.C. § 20109(h).

According to the pertinent conference report, the 2007 FRSA amendments were intended to “expand[ ]” the protections for railroad employees,...