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Straight
Track #260
RAILROAD
RETALIATION
REPORT
Part 11:
SORTING OUT “ELECTION OF REMEDIES”
By James L. Farina,
Alan J. Fisher and Steven P. Garmisa
Section 20109 of the Federal Rail Safety Act has an
“Election of Remedies” provision. This part of Section 20109 says: “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.”
If you filed a lawsuit under a state law
alleging retaliatory discharge, then the Election of Remedies
provision would prevent you from also filing a complaint with the
Occupational Safety and Health Administration (“OSHA”) under Section
20109. You would have “elected” to pursue a remedy “for the same
allegedly unlawful act of the railroad” under the State statute.
Similarly, if you filed a claim alleging retaliatory discharge under
some other Federal law, such as the Civil Rights statutes, you
could not also pursue a complaint with OSHA under Section 20109.
But what if you pursue your rights in arbitration
under the Railway Labor Act (“RLA”) for breach of a collective
bargaining agreement (“CBA”), and also send a complaint to OSHA alleging
violation of Section 20109? Would the “Election of Remedies” provision
bar the OSHA complaint? The answer is not clear-cut.
We believe that the Election of Remedies provision
does not bar a railroad employee from pursuing both arbitration under
the RLA and a complaint with OSHA for retaliatory discharge under
Section 20109. However, we cannot predict how OSHA or judges will
interpret the Election of Remedies provision. The most that attorneys
can do, as Justice Oliver Wendell Holmes Jr. wrote many years ago, is
give “prophecies” about what judges will eventually say the law is.
With that cautionary warning, here are four reasons why we think that
the Election of Remedies provision in Section 20109 should not bar an
employee from pursuing a claim with OSHA after seeking arbitration under
the Railway Labor Act.
Reason One
The initial version of Section 20109 said: “A
dispute, grievance, or claim arising under this section is subject to
resolution under section 3 of the Railway Labor Act. However,
Congress dropped that section when, in August 2007, it authorized
railroad employees to pursue claims with OSHA.
Significantly, the old version of Section 20109
also contained an Election of Remedies provision that said: “An employee
of a railroad carrier may not seek protection under both this section
and another provision of the law for the same allegedly unlawful
act of the carrier.”
Because claims under the initial version of Section
20109 were all “subject to arbitration under section 3 of the Railway
Labor Act,” the reference in the Election of Remedies provision to
claims pursued under “another provision of the law,” clearly does not
include reference to arbitration under the Railway Labor Act.
Reason Two
Given that Congress eliminated the section that
required arbitration of alleged violations of Section 20109, the
correct analysis of the Election of Remedies provision should come from
the United States Supreme Court’s decision in
Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974)
In that case, Harrell Alexander Sr. – a
non-railroad employee who belonged to a union – filed a lawsuit alleging
racial discrimination by his employer. The lawsuit was based on a
federal statute called Title VII. Before he filed the lawsuit,
Alexander pursued arbitration proceedings under a collective bargaining
agreement.
At the arbitration hearing, Alexander alleged he
was discharged because of racial discrimination. But the arbitrator
ruled that Alexander failed to prove racial discrimination. Although
the arbitrator ruled against Alexander in his arbitration dispute, the
Equal Opportunity Employment Commission gave Alexander permission to
file a federal lawsuit.
However, the Federal District Court trial judge
dismissed Alexander’s lawsuit. According to the judge, the lawsuit was
barred because Alexander previously submitted his discrimination claim
to arbitration, and the arbitrator ruled against him.
The Court of Appeals then affirmed the District
Court decision, but the United States Supreme Court reversed that
decision and ruled for Alexander.
Alexander v. Gardner-Denver Co.,
415 U.S. 36 (1974). As the
Supreme Court explained:
“The District Court relied in part on the doctrine
of election of remedies. That doctrine, which refers to
situations where an individual pursues remedies that are legally or
factually inconsistent, has no application in the present context.
“In submitting his grievance to arbitration, an
employee seeks to vindicate his contractual right under a
collective-bargaining agreement. By contrast, in filing a lawsuit under
Title VII, an employee asserts independent statutory rights
accorded by Congress.
“The distinctly separate nature of these
contractual and statutory rights is not vitiated [meaning
eliminated] merely because both were violated as a result of the same
factual occurrence. And certainly no inconsistency results from
permitting both rights to be enforced in their respectively appropriate
forums.”
Alexander v. Gardner-Denver Co.,
415 U.S. at
49-51.
Based on this analysis, the Supreme Court ruled
that Alexander’s lawsuit was not barred by the doctrine of
“Election of Remedies.” Using the same reasoning, the Election of
Remedies provision in Section 20109 should not apply when an
employee (1) demands arbitration under a CBA, and (2) also pursues a
separate claim, with OSHA, to vindicate an independent
statutory right under Section 20109.
Reason Three
The doctrine of Election of Remedies assumes that
there are two remedies for the same alleged conduct. But a
railroad employee who is fired for engaging in activity that is
protected under Section 20190 does not have a remedy in arbitration
proceedings under the Railway Labor Act.
Specifically, if an employee gets fired for
engaging in activities that are protected under Section 20109, then
violation of that statute would not be a “minor dispute” that
could be arbitrated under the RLA. As a result, the RLA would not
provide a remedy for an alleged violation of Section 20109.
As the United States Supreme Court explained in
Hawaiian Airlines v. Norris, 512 U.S. 246 (1994), the RLA provides
the “mandatory” mechanism for resolving “minor disputes” between
railroads or airlines and their employees. The Supreme Court explained,
“Minor disputes involve controversies over the meaning of an existing
collective bargaining agreement in a particular fact situation.”
In Hawaiian Airlines, the Supreme Court
concluded that, “the RLA’s mechanism for resolving minor disputes
does not pre-empt meaning eliminate] causes of action
[meaning claims or complaints] to enforce rights that are independent
of the CBA.” Accordingly, it is our opinion that arbitration under
the RLA does not apply to a claim that is based in Section 20109,
because Section 20109 provides “rights that are independent of the CBA.”
Since arbitration under the RLA is not an
alternative remedy for breach of Section 20109, the Election of Remedies
provision should not bar an employee from pursuing both arbitration and
a complaint with OSHA.
Reason Four
The Election of Remedies provision should not apply
because the typical grievance/arbitration – where the employee merely
alleges breach of a CBA, on the grounds that he or she was fired without
cause – does not amount to an attempt to “seek protection” for an
“allegedly unlawful act of the railroad carrier.”
Remember, the Election of Remedies provision in
Section 20109 says: “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.” If a railroad breaches a CBA
by firing an employee without cause, this is a breach of contract,
but it is not an “unlawful act.”
The U.S. Court of Appeals explained in Benderson
Development Company v. United States Postal Service, “To breach a
contract is not unlawful; the breach only begets a remedy in law or
in equity.”
998 F.2d 959, 962
(1993). This means that when an employee seeks arbitration
under the RLA – based on the allegation that she or he was fired without
cause, in violation of the terms of a collective bargaining agreement –
then the employee has not sought “protection” under “another provision
of law” for some “allegedly unlawful act of the railroad
carrier.”
As a result, the Election of Remedies provision
should not bar a Section 20109 retaliation claim in cases where the
employee first pursued arbitration for alleged breach of contract.
Conclusion
We cannot prophesize how judges will interpret the
Election of Remedies provision. Depending on how judges rule, you may
have to pick between arbitration and an OSHA complaint. But as with so
many other things involving Section 20109, be cautious and confer with
your Union Representative and Designated Legal Counsel before taking
action.
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