Department of Labor Files Amicus Brief, Arguing That an Employee’s Pursuit of a Grievance Under the Railway Labor Act Does Not Preclude a Whistleblower Complaint Under the Federal Railroad Safety Act

Today, the Office of the Solicitor of the Department of Labor filed an amicus brief with the Administrative Review Board in Mercier v. Union Pacific Railroad, ARB Case Nos. 09-121 & 09-101 (May 21, 2010), available here, in which the Assistant Secretary of Labor for Occupational Safety and Health argues that the election of remedies provision in the Federal Railroad Safety Act (49 U.S.C. § 20109(f)) does not preclude a FRSA complaint where the employee / complainant has pursued a grievance and / or arbitration pursuant to the employee’s collective bargaining agreement under the Railway Labor Act. FRSA’s whistleblower protection provision contains an election of remedies provision, which reads as follows:
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).

In these consolidated cases, the Assistant Secretary argues that the act for which an employee seeks protection through a grievance and / or arbitration process is for a violation of the collective bargaining agreement and, the Assistant Secretary argues that an employee cannot seek protection through the grievance and / or arbitration process for retaliation, as a retaliation claim does not require the application or interpretation of the CBA. Thus, the Assistant Secretary argues that “even where a dispute under the CBA and a FRSA claim might address the same facts, the [Railroad] Adjustment Board has no authority to address an employee’s claim of retaliation” (footnote omitted). Therefore, the Assistant Secretary argues that “utilizing the grievance and / or arbitration process is not an election to seek protection for the unlawful act of retaliation.”

Tip of the hat to the Train Blog for calling this development to our attention.

Please be sure to visit our website at http://RobertBFitzpatrick.com