NORFOLK SOUTHERN RAILWAY COMPANY, Pеtitioner, 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.
507
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 Peti-
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 anothеr provision of law for the same allegedly unlawful act of the railroad carrier.”
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 оf 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, supple-
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
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 nineteеnth 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., conсurring) (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
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
clаrify[] 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
Several other provisions were added to
According to the pertinent conference report, the 2007 FRSA amendments were intended to “expand[ ]” the protections for railroad employees, to “enhance[]” employees’ “administrative and civil remedies,” and “to ensure that employees can report their concerns without the fear of possible retaliation or discrimination from employers.” H.R.Rep. No. 110-259, at 348 (2007), 2007 U.S.C.C.A.N. 119, 181 (Conf. Rep.); Norfolk S. Ry. Co. v. Solis, 915 F.Supp.2d 32, 38 (D.D.C.2013). Nevertheless, the 2007 amendments to the statute did not remove the preexisting election-of-remedies provision in
The facts relevant to the parties’ dispute in this case are not complicated. Marcus Kruse, a train conductor employed by Norfolk Southern, was injured on the job in March 2010, reported his injury, and took leave until August 2010. Shortly after he returned to work, Kruse was given a thirty-day suspension without pay for exceeding train speed limits. Kruse‘s union appealed the suspension on his behalf under section 3 of the Railway Labor Act,
While his grievance-related appeal was still pending before the arbitration board, Kruse filed an FRSA complaint with the Department of Lаbor, claiming that his suspension was in retaliation for reporting his prior work-related injury. A hearing was held before an administrative law judge (“ALJ“). Norfolk Southern moved for a summary decision on Kruse‘s claim, arguing that FRSA‘s election-of-remedies provision barred his claim, given that he had already challenged his suspension in arbitration. The ALJ denied Norfolk Southern‘s motion and ultimately found in favor of Kruse on the merits of his FRSA claim, holding that Norfоlk Southern had suspended him in retaliation for reporting his workplace injury.
Norfolk Southern appealed to the Department of Labor‘s Administrative Review Board (the “Board“), challenging only the ALJ‘s election-of-remedies ruling. The Board affirmed the ALJ, citing its previous decision in In re Mercier, No. 09-121, 2011 WL 4889278 (ARB Sept. 19, 2011), which had held that an employee‘s prior arbitration of a grievance under the RLA did not trigger the FRSA‘s election-of-remedies provision. See id. at *5.
Norfolk Southern petitions for review of the Board‘s decision. See
III.
The only issue contested by the parties is whether the Board erred in concluding that Kruse‘s FRSA claim was not barred by the FRSA‘s election-of-remedies provision. A petition for review of an order entered by the Board pursuant to the FRSA is governed by the Administrative Procedure Act, see
Norfolk Southern argues that arbitration under the RLA is encompassed within the plain meaning of
We agree with the Secretary that the plain language of
Given that the RLA clearly is a “provision of law,” the parties’ extended duel over whether the RLA is the precise type of legal provision envisioned by
Although we do not doubt that the arbitration procedures mandated by the RLA provide railroad carriers and employees with significant substantive benefits, we agree with the Secretary that the FRSA‘s election-of-remedies provision does not reach employees in Kruse‘s circumstances. A railroad employee does not “seek protection” under the RLA within the plain meaning of
We must presume that Congress says what it means and means what it says, Conn. Nat‘l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992), and therefore must apply a statute as it is written, giving its terms the ordinary meaning that they carried when the statute was enacted. Sandifer, 134 S.Ct. at 876. Generally, to “protect” means “to defend or guard from attack [or] loss ...,” to “cover or shield from injury or danger,” or to “screen [or] shelter.” Webster‘s Unabridged Dictionary of the English Language 1553 (2d ed.2001). To seek “protectiоn,” in turn, ordinarily
Taking the terms of
Thus, an employee possibly could “seek protection” under the RLA if he sought to validate his right to arbitrate against a railroad carrier that did not want to participate in аrbitration. In that scenario, the RLA‘s guarantee of mandatory arbitration would be the legal provision that prevents the harm that the employee is attempting to avoid. See Reed, 740 F.3d at 424. But where an employee seeks to validate rights located in a collective bargaining agreement, he is not seeking a remedy for a right that is guaranteed to him by the RLA. Certainly, he must leverage the RLA in order to obtain redress for the viоlation of the rights located in his collective bargaining agreement, but at that point he is not “seeking protection” under the RLA; he is simply availing himself of it. At bottom, it is the collective bargaining agreement—not the RLA—that is his shield.
Both the Fifth and Seventh Circuits have construed
We recognize that, as Norfolk Southern strenuously contends, there is at least an argument to be made that the arbitral forum itself is one form of protection that the RLA provides to railroad employees. After all, railroad workers of yore specifically negotiated for a federal statute establishing a dispute-resolution process that would protect employees from the inequitable vagaries of the preexisting voluntary arbitration regime. Price, 360 U.S. at 613, 79 S.Ct. 1351; United Transp. Union, 700 F.3d at 899. Cf. Hertz Corp. v. Friend, 559 U.S. 77, 92, 130 S.Ct. 1181, 175 L.Ed.2d 1029 (2010) (noting in thе diversity-jurisdiction context that the availability of a federal forum may provide substantive protections). Moreover, the RLA excludes all alternative methods of resolving workplace grievances, see Union Pac. R.R. Co., 558 U.S. at 72, 130 S.Ct. 584, meaning that the RLA is “the law which gives legal and binding effect to collective agreements.” Dispatchers, 499 U.S. at 132, 111 S.Ct. 1156; see also, Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union, 396 U.S. 142, 156, 90 S.Ct. 294, 24 L.Ed.2d 325 (1969). And because “[t]he processing of disputes through the grievance machinery is actually a vehicle by which meаning and content are given to the collective bargaining agreement,” United Steelworkers of Am. v. Warrior & Gulf Nav. Co., 363 U.S. 574, 581, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960), there is an argument to be made that Kruse sought at least some degree of “protection” under the RLA when he invoked the only available process that would construct the substantive meaning of his collective bargaining agreement.
But even if we accepted this line of reasoning and concluded that
Because the operation of subsection (f) is prohibited by subsection (h),
For purposes of this appeal, however, we need to proceed no further than the statute‘s plain language. Because Kruse did not seek protection under the RLA when he arbitrated his grievance, the arbitration did not trigger the FRSA‘s election-of-remedies provision in
IV.
For these reasons, we deny the petition for review.
GRIFFIN
CIRCUIT JUDGE