EMPLOYMENT (LABOR LAW) & RAILROAD / D.C. District Court upholds U.S. Department of Labor Administrative Review Board determination that whistle-blower anti-retaliation claims under federal statute (Federal Rail Safety Act as enacted 1970 and amended in 1980 and 2007 concerning whistle-blower anti-retaliation) may be pursued simultaneously with grievance process under Railway Labor Act § 3.

With this decision the development of whistle-blower and anti-retaliation statutory law takes another significant step. To the extent of this U.S. District Court’s ruling, 49 U.S.C. § 20109 is applied according to its literal terms – barring immediate appeal from an administrative review board decision on whistle-blower anti-retaliation claims to the federal court system. 

This has implications not only in rail, but in aviation, maritime and motor carrier – each of which is subject to whistle-blower anti-relation statutes. 

Norfolk Southern Railway Company v. Solis, 2013 WL 39226 (U.S. District Court for the District of Columbia, January 3, 2013). Free copy available here.

Sequence of administrative and litigation events prior to this case   

1. Mr. Koger working for Norfolk Southern and Mr. Mercier working for Union Pacific each – in factually unrelated cases – is dismissed or suspended from work.

2. Subsequently each of Mr. Koger and Mr. Mercier takes both of the following actions:

(1)  Initiates an action for grievance under each of their respective collective bargaining agreements pursued through arbitration under the Railway Labor Act § 3; and

(2)   During the pendency of that Railway Labor Act § 3 proceeding, files a whistle-blower complaint with the OSHA Assistant Secretary of the U.S. Department of Labor under 49 U.S.C. § 20109 “alleging that he had been terminated in violation of [Federal Railroad Safety Act] for reporting a work-related personal injury to [his employer-railroad]”.

3. Mr. Koger and Mr. Mercier each takes his respective case to an Administrative Law Judge (“ALJ”).

4. The ALJ in Mr. Koger’s case ruled that his simultaneous pursuit of both his Railway Labor Act § 3 grievance proceeding and his 49 U.S.C. § 20109 whistle-blower anti-retaliation claim rendered the latter claim invalid under the “election of remedies” requirement of 49 U.S.C. § 20109.

5. The ALJ in Mr. Mercier’s case ruled that his simultaneous pursuit of both his Railway Labor Act § 3 grievance proceeding and the whistle-blower anti-retaliation claim did not render the latter claim invalid under the “election of remedies” requirement of 49 U.S.C. § 20109.

6. Mr. Koger appealed his ALJ ruling to the U.S. Department of Labor Administrative Review Board (“ARB”) and Mr. Mercier’s railroad-employer appealed its ALJ ruling to the ARB.

7. The ARB consolidated Mr. Koger’s and Mr. Mercier’s cases.

8. The ARB ruled that the railroad workers Mr. Koger and Mr. Mercier could pursue both a grievance proceeding under the Railway Labor Act § 3 and an whistle-blower anti-retaliation claim under 49 U.S.C. § 20109. Free copy of ARB decision available here.

Outcome of administrative proceedings & what railroad attempted in court 

With the ARB’s decision in both Mr. Koger’s and Mr. Mercier’s cases: “The ARB’s decision was not a final order of the [U.S.] Secretary [of Labor], and [was] not appealable to a court of appeals under 49 U.S.C. § 20109(d)(4).

Norfolk Southern Railway Company responded to the ARB’s decision with this action in federal district court: 

“[Norfok Southern Railway] filed its complaint in the district court on February 24, 2012. NSR asks the Court to vacate and set aside the September 29, 2011 decision of the Secretary, to declare that the Secretary may not rely on that decision in any other proceedings under 49 U.S.C. § 20109, to direct the Secretary to dismiss Koger’s complaint, and to enjoin the Secretary and her delegates from applying the interpretation of 49 U.S.C. § 20109(f) set forth in the September 29, 2011 decision in any other proceedings under 49 U.S.C. § 20109. Compl. ¶ 63(1). The Secretary filed the instant motion to dismiss on April 30, 2012. Mercier and [his labor union] filed their motion to

intervene on May 23, 2012; [a different rail labor union] filed its motion to intervene on June 1, 2012. The case was transferred to the undersigned judge on November 5, 2012.”

Norfolk Southern Railway argued the following, with corresponding answers from the U.S. District Court opinion: 

As a threshold question, it appeared clear that the statute (49 U.S.C. § 20109) offered the Norfolk Southern Railway no avenue of “appeal” or other form of direct right of access to a federal court to contest the ARB’s decision regarding Mr. Koger: “A final order of the ARB (which is the final order of the [U.S.] Secretary [of Labor]) is subject to judicial review in a United States Court of Appeals. 49 U.S.C. § 20109(d)(4); 29 C.F.R. § 1982.112.”

Norfolk Southern Railway invoked the doctrine of Leedom v. Kyne, 358 U.S. 184 (1958), claiming that the ARB decision was, “in excess of the Secretary’s jurisdiction and delegated powers, and [Norfolk Southern Railway] has no other meaningful and adequate means of vindicating its statutory right”. 2013 WL 39226 *7. Free copy of case available here.

In reply the court observed: 

“A party seeking judicial review pursuant to Leedom must satisfy two predicates.

“First, the party must demonstrate that the agency disobeyed a statutory provision that is “clear and mandatory.” Nat’l Air Traffic Controllers Ass’n AFL-CIO v. Fed. Serv. Impasses Panel, 437 F.3d 1256, 1258 (D.C. Cir. 2006) (quoting Leedom, 358 U.S. at 188).

“Second, the party must show that, without the district court’s exercise of jurisdiction, it lacks any “meaningful and adequate means of vindicating [its] statutory rights.” Nat’l Air Traffic Controllers, 437 F.3d at 1258. (quoting MCorp, 502 U.S. at 43).”

Norfolk Southern Railway Argument #1: 

U.S. Secretary of Labor had exceeded her statutory powers through the decision of the ARB. 

Court’s answer to #1: “[Norfolk Southern Railway] failed to show that the Secretary disobeyed a statutory provision that is clear and mandatory”. 

“NSR must show a “clear and mandatory” obligation on the part of the Secretary either to refrain from or to engage in particular conduct, and show that the ARB decision violates that particular obligation. Nat’l Air Traffic Controllers, 437 F.3d at 1263. District court review under the Leedom doctrine may be appropriate when an agency has engaged in a “gross violation” of statutory duties, and when absence of review would result in the “sacrifice or obliteration of a right” created by Congress. Ry. Labor Exec. Ass’n. v. Nat’l Mediation Bd., 29 F.3d 655, 661 (D.C. Cir. 1994) (en banc).

“Such review is not appropriate if the agency’s interpretation is a “colorable” reading of the statute, even if that reading is not the only one possible. Griffith, 842 F.2d at 494. See also Nat’l Air Traffic Controllers, 437 F.3d at 1264 (noting that both sides raised compelling arguments, which indicated that the “statutory directive” was not “specific and unambiguous”).

“NSR claims that 49 U.S.C. § 20109(f) imposes a clear and mandatory obligation on the part of the Secretary to bar complaints from employees who have engaged in mandatory arbitration pursuant to the procedures in RLA § 3. NSR further claims that to allow employees who have already engaged in RLA § 3 arbitration to maintain complaints under FRSA would deprive rail carriers of a Congressionally-created right to be free of such suits.

“Contrary to NSR’s assertions, the statute is neither specific nor unambiguous. As noted above, at the forefront of the ARB decision was the question of whether an employee who engages in mandatory arbitration for violation of the terms of a CBA who also files a FRSA complaint is “seek[ing] protection” under FRSA and “another provision of law.” ARB decision at 3. The ARB decision, citing Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974), explained that “another provision of law” does not encompass grievance procedures pursued under a CBA. 16ARB decision at 7. In Alexander, the Court considered “under what circumstances, if any, an employee’s statutory right to a trial de novo under Title VII may be foreclosed by prior submission of his claim to final arbitration under the nondiscrimination clause of a collective- bargaining agreement.” Alexander, 415 U.S. at 38. The Court determined that contractual rights under a CBA were distinct from federal statutory rights, and the rights had “legally independent origins.” Id. at 52-53. Referencing Alexander, the ARB decision determined that a reading of § 20109(f) allowing retaliation claims to proceed concurrent with collective bargaining grievance procedures would be consistent with the plain meaning of FRSA in light of §§ 20109(g) and (h), which reinforce employee rights (under § 20109(h)) and limit the preemption of other rights of action by an employee (under § 20109(g)).

“NSR argues that the ARB decision’s reasoning is flawed, citing Norfolk & Western Ry. v. Am. Train Dispatchers Ass’n, 499 U.S. 117 (1991) for the proposition that a railroad employee seeking relief for violation of the terms of a CBA is seeking protection under the RLA, and that a CBA falls under “all other law” as it appears in a statutory immunity provision. Contrary to NSR’s position, the opinion in Norfolk & Western is not entirely inconsistent with that in Alexander, nor is it as determinative as NSR maintains. Norfolk & Western states that the obligations of the RLA “give[] force to the carriers’ collective bargaining agreements,” and that the “RLA governs the formation, construction, and enforcement of the labor-management contracts.” Norfolk & Western, 499 U.S. at 131. In the instant action, as in Norfolk & Western, the RLA provisions for mandatory arbitration of disputes concerning the CBA are procedural, while the substantive provisions at issue come from the CBA itself.

“For purposes of resolving the issue of its jurisdiction, this Court need not determine whether or not the ARB’s ruling was correct. It need only determine that it was colorable under the statute, and not in violation of a clear, mandatory directive within the statute. Thus, the Court finds that the Leedom doctrine does not apply.”

Norfolk Southern Railway Argument #2: 

U.S. Secretary of Labor had exceeded her statutory powers through the decision of the ARB. 

Court’s answer to #2: “[Norfolk Southern Railway] has not shown that it lacks meaningful and adequate means of vindicating its statutory rights.” 

“The second prong that NSR must meet to establish that it is entitled to access to this Court under the Leedom doctrine is that it would be “wholly deprived” of “meaningful and adequate means of vindicating its statutory rights.” Nat’l Air Traffic Controllers, 437 F.3d at 1263. NSR argues that, without a ruling by this Court as to the correctness of the ARB’s decision, it lacks any real possibility of vindicating its right to be free from suit under FRSA after an employee has already pursued mandatory arbitration under RLA § 3. First, because it has been more than 210 days since Koger filed his complaint, and no final decision has been issued by the Secretary, he may withdraw his complaint and seek de novo review by a district court. 49 U.S.C. 20109(d)(3). Koger has not exercised that right as of yet, but NSR claims that, if he does, he will “short-circuit the administrative process.” Pltf.’s Opp. at 39. NSR claims that it would not be sufficient to argue that the ARB decision was wrongly decided in that case, because the district court could not bind the Secretary to its decision. Furthermore, NSR claims that, even if it were assured of court of appeals review at the end of the administrative process, it would not provide a meaningful and adequate opportunity to obtain relief, because § 20109(f) is meant to protect a railroad from having to go through FRSA investigation in the first place. In short, NSR claims that, if it must proceed in the investigation, it has already lost its right under the statute.

“First, NSR’s view of its circumstances is too narrow. The question of whether a party is “wholly deprived” of any means of vindicating its statutory rights should be viewed more broadly. In Leedom, there was no scheme in place for review of the agency’s action by any means. On the other hand, in Sturm, Ruger & Company v. Chao, the Court held that Leedom was inapplicable, because “[a]n employer” in general could challenge the contested practice under the statutory review procedure. Sturm, Ruger & Co. v. Chao, 300 F.3d 867, 874 (D.C. Cir. 2002). Likewise, while NSR may never get the opportunity to challenge the ARB decision before the court of appeals in Koger’s case, it would still have the opportunity to challenge the ARB decision’s interpretation of the statute in another case. NSR may lack clarity on the fate of its claimed statutory rights at this time, but that does not render it “wholly deprived” such that the Leedom doctrine would be appropriate.

“Furthermore, NSR’s latter argument begs the question, in that the Court would have to assume NSR’s position to be the correct one to believe the investigation to be such an unwarranted burden. NSR has not argued that it would experience irreparable harm if forced to go through with Koger’s FRSA investigation—merely that it would have to proceed with an investigation to prove that it does not have to proceed with an investigation. It cannot be said that the practical effect of making NSR go through with this investigation is to somehow foreclose all access to the courts. Cf. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 218 (1994) (finding that the choice of compliance with the agency action until the review process was complete or the incurrence of penalties that were final and payable only after full review was not so “onerous” or “coercive” as to deny a mine operator of a meaningful and adequate means of vindicating its rights).”