West Virginia Federal Court Holds FRSA Retaliation Claim Not Affected By Arbitration Pursuant to Collective Bargaining Agreement

A railroad terminated a conductor after determining he was partially responsible for a train derailment.  The conductor appealed his termination pursuant to the arbitration provisions in his collective bargaining agreement and the Railroad Labor Act (“RLA”).  He separately filed an administrative complaint for retaliation under the Federal Railroad Safety Act (“FRSA”), alleging he was terminated for reporting an injury that occurred during the derailment.  After the Department of Labor failed to issue a final decision within the statutorily prescribed 210-day period, the conductor brought his FRSA claim to federal court.  The railroad sought to dismiss the FRSA claim for lack of subject matter jurisdiction, arguing that because the FRSA prohibits an employee from “seek[ing] protection under both [FRSA] and another provision of law,” the district court lacked jurisdiction where the conductor had already engaged in arbitration pursuant to his collective bargaining agreement and the RLA.

On June 19, the U.S. District court for the Southern District of West Virginia rejected the railroad’s argument, noting that other jurisdictions, including the Fifth and Seventh Circuit Courts of Appeals, had specifically rejected this argument.  The court concluded that plaintiffs do not waive FRSA retaliation rights by pursuing arbitration claims based on collective bargaining agreements and RLA procedures.  The court noted that the conductor’s rights were only indirectly related to the RLA, which provides merely a “means by which [a collective bargaining] agreement may be reached.”  Because the court instead concluded the conductor’s claims were based directly on his contractual collective bargaining agreement, the court found he did not actually seek protection under the RLA.  Therefore, the election of remedies provision did not apply, and the court held it had jurisdiction to hear the FRSA claim.