Justin Reed v. Norfolk Southern Railway Company

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2307
J USTIN R EED,
Plaintiff‐Appellee,
v.
NORFOLK SOUTHERN R AILWAY C OMPANY,
Defendant‐Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12‐CV‐873 — Sharon Johnson Coleman, Judge.
____________________
A RGUED D ECEMBER 2, 2013 — D ECIDED J ANUARY 14, 2014
____________________
Before BAUER and FLAUM, Circuit Judges, and V AN
BOKKELEN, District Judge.*
FLAUM, Circuit Judge. This case is about the meaning of
the election‐of‐remedies provision in the Federal Railroad
Safety Act (“FRSA”). The defendant, Norfolk Southern
Railway, claims that this provision bars a railroad employee
who has been wrongfully discharged from obtaining relief
* Of the Northern District of Indiana, sitting by designation.

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through both grievance‐arbitration pursuant to the Railway
Labor Act and an administrative claim or lawsuit under
FRSA. We disagree. Although our reasoning differs from the
district court’s, we too conclude that nothing in FRSA bars
an employee from bringing both claims.
I. Background
In April 2009, Justin Reed, a trackman with Norfolk
Southern Railway (“NSR”), experienced a bout of severe
abdominal pain while working. He claimed that, after he
informed his supervisor, company officials were reluctant to
provide medical treatment and pressured him into signing a
statement that he had not been “injured on or at work.”
Reed was on medical leave for about seven months. Soon
after he returned to work, a company claims agent urged
him to state whether he thought the April incident was
work‐related. Reed admitted that, notwithstanding his
earlier attestation, he felt that his work did play a role in his
injury. NSR responded by firing Reed for making
inconsistent statements and for violating Rule N, an internal
rule requiring same‐day reporting of on‐site injuries.
Reed was a member of the Brotherhood of Maintenance
of Way Employes Division of the International Brotherhood
of Teamsters, which had negotiated a collective bargaining
agreement with NSR. Reed and the union believed that his
termination violated the terms of this agreement. Following
his termination—and pursuant to section 3 of the Railway
Labor Act, 45 U.S.C. § 153—Reed appealed his dismissal to
an arbitral board, Public Law Board 6394.
While the arbitration proceedings before the Board were
pending, Reed also filed a complaint with the Occupational

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No. 13‐2307 3
Safety and Health Administration, alleging that NSR had
violated the Federal Railroad Safety Act. FRSA prohibits
railroad carriers from, among other things, discriminating
against employees who “notify, or attempt to notify, the
railroad carrier … of a work‐related personal injury.” 49
U.S.C. § 20109(a)(4). After waiting an appropriate period of
time, see id. § 20109(d)(3), Reed brought an original action in
federal district court.
Approximately seven months after Reed filed his FRSA
suit, Public Law Board 6394 issued its opinion. The Board
concluded that Reed’s violations of company policy were not
grounds for dismissal and awarded him reinstatement
without back pay. Four days later, NSR moved for summary
judgment in Reed’s FRSA suit. By choosing to arbitrate his
grievance before the Public Law Board, the company
maintained, Reed had triggered FRSA’s election‐of‐remedies
provision:
Election of Remedies.— 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.
29 U.S.C. § 20109(f). Thus, NSR argued, Reed had closed the
courthouse door to his FRSA claim.
The district court denied NSR’s motion. Reed v. Norfolk
Southern Ry. Co., 2013 WL 1791694 (N.D. Ill. Apr. 26, 2013). It
reasoned that the arbitration proceedings were not an
“election” of remedies because arbitration was mandatory,
and that a collective bargaining agreement was not “another
provision of law” because it arose out of a private agreement

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4 No. 13‐2307
rather than a federal or state statute. NSR successfully
moved for interlocutory review.
II. Discussion
We said above that Reed arbitrated his grievance
pursuant to the Railway Labor Act because, in the rail
industry, such arbitration is required by statute. See Andrews
v. Louisville & Nashville R.R. Co., 406 U.S. 320, 323 (1972)
(“[T]he compulsory character of the administrative remedy
provided by the Railway Labor Act … stems not from any
contractual undertaking between the parties but from the
Act itself.”); Brown v. Ill. Cent. R.R. Co., 254 F.3d 654, 658 (7th
Cir. 2001). Specifically, 45 U.S.C. § 153 First (i) requires that
disputes growing out of collective bargaining agreements
initially be handled through the rail carrier’s internal
processes, but if those processes fail either party has the
right to appeal to the National Railroad Adjustment Board.
Another provision, 45 U.S.C. § 153 Second, permits unions
and rail carriers to jointly establish special adjustment
boards in lieu of the National Railroad Adjustment Board;
one such adjustment board was Public Law Board 6394, the
body that heard Reed’s appeal.
NSR sees the Railway Labor Act as the “provision of
law” it needs to get its foot in the door of § 20109(f). In
support, NSR relies on a Supreme Court decision, Norfolk &
Western Railway Co. v. American Train Dispatchers Ass’n, 499
U.S. 117 (1991), that addressed a similar phrase in the
Interstate Commerce Act. The question in Dispatchers was
whether a provision that exempted certain consolidating rail
carriers “from the antitrust laws and from all other law,
including State and municipal law, as necessary to let [it]
carry out the transaction” operated to relieve the carriers

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No. 13‐2307 5
from obligations incurred in a collective bargaining
agreement. Id. at 120 (emphasis added) (quoting 49 U.S.C.
§ 11341(a) (1988)). The Court held that it did. In particular,
the Court identified the Railway Labor Act—“the law which
gives legal and binding effect to collective agreements” in
the rail industry—as “the law that … is superseded when an
ICC‐approved transaction requires abrogation of collective‐
bargaining agreements.” Id. at 132 (internal citations and
quotation marks omitted).
Just because the Supreme Court treated the Railway
Labor Act as “law” for Interstate Commerce Act purposes,
however, does not mean that we must treat the Act as “law”
for FRSA purposes.1 Dispatchers shows that such a reading is
permissible, but it does not require that outcome if statutory
text and context point the other way. Simply put, Dispatchers
does not lay down a mandatory rule about the scope of the
term “law” in federal statutes. See American Airlines, Inc. v.
Wolens, 513 U.S. 219, 229 n.6 (1995) (distinguishing “all law”
in the Airline Deregulation Act of 1978 from “any other law”
in Dispatchers and noting that each phrase had to be
interpreted in light of the “statute and case before us”).
FRSA, in other words, must be read on its own terms.
Here, the district court—like other district courts that
have addressed this question, and also like the Department
of Labor’s Administrative Review Board—concluded that
1 NSR does not contend that the collective bargaining agreement itself is
a provision of law. We agree. See, e.g., Dispatchers, 499 U.S. at 130 (“A
contract has no legal force apart from the law that acknowledges its
binding character.”); 17A Am. Jur. 2d Contracts § 1 (2013) (“A contract is
not a law, nor does it make law: it is the agreement plus the law that
makes the ordinary contract an enforceable obligation.”).

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6 No. 13‐2307
the Railway Labor Act was not a “provision of law” within
the meaning of § 20109(f). Accord Ray v. Union Pac. R.R. Co.,
2013 WL 5297172, at *6–8 (S.D. Iowa Sept. 13, 2013); Ratledge
v. Norfolk Southern Ry. Co., 2013 WL 3872793, at *10–17 (E.D.
Tenn. July 25, 2013); Mercier v. Union Pac. R.R., 2011 WL
4889278 (ARB Sept. 29, 2011); cf. Battenfield v. BNSF Ry. Co.,
2013 WL 1309439, at *4 (N.D. Okla. Mar. 26, 2013) (finding
that conclusion “at least colorable”); Norfolk Southern Ry. v.
Solis, 915 F. Supp. 2d 32, 43–45 (D.D.C. Jan. 3, 2013) (same).
All of these authorities analyzed NSR’s argument
primarily in terms of the scope of “provision of law,” and as
just described, nothing in Dispatchers forecloses this result.
That said, we determine the meaning of the election‐of‐
remedies provision de novo, and we are reluctant to focus
only on that particular snippet of text. In our view, there is a
conceptually simpler way to address the question. For even
assuming arguendo that the Railway Labor Act is “law”, it
must also be the case that Reed “sought protection under” that
law. Giving those words their plain meaning, we cannot see
how he did.2
2 The difference between our approach and the district court’s may be
more terminological than anything. Often, arguments designed to show
that the Railway Labor Act is not “law” can just as easily be used to
show that it is not the kind of law under which one can “seek protection.”
See, e.g., Ratledge, 2013 WL 3872793, at *14 (“[T]he rights a plaintiff seeks
to enforce [in the Railway Labor Act process]” are “contractual rights …
[a]nd it is those rights, not the RLA, under which the plaintiff sought
protection.” (emphasis added)); Reed, 2013 WL 1791694, at *4 (“Reed’s
right to be terminated only for just cause … arises not out of any
provision of the RLA, but instead out of the collective bargaining
agreement.”).

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No. 13‐2307 7
In the first place, the Railway Labor Act “does not
undertake governmental regulation of wages, hours, or
working conditions. Instead it seeks to provide a means by
which agreement may be reached with respect to them.”
Terminal R.R. Ass’n v. Bhd. of R.R. Trainmen, 318 U.S. 1, 6
(1943). In other words, the Act is entirely agnostic as to the
content of any collective bargaining agreement. (Reed’s
appeal to Public Law Board 6394 is a case in point; as the
district court noted, the claim he asserted arose solely from
his collective bargaining agreement.) Likewise, the Act’s
streamlined arbitration procedures are intended only to “see
that disagreement about [working] conditions does not reach
the point of … threaten[ing] continuity of work, not to
remove conditions that threaten the health or safety of
workers.” Id.; see also Hawaiian Airlines, Inc. v. Norris, 512 U.S.
246, 252 (1994); Elgin, Joliet & Eastern Ry. Co. v. Burley, 325
U.S. 711, 725–28 (1945).
We doubt that a person who arbitrates a grievance based
on a private contractual agreement necessarily does so
“under” federal law merely because a federal statute
requires that the claim be brought before an adjustment
board. Cf. Graf v. Elgin, Joliet & Eastern Ry. Co., 697 F.2d 771,
776 (7th Cir. 1983) (“[T]he fact that an activity is regulated by
a federal statute, as collective bargaining in the railroad
industry is regulated by the Railway Labor Act,” does not
mean that “disputes between private parties engaged in that
activity arise under the statute” for jurisdictional purposes).
But even if we grant that Reed was proceeding under the
Railway Labor Act, it seems quite odd to say that he was
seeking protection under it. Again, the Railway Labor Act
offers Reed no protection at all; it merely instructs him to
bring any grievances that cannot be resolved on‐property to

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8 No. 13‐2307
a specific forum. By appealing to this forum, Reed did not
seek protection under the Railway Labor Act any more than
a litigant seeks protection under the jurisdictional statute for
the Court of Appeals for the Federal Circuit, 28 U.S.C.
§ 1295, when he files an appeal from a final decision of the
United States Court of Federal Claims.
Perhaps, to use the Secretary of Labor’s example,3 an
employee could be seen as seeking protection under the
Railway Labor Act if he brought a claim based on one of the
Act’s few substantive obligations: for instance, if a railroad
carrier refused to participate in mandatory arbitration in the
first place. But where, as here, the railroad employee’s claim
is based only on rights set forth in his collective bargaining
agreement, we conclude that he is seeking protection under
that agreement and not under the Railway Labor Act. As the
Supreme Court has put it, “[i]n submitting his grievance to
arbitration, an employee seeks to vindicate his contractual
right under a collective bargaining agreement.” Alexander v.
Gardner‐Denver Co., 415 U.S. 36, 49 (1974) (emphasis added).
NSR analogizes the Railway Labor Act to 42 U.S.C.
§ 1983, which likewise is not a source of substantive rights,
but this analogy is inapt. Section 1983 provides a plaintiff
with a cause of action for the deprivation of federal
constitutional or statutory rights. See, e.g., Wilder v. Virginia
Hosp. Ass’n, 496 U.S. 498, 508 (1990). The Railway Labor Act
directs a claimant to appeal to a particular arbitral forum.
Even if we were to say, colloquially, that plaintiffs “seek
3 The Secretary of Labor filed an amicus brief at our invitation, reiterating
and expanding upon the view the Department expressed in Mercier, 2011
WL 4889278.

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No. 13‐2307 9
protection” under § 1983 (and not the applicable substantive
federal right they aim to vindicate), we do not see how the
same is true of the Railway Labor Act.
NSR also contends that nothing in FRSA requires that the
“provision of law” itself create the substantive rights
invoked by the employee. This argument shears those words
of their context. FRSA states that an employee may not “seek
protection under both this section and another provision of
law.” 49 U.S.C. § 20109(f). It is obvious what it means to seek
protection under FRSA: to bring a claim founded on one of
the statute’s substantive protections. See id. § 20109(d)(1)
(“An employee who alleges … discrimination in violation of
subsection (a), (b) or (c) of this section, may seek relief in
accordance with the provisions of this section … .”). To seek
protection under another provision of law must mean
something similar: to bring a claim founded on a comparable
substantive protection. For example, we agree that if Reed
brought a claim under the Occupational Safety and Health
Act, which extends whistleblower protection to employees
that file a workplace safety complaint or take other protected
action, the election‐of‐remedies provision would bar a
successive FRSA claim. See 29 U.S.C. § 660(c). But nothing in
45 U.S.C. § 153 offers substantive protection akin to 49 U.S.C.
§ 20109; the Railway Labor Act offers no protection for Reed
to seek.4
4 The meager legislative history behind § 20109(f) supports precisely this
interpretation. NSR points us to a floor speech by Congressman James
Florio, the manager of the bill in the House of Representatives:
We also agreed to a provision clarifying the relationship between
the remedy provided here and a possible separate remedy under
OSHA. Certain railroad employees, such as employees working

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10 No. 13‐2307
In sum, although the Railway Labor Act is indeed a
federal statute—and thus, we may assume, another
provision of law—it is strained to say that Reed sought
protection under it by appealing his grievance to the special
adjustment board. Rather, Reed sought protection under his
collective bargaining agreement. The plain meaning of the
statute therefore tells us that Reed is not precluded from
obtaining relief under FRSA simply because he appealed his
grievance to Public Law Board 6394.
Although we may stop here, we note that our conclusion
is buttressed by FRSA’s history. When it was first enacted,
the election‐of‐remedies provision read as follows:
Whenever an employee of a railroad is afforded
protection under this section and under any other
provision of law in connection with the same
allegedly unlawful act of an employer, if such
employee seeks protection he must elect either to seek
relief pursuant to this section or pursuant to such
other provision of law.
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). NSR argues that this excerpt
reflects a broad purpose to prevent all “unneeded litigation and
inconsistent results.” We believe that overreads Congressman Florio’s
statement, which is firmly rooted to the “existing remedy” under the
Occupational Safety and Health Act.

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No. 13‐2307 11
Pub. L. No. 96‐423, § 10, 94 Stat. 1811, 1815–16.5 The original
phrasing emphasizes that one can only seek protection
under a provision of law that itself affords protection for
retaliatory acts. FRSA obviously affords such protection. See
49 U.S.C. § 20109(a)–(c). But as we have said, in this case the
Railway Labor Act afforded Reed no substantive protections
at all. It merely afforded a statutory framework for collective
bargaining and any disputes that arise therefrom.
In addition, in 2007, Congress added a provision to FRSA
affirmatively disclaiming any intention to diminish railway
employees’ rights. See 49 U.S.C. § 20109(h) (“Nothing in this
section shall be deemed to diminish the rights, privileges, or
remedies of any employee under any Federal or State law or
under any collective bargaining agreement.”) NSR argues
that its interpretation does not “diminish” any employee
rights or remedies because an employee always remains free
to bring a FRSA claim or a grievance, just not both. We
suppose this may not literally be a diminution of either
remedy, although it is a fine distinction—one that sits
uneasily with the saving clause’s broad language. By
contrast, § 20109(h) fits snugly with our reading of
§ 20109(f). The election‐of‐remedies provision only bars
railroad employees from seeking duplicative relief under
overlapping antiretaliation or whistleblower statutes; it does
5 Congress restyled the provision in 1994 and again, very slightly, in
2007; all parties agree the 1994 changes were nonsubstantive and that the
meaning of the provision has remained constant. See S. Rep. No. 103‐265,
103d Cong., 2d Sess., at 5 (1994) (“As in other codification bills enacting
titles of the United States Code into positive law, this bill makes no
substantive change in the law.”).

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12 No. 13‐2307
not diminish their rights or remedies under collective
bargaining agreements in any way.
To be clear, these additional sources confirm our
interpretation but do not control it. We find that the plain
meaning of 49 U.S.C. § 20109(f) is enough.
III. Conclusion
We choose to hang our textual analysis on a different peg
than the district court and the Secretary of Labor, but our
conclusion is the same: FRSA’s election‐of‐remedies
provision is concerned with provisions of law that grant
workers substantive protections, not with federal or state
law writ large. The Railway Labor Act is not such a
provision, and so we A FFIRM the district court’s order
denying summary judgment.

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