1 RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit I.O.P. 32.1(b) File Name: 15a0026p.06 

### UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

N ORFOLK S OUTHERN R AILWAY C OMPANY , Petitioner ,

v

.

T HOMAS E. P EREZ , Secretary of Labor, Respondent

. ┐ │ │ │ │ │ │ │ ┘ No. 14-3274

On Petition for Review from the Final Decision and Order of the United States Department of La bor’s Administrative Review Board. No. 12-106;12-081. Argued: December 4, 2014 Decided and Filed: February 18, 2015 Before: COLE, Chief Judge; GRIFFIN, Circuit Judge; CARR, District Judge. *

_________________ COUNSEL

ARGUED: Robert E. Harrington, III, HARRINGTON, THOMPSON, ACKER & HARRINGTON, LTD., Chicago, Illinois, for Intervenor. John B. Lewis, BAKER & HOSTETLER LLP, Cleveland, Ohi o, for Petitioner. Rachel Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent. ON BRIEF: Robert E. Harrington, III, HARRINGTON, T HOMPSON, ACKER & HARRING TON, LTD., Chicago, Illinois, for Intervenor. John B. Lewis, Dustin M. Dow, BAKER & HOSTETLER LLP, Cleveland, Ohio, for Petitioner. Rachel Goldberg, UNITED STATES DEPARTMENT OF LABOR, Washington, D.C., for Respondent. Harry W. Zanville, San Diego, California, for Amicus Curiae.

* The Honorable James G. Carr, United States District Judge for the Northern District of Ohio, sitting by designation. 

### >No. 14-3274 Norfolk S. Ry. Co. v. Perez Page 2

_________________ OPINION

_________________ GRIFFIN, Circuit Judge. The Federal Ra ilroad Safety Act (the “FRSA”), which prohibits a railroad carrier fr om 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 another provisi on of law for the same allegedly unlawful act of the railroad carrier.” 49 U.S.C. § 20109(f). This case presents the questi on whether § 20109(f) precludes a railroad employee from filing an FRSA claim with respect to an adverse employment decision if he has already claimed that the employment decision violated his collective bargaining agreement and has arbitrated that dispute under the provisions of the Railway Labor Act (the “RLA”). We conclude that it does not and therefore deny Norfolk Southern’s petition for
review.

I.
To give context to the parties’ argumen ts, 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 (2009); Bhd. of Locomotive Eng’rs v.
Baltimore & Ohio R.R. Co. , 372 U.S. 284, 290 (1963). In an atte mpt to diminish the likelihood of strikes and to “encourage use of the nonjud icial processes of negotiation, mediation and arbitration for the adjustment of labor disput es,” 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 (1944). Under the original vers ion of the RLA, the parties we re encouraged—but not required— to submit “minor disputes” (that is, “grievance s arising from the application of collective bargaining agreements to particular situations ” as opposed to disputes over the formation ofNo. 14-3274 Norfolk S. Ry. Co. v. Perez Page 3

collective bargaining agreements ) to voluntary arbitration. Union Pac. R.R. Co. , 558 U.S. at 72 (citation omitted).
But the original version of the RLA was largely ineffectual. Many of the railroads refused to participate in vol untary arbitration, and even arb itrated disputes frequently deadlocked, given that management and labor re presentatives were equally represented on the
arbitration boards. See Union Pac. R.R. Co. v. Price , 360 U.S. 601, 610 (1959).
Dissatisfied with the voluntary nature of ar bitration under the RLA, railroad labor organizations urged Congress to amend it by manda ting 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, supplemented by neutral tie-breakers. Id. at 611–12; see also 45 U.S.C. § 153 Second. As a concession for forcing the railroad carriers into arbitration, railroad employees agreed that “[arbitration] awards on grievances submitted by or on behalf of employees were to be final and binding upon the affected employees. The employ ees were willing to gi ve up their remedies outside of the statute provided th at a workable and binding statut ory scheme was established to settle grievances.” Price , 360 U.S. at 613.
In 1934, Congress amended the RLA consiste nt with the unions’ request, thereby mandating arbitration of grievanc es 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. See 45 U.S.C. § 153 First (i); Andrews v. Louisville & Nashville R.R. Co. , 406 U.S. 320, 322 (1972). The pertinent provisions of the RLA have remained intact to this day. Thus, a railroad employee may pursue a grieva nce under his collective bargaining agreement only pursuant to the scheme of arbitration mandated by the RLA, and—except in extremely
narrow circumstances 1 —may not seek judicial review of the outcome in any court. Price , 360 U.S. at 617; see Bhd. of Locomotive Eng’rs & Trai nmen v. United Transp. Union , 700 F.3d 891, 899–902 (6th Cir. 2012).

1 In 1966, the RLA was amended to permit parties to challenge adverse arbitration awards in the very narrow circumstances that the Board lacked jurisdiction or that the Boar d’s decision was beset by fraud or corruption. See 45 U.S.C. § 153 First (q); Union Pac. R.R. Co. , 558 U.S. at 75.No. 14-3274 Norfolk S. Ry. Co. v. Perez Page 4

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 th e late nineteenth century was to start working for a railroad. “In 1888 the odds against a railroad brakeman’s dying a natural deat h were almost four to one,” and a railroad switchman could be expected to die, on av erage, after only seven years on the job. Bhd. of R.R. Trainmen v. Virginia ex rel. Va. State Bar , 377 U.S. 1, 3 (1964). In response to the railroads’ substantial human toll, Congress began enacting le gislation requiring that the industry comply with improved, minimal safety standards. See, e.g. , Wilkerson v. McCarthy , 336 U.S. 53, 68 (1949) (Douglas, J., concurring) (noting pur pose of Federal Employers’ Liability Act); Johnson
v. S. Pac. Co. , 196 U.S. 1, 19 (1904) (noting laws requ iring safer methods of railway car coupling); cf. Norfolk & W. Ry. Co. v. Hiles , 516 U.S. 400, 406 (1996); Ries v. Nat’l R.R. Passenger Corp. , 960 F.2d 1156, 1158 (3d Cir. 1992).
Congress continued in this ve in when it enacted the Federa l Railroad Safety Act in 1970, a statutory scheme intended to “promote safety in every area of railroad operations and reduce
railroad-related accide nts and incidents.” Norfolk S. Ry. Co. v. Shanklin , 529 U.S. 344, 347 (2000) (quoting 49 U.S.C. § 20101). Although the orig inal version of the FRSA did not prohibit
railroad carriers from retaliati ng against employees who alerted au thorities about a violation of federal safety regulations, Congress amended the Act in 1980 to incl ude an anti-retaliation provision. See Federal Railroad Safety Authorizati on Act of 1980, Pub. L. 96–423, § 10, 94 Stat. 1811 (1980); Rayner v. Smirl , 873 F.2d 60, 63 (4th Cir. 1989).
But the anti-retaliation provision came with a catch: it contained an election-of-remedies provision that required an empl oyee seeking protection “under any other provision of law in connection with the same allegedl y 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 th e bill in the House of Representatives, the election-of-re medies provision was intended to
clarify[] the relationship between the remedy provided he re and a possible separate remedy under OSHA. Certain ra ilroad employees, such as employees working in shops, could qualify for both the new remedy provided in thisNo. 14-3274 Norfolk S. Ry. Co. v. Perez Page 5

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 lit igation and inconsis tent results.
126 Cong. Rec. 26532 (Sept. 22, 1980) (statement of Rep. Florio).

Under the 1980 version of the statute, em ployees who sought to bring an FRSA retaliation claim were required to do so pursuant to the manda tory 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, howev er, 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 49 U. S.C. § 20109). Most significantly, the 2007 amendments permitted employees to file FRSA clai ms with the Secretary of Labor, rather than requiring them to proceed through the RLA arbitration process. See 49 U.S.C. § 20109(d).
Several other provisions were added to § 20109, as well. Among them was subsection (h), which now provides, “Nothing in this section shall be d eemed to diminish the rights, privileges, or remedies of any employee under any Federal or State law or under any collective bargaining agreement. The rights and remedies in this section may not be waived by any agreement, policy, form, or condition of employment.” 49 U.S.C. § 20109(h).
According to the pertinent conference repor t, the 2007 FRSA amendments were intended to “expand[]” the protections for railroad empl oyees, to “enhance[]” employees’ “administrative and civil remedies,” and “to ensure that employees can report their concer ns without the fear of possible retaliation or discrimination from em ployers.” H.R. Rep. No. 110-259, at 348 (2007) (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 re move the preexisting election-of-remedies provision in § 20109(f), which purports to prohib it an employee from “seek[ing] protectionNo. 14-3274 Norfolk S. Ry. Co. v. Perez Page 6

under both this section and another provision of la w for the same allegedly unlawful act of the
railroad carrier.” Id.

II.
The facts relevant to the parties’ dispute in this case are not complicated. Marcus Kruse, a train conductor employed by Norfolk Souther n, 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 Ra ilway Labor Act, 45 U.S.C. § 153 First (i), claiming that the suspension violated Kruse’s collective bargaining agreement inasmuch as it was not supported by good cause. Both the on-property investig ation and the arbitration board (convened under § 153 Second) conc luded that Norfolk Southern “was justified” in holding Kruse responsible for the train’s speed, althou gh the board mitigated Kruse’s punishment by reducing his suspension to a thirty-day defe rred suspension with pay for lost time.
While his grievance-related appeal was s till pending before the arbitration board, Kruse filed an FRSA complaint with the Department of Labor, claiming that his suspension was in retaliation for reporting his prior work-relate d 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 Norfolk Southern had suspended him in retali ation for reporting his workplace injury.
Norfolk Southern appealed to the Departme nt of Labor’s Administrative Review Board (the “Board”), challenging only the ALJ’s election-of-remedies ru ling. 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 employ ee’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 49 U.S.C. § 20109(d)(4).No. 14-3274 Norfolk S. Ry. Co. v. Perez Page 7

III.
The only issue contested by the parties is wh ether 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 Bo ard pursuant to the FRSA is governed by the Administrative Procedure Act, see 49 U.S.C. § 20109(d)(4), meaning that the Board’s legal
conclusions are reviewed de novo. See 5 U.S.C. § 706 (“[T]he reviewing court shall decide all relevant questions of law.”); Consol. Rail Corp. v. U.S. Dep’t of Labor , 567 F. App’x 334, 338 (6th Cir. 2014).
Norfolk Southern argues that arbitration unde r the RLA is encompassed within the plain meaning of § 20109(f)’s di rective that no employee shall “seek protection unde r both this section and another provision of law for th e same allegedly unlawfu l act of the railroad carrier.” If the statutory language is unambiguous—e ither in favor of Norfolk Southern or against it—then there is no need for us to engage in any Chevron analysis, as Congress coul d not have intended for an agency’s policy expertise to give definition to a gray area if Congress did not leave the area gray.
See Chevron, U.S.A., Inc. v. Natu ral Res. Def. Council, Inc. , 467 U.S. 837, 842–43 (1984); see also Util. Air Regulatory Grp. v. EPA , 134 S. Ct. 2427, 2445 (2014) . Although the parties muddy the waters by relying on previ ous versions of § 20109(f) in an attempt to determine what the current wording of the statut e means, “[t]he starting point in discerning congressional intent is the existing statutory text, and not the predecessor statutes.” Lamie v. U.S. Trustee , 540 U.S. 526, 534 (2004) (internal citation omitted).
We agree with the Secretary that the pl ain language of § 20109(f) defeats Norfolk Southern’s position. Notably, however, Norfolk Sout hern is correct about at least one portion of the analysis: there is no question both that th e RLA is “another provision of law” and that a collective bargaining agreement is not. The terms of a statute must be interpreted “as taking their ordinary, contemporary, common meaning,” Sandifer v. U.S. Steel Corp. , 134 S. Ct. 870, 876 (2014) (citation omitted), and it is beyond di spute that a federal st atute ordinarily is a “provision of law” whereas a private contract is not. The parties’ long discussions regarding judicial glosses of phrases like “a ll other law” as used in different statutes are irrelevant to the meaning of the much narrower “provision of law” language used in the FRSA. See, e.g. , NorfolkNo. 14-3274 Norfolk S. Ry. Co. v. Perez Page 8

& W. Ry. Co. v. Am. Train Dispatchers Ass’n , 499 U.S. 117, 120 (1991) (c onstruing the meaning of the phrase “all other law”).
Given that the RLA clearly is a “provision of law,” the partie s’ extended duel over whether the RLA is the precise type of legal pr ovision envisioned by § 20109(f) is somewhat off the mark. Instead, as the Seve nth Circuit recognized when de ciding the same election-ofremedies issue, the operative question is not whet her the RLA is a “provision of law” within the meaning of § 20109(f) but is inst ead whether Kruse sought “protec tion” under the RLA when he arbitrated his grievance against Norfolk Southern regarding his suspension. See Reed v. Norfolk S. Ry. Co. , 740 F.3d 420, 423 (7th Cir. 2014). Of course, as the Seventh Circuit also observed,
these considerations are interrelated. See id. at 423 n.2. In other wo rds, the Secretary’s argument that the RLA is not “another provision of law” w ithin the meaning of § 20109(f) amounts to an argument that the RLA is not the type of law that one can “s eek protection” under. In the Secretary’s view, the RLA establishes only a procedural framework that can be used in order to seek protection under something else—namely, a coll ective bargaining agreement.
Although we do not doubt that the arbitration procedures mandated by the RLA provide railroad carriers and employees w ith significant substantive benefits , we agree with the Secretary that the FRSA’s election-of-remedies provi sion does not reach employees in Kruse’s circumstances. A railroad employee does not “s eek protection” under the RLA within the plain meaning of § 20109(f) by invoking RLA-mandated arbitration when pursuing a grievance under a collective bargaining agreement.
We must presume that Congress says wh at it means and means what it says, Conn. Nat’l
Bank v. Germain , 503 U.S. 249, 254 (1992), and therefore must apply a statute as it is written, giving its terms the ordinary meaning that th ey carried when the statute was enacted. Sandifer , 134 S. Ct. at 876. Generally, to “p rotect” means “to defend or guard from attack [or] loss . . . ,” to “cover or shield from injury or da nger,” or to “screen [or] shelter.” Webster’s Unabridged Dictionary of the English Language 1553 (2d ed. 2001). To seek “prot ection,” in turn, ordinarily means to seek “shelter, defen[s]e, or preservation from harm.” Oxford English Dictionary 678 (2d ed. 1989).No. 14-3274 Norfolk S. Ry. Co. v. Perez Page 9

Taking the terms of § 20109(f) at face value, we conclude that an employee “seeks protection” under a statute only if he seeks to use it as a shelter—that is, only if the statute is the source of the substantive remedy for the harm that the employee is attempting to avert. The rights guaranteed to the employee in the statute must be the barrier that is interposed between the employee and the threatened harm; it is not e nough if the statute guara ntees the employee only a procedural mechanism that enables him to shelte r behind some other, i ndependent legal bulwark.
Thus, an employee possibly could “seek prot ection” under the RLA if he sought to validate his right to arbitrate against a railroad carrier that did not want to participate in arbitration. 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 ri ght that is guaranteed to him by the RLA. Certainly, he must leverage the RLA in order to obtain redress for the violation 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 collectiv e bargaining agreement—not the RLA—that is his shield.

Both the Fifth and Seventh Circuits have c onstrued § 20109(f) in largely the same way, and we see no need to vary signi ficantly from their approach. See Grimes v. BNSF Ry. Co. , 746 F.3d 184, 191 (5th Cir. 2014); Reed , 740 F.3d at 423. As Reed observed, such a reading fits harmoniously both with the remainder of § 20109(f) itself and within the context of the 2007 amendments, which added subsectio n (h)’s disclaimer that “[n]othing 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 collec tive bargaining agreement.” See Reed , 740 F.3d at 425–26. See
also Util. Air Regulatory Grp. , 134 S. Ct. at 2441 (“[T]he words of a statute must be read in their
context and with a view to thei r place in the overall statutory scheme.” (citation omitted)).
We recognize that, as Norfolk Southern st renuously contends, ther e 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 di spute-resolution process that w ould protect employees from theNo. 14-3274 Norfolk S. Ry. Co. v. Perez Page 10

inequitable vagaries of the preexis ting voluntary arbitration regime. Price , 360 U.S. at 613; United Transp. Union , 700 F.3d at 899. Cf

. Hertz Corp. v. Friend , 559 U.S. 77, 92 (2010) (noting in the diversity-j urisdiction context that the availability of a fe deral forum may provide substantive protections). Moreover, the RLA excludes all alternative methods of resolving workplace grievances, see Union Pac. R. Co. , 558 U.S. at 72, meaning that the RLA is “the law which gives legal and binding effect to collective agreements.” Dispatchers , 499 U.S. at 132; see also, Detroit & Toledo Shore Line R.R. Co. v. United Transp. Union , 396 U.S. 142, 156 (1969). And because “[t]he proces sing of disputes through the grievance machinery is actually a vehicle by which meaning and content are give n to the collective bargaining agreement,” United Steelworkers of Am. v. Warrior & Gulf Nav. Co. , 363 U.S. 574, 581 (1960), there is an argument to be made that Kruse sought at least some de gree of “protection” under the RLA when he invoked the only available process th at would construct the substant ive meaning of his collective bargaining agreement.
But even if we accepted this line of reasoni ng and concluded that § 20109(f) applies by its plain terms to Kruse’s claim, Norfolk Southern still could not surmount the barrier imposed by § 20109(h)’s subsequent addition to the statute. Subsection (h) preclu des applying § 20109(f) to “diminish” an employee’s rights under “any” law or “any” collective bargaining agreement.
Id. But it seems quite clear that § 20109(f) dilutes an employee’s ri ghts whenever it is enforced. Restricting an employee to only on e of the numerous arrows in hi s quiver obviously reduces the number of options available to him. Even mo re fundamentally, forcing an employee to choose either option A or option B dilutes the value of his rights under both opt ions. The election-ofremedies provision imposes a cost upon an employ ee’s decision to choose option A: he must forfeit option B. Thus, the value of option A is diluted in proportion to the cost imposed by the concomitant loss of option B. U nder the election-of -remedies provision, in other words, even the option ultimately chosen by the employee is rendered less valuable to him by virtue of what he has given up in order to choose it.
Because the operation of subs ection (f) is prohibited by su bsection (h), § 20109 contains a linguistic contradiction. And despite Norfolk Southern’s argument, multiple considerations point in favor of reading subsection (h) as trumping subsection (f), rather than vice versa. EvenNo. 14-3274 Norfolk S. Ry. Co. v. Perez Page 11

Norfolk Southern admits that the Department of Labor’s interpretati on of the statute is entitled to be viewed as persuasive authority if not given Chevron deference. See Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944); Chao v. Occupational Safety & Health Review Comm’n , 540 F.3d 519, 526 (6th Cir. 2008). And the Department’s c onclusion that “railroad employees [are] not . . . limited in pursuing their rights under the whistleblower statute [ i.e. , the FRSA,] despite also enforcing their contractual rights in arbitration [ i.e. , under the RLA],” aligns with the legislative history. Mercier , 2011 WL 4889278, at *7. No one doubts th at Congress’s intent in adding subsection (h) in 2007 was to expand employees’ pr otections, and in doing so, it likely overrode subsection (f)’s purpose of barri ng “resort to two separate remedies.” 126 Cong. Rec. 26532 (Sept. 22, 1980) (statement of Rep. Florio). Th us, we would have littl e trouble concluding that, where subsection (f) conflicts with subsection (h), the latter controls instead of the former. See Nat’l Ass’n of Home Builders v. Defenders of Wildlife , 551 U.S. 644, 662 (2007) (recognizing
that the more recent of two statut es will control when they are in irreconcilable conflict). As a result, even assuming that Norfolk Southern’s po sition was not defeated by the plain language of subsection (f), it still would be outflanked 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 pr otection under the RLA when he arbitrated his grievance, the arbitration did not trigger the FRSA’s election-of-remedies provision in § 20109(f). The Board properly rejected No rfolk Southern’s a ssertion otherwise.

IV.
For these reasons, we deny the petition for review.