Railroaders frequently ask, "What happens when the railroad fires an injured railroader in retaliation for getting injured on-the-job?" In the current railroad / labor arena, unfortunately, this is a situation that needs to be addressed.
The Railway Labor Act provides a remedy when the railroad wrongfully terminates an employee. The union typically provides representation for the terminated employee. The case progresses through the stages of the grievance process until a Board of Adjustment issues a final decision. Generally, there is no court review of decisions of an adjustment board. The only exception is in extreme cases where fraud can be conclusively shown.
In some cases, when a fired employee has evidence that the railroad terminated his employment in retaliation for the employee exercising his rights under the FELA - Federal Employers' Liability Act, a lawsuit against the railroad for retaliatory discharge is recognized. It is my opinion that the tort of retaliatory discharge should be enlarged to include those cases where the railroad fires an employee in retaliation for reporting an injury. However it is unlikely that in the current political climate, courts would expand union employee rights against corporate wrongdoers.
In a recent opinion, Judge Blanche Manning of the U.S. District Court for the Northern District of Illinois, Eastern Division, explained that minor disputes must be resolved through the Railway Labor Act. Since termination is considered a minor dispute, the Railway Labor Act's arbitration process provides a remedy. When the Railway Labor Act provides a remedy, it is exclusive and no lawsuit can be filed. [Read Judge's Manning's Memorandum decision in "McCann v. Soo Line" (pdf format)]
However, as Judge Manning explained, a narrow exception exists for retaliatory discharge cases. An important public policy supports an injured railroader exercising his rights under the FELA. If a railroad fires the employee for asserting a FELA claim, the railroad violates an important public policy. The public policy in favor of an employee pursuing a FELA claim trumps the exclusive remedy provision of the Railway Labor Act.
The only caveat is that the court will not interpret a Collective Bargaining Agreement. If a case is based on the railroad violating the Collective Bargaining Agreement (as opposed to public policy), the employee can not file a lawsuit and the only remedy is Railway Labor Act arbitration. In Judge Manning's case, the employee was injured, went to trial and pursued an aggressive post judgment enforcement action. The railroad was one step away from being held in contempt. When the railroader sustained a relatively minor injury a few months later, he was terminated. A FELA case and retaliatory discharge lawsuit was filed. The railroad moved to dismiss pursuant to the Railway Labor Act. In a memorandum decision, Judge Manning denied the railroad's motion to dismiss.
If you are injured at work and your employment is terminated, your first and foremost remedy is through the Railway Labor Act arbitration process. If you have evidence that you were terminated because you asserted your rights under the FELA, you may have a claim against the railroad for retaliatory discharge. Hopefully, some day soon, a court will recognize the truth that railroads continually fire employees for no reason other than they were hurt on the job. Then, maybe the tort of retaliatory discharge will be expanded to include termination for reporting a work injury.