Armando Gonzalez v. Southern Pacific Transportation Company

755 F.2d 1179, 1985 U.S. App. LEXIS 28532, 102 Lab. Cas. (CCH) 11,416

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 28, 1985
• Docket: 84-1149
• Status: Published

Opinions

ALVIN B. RUBIN, Circuit Judge:

It is a criminal offense under the Federal Employers’ Liability Act¹ to discipline any person for voluntarily furnishing information to a “person in interest” about the facts incident to an injury to an employee. Moreover, an employee who furnishes information about an injury to an FELA plaintiff or his lawyer may obtain injunctive relief without exhausting administrative remedies if his employer discharges him for furnishing such information.² The issue is whether an employee may obtain injunctive relief without exhausting administrative remedies when a railroad discharges him for filing an alleged false accident report with the railroad itself. We conclude that such an employee is entitled to a judicial determination whether he knowingly filed a false report and is not protected by the Act or whether he supplied information believed by him to be true and is protected. If the report is not shown to be deliberately deceitful, the employee is entitled to job-protection by injunction. We remand the case for a factual determination concerning the accuracy of the statements in the report, the employee’s belief in their truthfulness, and his intention in filing it.

After a doctor diagnosed a railroad employee’s health problem, on August 22, 1983, as a hernia requiring surgical repair, the employee filed a belated report of an on-the-job injury that supposedly occurred on August 15. Armando Gonzalez, a fellow employee, was not at work on August 15, but he filed a report of the claimed accident that suggests, if it does not assert, that he witnessed it.³ .’After a company-investigation hearing, the railroad concluded that Gonzalez’s report was false and discharged him for dishonesty. In accordance with the collective bargaining agreement between the railroad and his union, Gonzalez filed a grievance seeking reinstatement and back pay. The grievance is now at the management appeals stage, and Gonzalez has not exhausted his administrative remedies under the Railway Labor Act.⁴ Gonzalez also sought a preliminary injunction, which was denied by the district court, based primarily on its conclusion that § 60 of the FELA⁵ does not create an implied cause of action for injunctive relief in these circumstances.

The statute, the full text of which is set forth in the footnote,⁶ provides in relevant part:

“Any ... rule ... or device whatsoever, the ... effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void____”

In Hendley v. Central of Georgia Railroad Co.,⁷ we held that § 60 protects an employee from formal investigation and discharge or loss of pay after reinstatement for assisting in the investigation of an injury to a fellow employee and giving a deposition to be used in the fellow employee’s case.⁸ Specifically, we stated that, “[i]f an employee can show that the object of a railroad’s investigation is to discipline the employee for furnishing information in an FELA case, ... injunctive relief by a federal district court is ‘appropriate if not compelled,’ ” and that “a district court’s ability to enjoin a hearing or conduct which violates § 60 is essential to effectuate the purpose of the section.” ⁹

As we interpreted § 60 in Hendley, its purpose is to prohibit the “overwhelming coercive effect” that disciplinary actions by railroads have on an employee’s willingness to testify in an FELA case, notwithstanding the availability of grievance procedures that might later remedy the specific disciplinary action taken against the employee:

Employees who consider testifying in an FELA ease will understandably hesitate if they know that they may be forced, as Hendley was, to undergo a formal investigation and possibly suspension for a lengthy period of time. The fact that the employee may ultimately prevail is of little assurance to one who faces possible unemployment for a year or more. Thus, the disciplinary procedure not only violates the mandate that an employer refrain from disciplining an employee for furnishing information, it also becomes a device the “effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest.” ¹⁰

Had Gonzalez given a deposition to the injured employee’s lawyer, therefore, there would be no question that he could invoke the protection of § 60. Nevertheless, the railroad contends that the prohibition against disciplining an employee for furnishing information to a “person in interest” was meant to cover and in fact covers only cases in which employees furnish information to injured fellow employees or their representatives and not a case like Gonzalez’s, in which the employee furnishes information to the railroad itself.

The statutory prohibition, however, is not limited to protection for those who furnish information to “employees,” or “employee’s representatives.” It extends to statements made to “a person in interest” (the words being thrice repeated). The railroad itself is certainly a person in interest, but it urges us to substitute our reading of Congress’ purpose for the language of the statute. We decline the invitation to substitute our divination of congressional intent for the words Congress chose to use.

If a statute is not clear, resort to legislative history is the long-sanctioned method of seeking the statute’s meaning.¹¹ While this process is referred to as “seeking the intent of Congress,” it does not attempt to probe retroactively the collective mind of a majority of the Senate, the House, and of the President, who signed the bill thus making it law, but is an aid to clarification of the words used. Nevertheless, “[a] fundamental canon of statutory construction is that, unless otherwise defined, words will be interpreted as taking their ordinary, contemporary common meaning.”¹² Moreover, “[ajbsent a clearly expressed legislative intent to the contrary, that [statutory] language must ordinarily be regarded as conclusive.”¹³ While we recognize that, “[w]hen aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no ‘rule of law’ which forbids its use,”¹⁴ “[t]here is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.”¹⁵ As the Supreme Court has recently stated, “[w]hen confronted with a statute which is plain and unambiguous on its face, we ordinarily do not look to the legislative history as a guide to its meaning____ Here it is not necessary to look beyond the words of the statute.”¹⁶ We, therefore, decline to substitute the word “employee” when Congress repeatedly used “person in interest.”

When a railroad employee is injured without the intervention of a third person, there are only two persons in interest: the employee and the railroad. If the employee dies, the representatives of his estate become persons in interest.¹⁷ But the railroad remains the other person in interest. We cannot, therefore, read the statutory phrase as if it said less than it does. Surely Congress knew how to use, and in the statute artfully did use, the word “employee” when it meant employee. The statutory language, therefore, clearly covers an employee’s submission of an accident report to the railroad.

Moreover, the purpose of § 60, as set out in Hendley, is to eliminate “the danger that railroad agents would coerce or intimidate employees to prevent them from testifying,” or to prevent their “furnishing information to an FELA plaintiff.” ¹⁸ Thus, protection of testimonial activities of FELA witnesses, such as the filing of accident reports, not only is covered by the statutory language itself but also “effectuate[s] the purpose of the section.” ¹⁹

Our dissenting brother finds the statute ambiguous and resorts to legislative reports for its true meaning. He concludes that “it is undeniable that the legislative history of § 60 is clear and unambiguous in its rejection of the majority's interpretation.” While he accurately recounts part of the legislative history, these excerpts tell us clearly only that the statute, as originally drafted, did not contain the phrase, “person in interest,” and was redrafted by members of Congress to exclude protection for disclosure to “ambulance chasers and shysters.” The legislative history does not tell us anything about whether Congress intended to protect those who disclose information to employers, and the original language, in fact, seems to have been broad enough to protect those who give information to employers.

The language used in the Congressional reports is no more precise than the language in the statute. Some of it might be cited in support of our interpretation of “person in interest.”²⁰ Our brother agrees with us that the extent of protection under § 60 turns on the interpretation of the phrase “person in interest.” We also seem to agree that Congress simply did not address the problem that we face although the dissent considers that, “[ejmployer entitlement to accurate information was ... assumed.” Our disagreement turns on the appropriate methodology for resolving the meaning of the words used in the statute.²¹

Like all other historical accounts, legislative chronicles do not tell a single tale, and, therefore, resort to the language of the statute is not only the first but the safest course.²² We have held to this course before: “The most obvious place to find congressional intent is in the statute.”²³

The purpose of the statute is to protect employees who supply information to help FELA claimants. That purpose is served by the result we reach,²⁴ and those employees who knowingly supply false information are not protected. It also is more readily administered. The very employees who supply FELA plaintiffs with information may also be required to file accident reports with their employers. If only furnishing information to employees is protected, an employer might discharge an employee for doing so under the pretext that the discharge is for filing the accident report with the employer. The interpretation reached by our brother, therefore, would create the possibility that employers might subvert the purposes of § 60 in such cases or at least create another judicial issue: whether a discharge was in truth for one reason or the other.

The railroad’s reliance on two circuit court opinions that have refused to expand the protection of § 60 is misplaced. Neither is applicable here because neither involved the furnishing of information to a person in interest. In Jackson v. Consolidated Rail Corp.,²⁵ the Seventh Circuit held that a FELA plaintiff who was allegedly discharged in retaliation for bringing an FELA suit against his employer was not protected by § 60. The court recognized that there was some “superficial appeal” in the plaintiff’s reliance on the policy behind § 60, but found that it could not expand the scope of the section without some specific statutory language to support such an expansion. The court found, therefore, that the mandatory grievance procedures under the Railway Labor Act preempted the court’s jurisdiction. In Lan-fried v. Terminal Railroad Association,²⁶ the Eighth Circuit likewise refused to extend § 60 to protect an employee against discharge in alleged retaliation for bringing an FELA suit against his employer. These are, therefore, not furnishing-information cases.

The railroad also contends, however, that it has not enforced a rule against or discharged an employee for furnishing information, but has instead acted to enforce a rule that prohibits the filing of required reports that are false. We agree that the Act was not designed to protect FELA witnesses if they deliberately give information known by them to be false and that nothing in its language compels a contrary conclusion. As we stated in Hendley, our interpretation of § 60 does not mean that “an employee may never be disciplined for his conduct in connection with an FELA case.”²⁷ If Gonzalez lied in the accident report, § 60 presents no barrier to his discharge. If he filed a report that was true or, while untrue, he believed to be true, he is entitled to § 60 protection.

The district court did not determine whether Gonzalez’s statements in the accident report were true or false, but held that this question was “beside the point” since it found that § 60 was not applicable “in any way.” It also held that, even if § 60 was applicable, Gonzalez was not entitled to injunctive relief because he had not shown that there was a substantial threat of irreparable harm.

Ordinarily a plaintiff must show a substantial threat of irreparable harm in order to obtain injunctive relief.²⁸ The rationale of Hendley, however, is that a district court should grant injunctive relief if an employee shows that he has been discharged for furnishing information to an interested person. The harm to be prevented by this remedy is not the employee s loss of employment or pay, which may or may not be recovered by him through the grievance process, but coercion of FELA witnesses which if allowed to flourish would undercut the Act. The district court , ,, „ , i erred, therefore, when it required Gonzalez , , 1' , . . , , to show any further injury beyond dis- , j. j. . ,. . » ,. , charge for furnishing information to an interested party.

The key issue remains: was Gonzalez s conduct of the kind shielded by § 60? We, therefore, remand to the district court for a , , . ’ . „ , , determination of whether Gonzalez filed an ... ,, , ,. .... accident report known by him to be false ... ,, . . ,. , i - ,, ., , with the intention to deceive the railroad. We phrase the issue in this way to make clear that to “effectuate the purpose of the section,” an FELA witness who files an accident report that, to the best of his knowledge, is true should not be denied the protection of § 60 if it proves to be inaccurate or incorrect.

This resolution is not inconsistent with the exclusive jurisdiction of the grievance procedures under the Railway Labor Act.²⁹ “The question of whether a particular disciplinary [action] violates § 60 involves interpretation of a federal statute, and is, therefore, a matter of federal jurisdiction.... This is a matter properly within the jurisdiction of the federal courts and is not a question to be determined by the administrative board.”³⁰ Should the district court on remand determine that Gonzalez is protected by § 60, he would be entitled to reinstatement and “full back pay for the time that he was suspended or unemployed as a result of the railroad’s actions.”³¹ “Since [Gonzalez’s] actions could not lawfully be the subject of disciplinary action and arbitration, any award made by the National Railroad Adjustment Board [other than full reinstatement and Back pay would be] null and void.”³² Should the district court determine on re-mand> however, that Gonzalez knowingly ffled a fa]ge acddent t> it ghould d j -unctive relief. Gonzalez then , . . ,, , , . . , .. sue his grievance through administrative , , , ,, , , , ., , ., ,. channels and attempt to show that the dis-... . ciplmary action taken by the railroad vio/ ,/ „ J. . lates the collectlve bargaining agreement, either because it is too harsh or for some other reagon. We make no dedgion on thig igg and leaye itg determination to the , , , . Board, which has exclusive jurisdiction ,. , ... ..... over disputes concerning the application of „ , . . , collective bargaining agreements, b

For these reasons, the case is RE-VERSED and REMANDED for proceed-ings consistent with this opinion,

1 . 45 U.S.C. § 60.

2 . Hendley v. Central of Georgia R.R. Co., 609 F.2d 1146, 1152 (5th Cir.), reh’g denied, 614 F.2d 294 (5th Cir.1980), cert. denied, 449 U.S. 1093, 101 S.Ct. 890, 66 L.Ed.2d 822 (1981).

3 . For example, in response to the form inquiry on the accident report, "Where were you when accident occurred,” Gonzalez replied, “Right next to his unit 2673 on unit." Gonzalez’s other answers on the form, however, lend support to his claim that he did not falsify his statement, but merely misunderstood the responses called for by the form. For example, in response to the inquiry, "State how the accident occurred," Gonzalez replied that the injured employee “was working by himself’ and that on a later date the employee “was working ... by himself again, [and] that’s when he ask [sic ] me ... to see if I could feel something in his right side, under the right hand shirt pocket, and I could feel a small bump." The injured employee’s accident report contains the same ambiguity, listing Gonzalez as a witness but stating that, when the accident occurred, the employee was “working alone on unit."

4 . See 45 U.S.C. § 153 First (i); Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 324-25, 92 S.Ct. 1562, 1565-66, 32 L.Ed.2d 95, 99-100 (1972).

⁵

6 . 45 U.S.C. § 60 reads:

Any contract, rule, regulation, or device whatsoever, the purpose, intent, or effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and whoever, by threat, intimidation, order, rule, contract, regulation, or device whatsoever, shall attempt to prevent any person from furnishing voluntarily such information to a person in interest, or whoever discharges or otherwise disciplines or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction thereof, be punished by a fine of not more than $1,000 or imprisoned for not more than one year, or by both such fine and imprisonment, for each offense; Provided, That nothing herein contained shall be construed to void any contract, rule, or regulation with respect to any information contained in the files of the carrier, or other privileged or confidential reports.

7 . 609 F.2d 1146, 1152 (5th Cir.), reh'g denied, 614 F.2d 294 (5th Cir.1980), cert. denied, 449 U.S. 1093, 101 S.Ct. 890, 66 L.Ed.2d 822 (1981).

8 . Id. at 1153; see also Stark v. Burlington Northern, Inc., 538 F.Supp. 1061, 1063 (D.Colo.1982) (enjoining railroad from discharging employee who made inquiries to the police and fellow workers to provide lawyer of deceased fellow employee with information).

9 . Id. at 1152 (quoting Brotherhood of R.R. Trainmen v. Central of Ga. Ry. Co., 305 F.2d 605, 609 (5th Cir.1962)).

10 . Id. at 1152-53 (quoting 45 U.S.C. § 60).

11 . See, e.g., Allen v. State Bd. of Elections, 393 U.S. 544, 570, 89 S.Ct. 817, 834, 22 L.Ed.2d 1, 19 (1969); NLRB v. Allis-Chalmers Mfg. Co., 388 U.S. 175, 184, 87 S.Ct. 2001, 2008, 18 L.Ed.2d 1123, 1129 (1967); United States v. Noe, 634 F.2d 860, 861 (5th Cir.), cert. denied, 454 U.S. 876, 102 S.Ct. 355, 70 L.Ed.2d 186 (1981); see also United States v. American Trucking Ass'ns, 310 U.S. 534, 543-44, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345, 1351-52 (1940).

12 . Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d 199, 204 (1979); see also United States v. Apfelbaum, 445 U.S. 115, 121, 100 S.Ct. 948, 952, 63 L.Ed.2d 250 (1980); Quarles v. St. Clair, 711 F.2d 691, 699 n. 21 (5th Cir.1983).

13 . Consumer Prods. Safety Comm’n v. GTE Syl-vania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d 766, 772 (1980). See also Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 570, 102 S.Ct. 3245, 3250, 73 L.Ed.2d 973, 980 (1982).

14 . United States v. American Trucking Ass'ns, 310 U.S. 534, 543-44, 60 S.Ct. 1059, 1064, 84 L.Ed. 1345, 1351 (1940).

15 . Id. at 543, 60 S.Ct. at 1063, 84 L.Ed. at 1351.

16 . TVA v. Hill, 437 U.S. 153, 184 n. 29, 98 S.Ct. 2279, 2296 n. 29, 57 L.Ed.2d 117, 140 n. 29 (1978) (citation and emphasis omitted); see also United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 1281, 6 L.Ed.2d 575, 579 (1961); Ex parte Collett, 337 U.S. 55, 61, 69 S.Ct. 944, 947, 93 L.Ed. 1207, 1211 (1949)

17 . 45 U.S.C. § 51; see also 45 U.S.C. § 59.

18 . 609 F.2d 1146, 1150-51 (5th Cir.1980).

19 . Id. at 1152.

20 . See, for example, text accompanying notes 5 and 7 of the dissent.

21 . See generally R. Dworkin, Taking Rights Seriously 105-10 (1977).

22 . See, e.g., Johnson v. American Airlines, Inc., 745 F.2d 988, 993 (5th Cir.1984).

23 . Id.

24 . See, e.g., Martin v. Kilgore First Bancorp, Inc., 747 F.2d 1024, 1027 (5th Cir.1984) (“Regardless of the age of the ambiguity, our duty is to interpret the words of the statute to further the purpose Congress sought to accomplish by its enactment.”).

25 . 717 F.2d 1045 (7th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1000, 79 L.Ed.2d 233 (1984).

26 . 721 F.2d 254 (8th Cir.1983), cert. denied, — U.S.-, 104 S.Ct. 1712, 80 L.Ed.2d 185 (1984).

27 . 609 F.2d at 1153.

28 . See Commonwealth Life Ins. Co. v. Neal, 669 F.2d 300, 303 (5th Cir.1982); Southern Monorail Co. v. Robbins & Myers, Inc., 666 F.2d 185, 186 (5th Cir.1982).

29 . See 45 U.S.C. § 153 First (i); Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 324-25, 92 S.Ct. 1562, 1565-66, 32 L.Ed.2d 95, 99 (1972).

30 . Hendley, 609 F.2d at 1151.

31 . Id. at 1153

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