Atchison, Topeka and v. United Trans Union ( 1999 )

Revised May 12, 1999
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 98-10552
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ATCHISON, TOPEKA AND SANTA FE RAILWAY CO.,
Plaintiff/Counterdefendant/Appellant,
versus
UNITED TRANSPORTATION UNION (CT&Y),
Defendant/Counterclaimant/Appellee.
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Appeal from the United States District Court
for the Northern District of Texas
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May 10, 1999
Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit
Judges.
BENAVIDES, Circuit Judge:
Atchison, Topeka and Santa Fe Railway Co. (“Santa Fe”)
appeals the district court’s determination that it lacked any
ground to overturn a public law board’s award under the Railway
Labor Act (“RLA”). We find that the district court properly
granted summary judgment to appellee United Transportation Union
(CT&Y) (“UTU”) and affirm.
Under Federal Railroad Administration (“FRA”) guidelines,
railroad yardman is a safety-sensitive position. FRA regulations
mandate that railroads conduct random drug testing of employees
in safety-sensitive positions. See 49 C.F.R. § 219.601. In a
random drug test in November 1993, James E. Richardson, a yardman
with Santa Fe, tested positive for cocaine. Richardson had tested
positive for cocaine in 1989 and positive for cocaine and
marijuana in 1988. Santa Fe suspended Richardson pending an
investigation. In accordance with the collective bargaining
agreement in effect between it and the UTU, Santa Fe scheduled a
formal hearing, which took place in January 1994. At that
hearing, Richardson denied using cocaine and produced a list of
prescription and over-the-counter medications he was taking.
Three weeks later, Santa Fe fired Richardson pursuant to section
9.0 of its Policy on the Use of Alcohol and Drugs, which provides
for firing employees who test positive for controlled substances
twice within ten years.1
Both federal regulations, see 49 C.F.R. § 40.33; 49 C.F.R.
§ 219.707, and Santa Fe’s internal policies2 direct the
1. The record does not make apparent any specific reason
why Santa Fe did not attempt to fire Richardson after his second
positive test. Santa Fe does not appear to have held a hearing
following the second positive test, as the collective bargaining
agreement requires before Santa Fe fires an employee.
2. The form that Richardson had signed at the time of
testing regarding his urine sample stated:
Should the results of the lab test for the specimen
identified by this form be confirmed positive, the
Medical Review Officer will contact you to ask about
prescription and over-the-counter medications you may
have taken. Therefore, you may want to make a list of
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railroad’s medical review officer (“MRO”) to evaluate information
that casts doubt on a positive drug test. Santa Fe’s MRO
telephoned Richardson in November 1993 to tell him that he tested
positive for cocaine. The MRO does not appear to have inquired at
any time about other drugs Richardson might be taking, and
Richardson did not at any time before the January 1994 hearing
advise Santa Fe that he was using prescription or over-the-
counter drugs. The MRO did not attend Richardson’s hearing.
The UTU appealed Richardson’s dismissal within Santa Fe. The
company issued its final denial in April 1995. The UTU forwarded
the matter to Public Law Board 4901 (“PLB” or “Board”) for
resolution.3 The PLB conducted a hearing and issued a decision in
August 1996 reinstating Richardson with back pay and benefits.
The Board found that the MRO had not investigated the effect that
Richardson’s medications might have had on a drug test result and
thus that the November 1993 positive test result was not a valid
ground for firing Richardson.
those medications as a reminder. This list is not
necessary. If you choose to make a list, do so either
on a separate piece of paper or on the back of your
copy . . . of this form. Do not list on the back of any
other copy of this form. Take your copy with you.
Richardson testified at his disciplinary hearing that he was not
otherwise asked about his use of medications until the hearing.
3. Pursuant to § 3 of the RLA, 45 U.S.C. § 153, arbitration
of minor labor disputes before the National Railroad Adjustment
Board is mandatory. Proceedings before a public law board, or
adjustment board, created by agreement between employer and
union, may substitute for NRAB arbitration.
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Santa Fe sought review of the PLB award before the district
court. “Under the Railway Labor Act . . . the range of judicial
review in enforcement cases is among the narrowest known to the
law.” Diamond v. Terminal Railway Alabama State Docks, 421 F.2d
228, 233 (5th Cir. 1970). National policy favors the final
settlement of labor disputes by arbitration. See, e.g., Air Line
Pilots Association, International v. Eastern Air Lines, Inc., 632
F.2d 1321, 1323 (5th Cir. 1980). “The federal policy of settling
labor disputes by arbitration would be undermined if courts had
the final say on the merits of the awards.” United Steelworkers
of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 596,
80 S. Ct. 1358, 1360 (1960). In keeping with federal policy
favoring the enforcement of arbitration awards, the RLA provides
that a reviewing court may set aside an adjustment board’s award
only in one of three circumstances: (1) if the board failed to
comply with the RLA; (2) if the board failed to confine itself to
matters within its jurisdiction; or (3) if fraud or corruption
tainted the process. See 45 U.S.C. § 153 First (q); Union Pacific
Railroad Co. v. Sheehan, 439 U.S. 89, 93, 99 S. Ct. 399, 402
(1978) (per curiam). This Court has recognized a fourth basis for
setting aside an award, in cases where the award failed to meet
the requirements of due process. See, e.g., Brotherhood of
Locomotive Engineers v. St. Louis Southwestern Railway Co., 757
F.2d 656, 660-61 (5th Cir. 1985). Santa Fe urged the district
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court to adopt a fifth ground for denying enforcement of an
arbitration award under the RLA, namely, in cases where the award
contravenes public policy. The district court rejected Santa Fe’s
argument for a fifth ground and, finding that none of the four
recognized grounds for setting aside the award applied, granted
the UTU’s motion for summary judgment.
Santa Fe makes two arguments to this Court as to why the
arbitration award should be set aside. First, Santa Fe argues
that the PLB exceeded its jurisdiction when it reinstated
Richardson. According to Santa Fe, the record before the Board
contained no evidence that Richardson was taking the medications
at the time of the drug test (instead of merely at the time of
the hearing) and no evidence that the medications could have
caused a false positive test result. Furthermore, according to
Santa Fe, the Board improperly relied on Richardson’s statement
that he was taking medications, because the statement was not
made until two months after the drug test at the hearing. This
argument is without merit. The Board’s finding was that Santa Fe
failed to have its MRO investigate Richardson’s medications.
Because of that failure, the Board held, the positive test result
could not be considered valid. The Board’s factually based
findings in this regard are conclusive. See Eastern Air Lines,
632 F.2d at 1323. Without a valid positive test result, Santa Fe
had no grounds under the collective bargaining agreement for
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dismissing Richardson, and the PLB was within its jurisdiction in
reinstating him.
Second, Santa Fe urges this Court to follow several other
circuits and hold that a court may overturn an RLA arbitration
award if the award contravenes public policy. See, e.g., Union
Pacific Railroad Co. v. United Transport Union (“Madison”), 3
F.3d 255, 261 (8th Cir. 1993) (specifically holding that
precedent concerning public policy review under the National
Labor Relations Act applies as well to the RLA); Delta Air Lines,
Inc. v. Air Line Pilots Association, International, 861 F.2d 665,
669-71 (11th Cir. 1988) (assuming without discussion that public
policy review is available under the RLA as well as under the
NLRA); Northwest Airlines, Inc. v. Air Line Pilots Association,
International, 808 F.2d 76, 83-84 (D.C. Cir. 1987) (same). We
need not reach this issue. Even if Santa Fe is correct that there
is a well-defined public policy against reinstating a drug user
to a safety-sensitive position in the railroad industry, the
PLB’s decision in this case would not violate that policy.
Because the Board found the test invalid, it did not assume that
Richardson in fact used cocaine. This is not a case in which a
PLB, after finding or not questioning that an employee used drugs
or alcohol in violation of company policy, nonetheless ordered
the employee reinstated to a safety-sensitive position, as might
require us to consider public policy review. Cf. Madison, 3 F.3d
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at 262-63 (refusing on public policy grounds to enforce an award
reinstating a safety-sensitive employee whose due process rights
were violated at his hearing but who nonetheless was found to
have violated his company’s alcohol regulation)4; Delta Air
Lines, 861 F.2d at 668, 674 (refusing on public policy grounds to
enforce an award reinstating an airline pilot where the
adjustment board found that the pilot in fact had flown a plane
while drunk).
Regardless of whether we agree with the PLB’s award, we have
no basis under law upon which to overturn it. We therefore must
AFFIRM the district court’s grant of summary judgment to the UTU.
4. In Madison, the company hearing officer made improper
remarks on the hearing record--stating that the employee
“reek[ed] of alcohol”--before the company determined that the
employee had violated an industry-wide rule prohibiting the use
of drugs or alcohol on the job. A public law board reinstated the
employee without considering whether he had in fact violated the
regulation. See Madison, 3 F.3d at 257. The Eighth Circuit found
the board’s award contrary to public policy because the board had
failed to determine the employee’s likelihood of future alcohol
violations. See id. at 262. Madison may be distinguished from the
instant case insofar as nothing in Madison suggested that the
testing procedures used by the company might be invalid, only
that the hearing officer made prejudicial remarks. Although the
Madison court stated that it did not decide the case on the
assumption that the drug test results were positive, see id. at
257 n.3, it acknowledged, “If the Board had reinstated [the
employee] after finding that the allegedly positive test results
were invalid due to faulty testing procedures or some other
reason, we would be obliged to enforce the award.” Id. at 262.
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