National Railroad Passenger Corp. v. Fraternal Order of Police, Lodge 189 Labor Committee ( 2017 )


Menu:
  •  United States Court of Appeals
    FOR THE DISTRICT OF COLUMBIA CIRCUIT
    Argued November 8, 2016                Decided April 28, 2017
    No. 16-7004
    NATIONAL RAILROAD PASSENGER CORPORATION,
    APPELLEE
    v.
    FRATERNAL ORDER OF POLICE, LODGE 189 LABOR
    COMMITTEE,
    APPELLANT
    Appeal from the United States District Court
    for the District of Columbia
    (No. 1:14-cv-00678)
    Thomas A. Cushane argued the cause and filed the briefs for
    appellant. David P. Hiester entered an appearance.
    Thomas E. Reinert Jr. argued the cause for appellee. With
    him on the brief was Matthew J. Sharbaugh.
    Before: KAVANAUGH and PILLARD, Circuit Judges, and
    RANDOLPH, Senior Circuit Judge.
    Opinion for the Court filed by Senior Circuit Judge
    RANDOLPH.
    Dissenting Opinion filed by Circuit Judge PILLARD.
    2
    RANDOLPH, Senior Circuit Judge: This is an appeal from
    the judgment of the district court vacating an arbitrator’s award.
    The arbitrator ruled that the National Railroad Passenger
    Corporation – “Amtrak” – must reinstate, with backpay and lost
    seniority, an employee Amtrak fired for misconduct. A union
    – the Fraternal Order of Police, Lodge 189 – brought the
    arbitration on the employee’s behalf. The issue is whether
    “procedural limitations on the conduct of internal investigations
    contained in a collective bargaining agreement between Amtrak
    and the FOP” bind the Amtrak Office of Inspector General.
    Nat’l R.R. Passenger Corp. v. Fraternal Order of Police, Lodge
    189, 
    142 F. Supp. 3d 82
    , 83 (D.D.C. 2015).
    Amtrak has its own police force.1 A provision in the
    Amtrak-FOP June 2010 collective bargaining agreement is
    entitled “Police Officers Bill of Rights.” The preamble to this
    provision – Rule 50 of the agreement – states that the “Police
    Department has established the following procedures to govern
    the conduct and control of interrogations.” Among the
    procedures are these: the investigator must inform the employee
    of his right to delay questioning in order to have a union
    representative present; if the employee is suspected of criminal
    activity, the investigator must give Miranda2 warnings; and the
    investigator must record the interview “mechanically or by a
    1
    Amtrak is a District of Columbia corporation created by
    Congress. See Lebron v. Nat’l R.R. Passenger Corp., 
    513 U.S. 374
    ,
    383-86 (1995).
    2
    That is, the interviewer must inform the individual “that he has
    a right to remain silent, that any statement he does make may be used
    as evidence against him, and that he has a right to the presence of an
    attorney, either retained or appointed.” Miranda v. Arizona, 
    384 U.S. 436
    , 444 (1966).
    3
    stenographer.” The fired employee, Sarah Bryant, was an
    officer in the Canine Unit of the Amtrak Police Department. In
    2011, Amtrak’s Office of Inspector General received an
    anonymous tip that Officer Bryant jointly owned a home in
    Maryland with her supervisor, Inspector William Parker, and
    that Parker had been giving Bryant a disproportionate number of
    assignments commanding a higher rate of pay. The Amtrak
    Police Department’s Internal Affairs Unit received the same tip
    and opened an investigation. Amtrak police interviewed Bryant
    twice. Both times the police complied with Rule 50. In those
    two interviews, Bryant maintained that she was only Parker’s
    tenant. The Police Department closed its investigation in June
    2012 without recommending any sanctions.
    In September of the same year, an Inspector General
    investigator interviewed Bryant. The investigator did not record
    the interview or inform Bryant of her right to have a union
    representative present. The investigator gave Bryant some
    warnings,3 but did not inform her that she had a right to counsel
    or that counsel would be appointed if she could not afford an
    attorney.
    The Inspector General’s report concluded that Bryant had
    lied about being Parker’s tenant during her earlier interview with
    Amtrak’s Police Department. The deed on the house where she
    resided listed her as a co-owner and the loan documents listed
    her as a co-borrower on the property’s second mortgage. The
    Inspector General also found that Bryant had falsified an
    affidavit claiming a tax exemption for first-time home buyers.
    3
    Bryant signed a statement certifying she understood that she had
    the right to remain silent; that anything she said could be used against
    her in a criminal or disciplinary proceeding; and that Amtrak could not
    terminate her for remaining silent, but could use her silence in a
    disciplinary proceeding.
    4
    After receiving the Inspector General’s report, the Amtrak
    Police Department suspended Bryant, pending a disciplinary
    conference. At the conference, Bryant refused to resign. The
    Police Department terminated her on December 3, 2012.
    After Bryant unsuccessfully appealed the decision within
    Amtrak, she sought arbitration pursuant to the collective
    bargaining agreement’s grievance procedure. On her behalf, the
    FOP claimed that she had been fired without just cause.
    Without reaching that claim, the arbitrator determined that
    Bryant should be reinstated because the Inspector General’s
    investigator, when interviewing her, had not fully complied with
    the contract’s Rule 50 procedures. Although this provision of
    the collective bargaining agreement does not mention the
    Amtrak Office of the Inspector General, and although the
    Amtrak Inspector General did not participate in the Amtrak-FOP
    contract negotiations and did not sign the agreement, the
    arbitrator concluded that Rule 50 bound the Inspector General.
    Rule 50, the arbitrator wrote, applies to “all bargaining unit
    member interrogations” and “does not exempt” the Inspector
    General.4
    Pursuant to the Railway Labor Act, Amtrak brought an
    action in district court, seeking an order setting aside the
    arbitrator’s award. See Railway Labor Act, 45 U.S.C. § 153
    First (q). The district court, relying on the Inspector General
    Act of 1978, 5 U.S.C. app. 3, §§ 1-13, and U.S. Department of
    4
    The dissent seems to think that the arbitrator did not order
    Bryant reinstated because the Inspector General violated Rule 50.
    Dissent at 5. That is not correct. The arbitrator decided that the
    Inspector General “must comply with” Rule 50. The arbitrator’s
    decision reinstated Bryant because of the Inspector General’s actions,
    not Amtrak’s use of the report.
    5
    Homeland Security v. FLRA (DHS), 
    751 F.3d 665
    , 672 (D.C.
    Cir. 2014), vacated the arbitrator’s award because the Amtrak
    Inspector General could not legally be governed by Rule 50 of
    the contract. Nat’l R.R. Passenger 
    Corp., 142 F. Supp. 3d at 90
    .
    Collective bargaining agreements commonly contain
    procedures for resolving employee grievances, with arbitration
    as the final step.5 The purpose is to settle labor-management
    disputes without resort to lockouts or work slowdowns or
    strikes. See 45 U.S.C. § 152. Although the Railway Labor Act
    gives district courts jurisdiction to review an arbitrator’s award,
    
    id. § 153
    First (q), the grounds on which a court may set aside
    an award are limited. One of the few such grounds is that the
    particular contractual provision at issue is contrary to “law or
    public policy.” United Paperworkers Int’l Union v. Misco, Inc.,
    
    484 U.S. 29
    , 42 (1987). See also Hurd v. Hodge, 
    334 U.S. 24
    ,
    34-35 (1948); Nw. Airlines, Inc. v. Air Line Pilots Ass’n, Int’l,
    
    808 F.2d 76
    , 84 (D.C. Cir. 1987); Union Pacific R.R. Co. v.
    United Transp. Union, 
    3 F.3d 255
    , 260-63 (8th Cir. 1993).6
    5
    Under the Railway Labor Act, arbitration is “before the National
    Railroad Adjustment Board, § 3, or before an adjustment board
    established by the employer and the unions representing the
    employees. § 3 Second.” Consol. Rail Corp. v. Ry. Labor Executives’
    Ass’n, 
    491 U.S. 299
    , 303-04 (1989). Amtrak and the FOP established
    an adjustment board in their collective bargaining agreement.
    6
    Other courts of appeals have vacated arbitration awards that are
    contrary to law.       See, e.g., Newsday, Inc. v. Long Island
    Typographical Union, 
    915 F.2d 840
    , 844-45 (2d Cir. 1990); Exxon
    Shipping Co. v. Exxon Seamen’s Union, 
    11 F.3d 1189
    , 1190-94 (3d
    Cir. 1993); Exxon Shipping Co. v. Exxon Seamen’s Union, 
    993 F.2d 357
    , 360-64 (3d Cir. 1993); Stroehmann Bakeries, Inc. v. Local 776,
    
    969 F.2d 1436
    , 1441-43 (3d Cir. 1992); Gulf Coast Indus. Workers
    Union v. Exxon Co., 
    991 F.2d 244
    , 250 (5th Cir. 1993); Amalgamated
    Meat Cutters & Butcher Workmen v. Great W. Food Co., 
    712 F.2d 6
    As to the legality of applying Rule 50 to the Amtrak
    Inspector General, circuit precedent is directly on point. The
    court’s decision in DHS, on which the district court relied, held
    that under the Inspector General Act of 1978,7 “public sector
    unions and agencies can neither add to nor subtract from the
    OIG’s investigatory authority through collective 
    bargaining.” 751 F.3d at 671
    . The DHS court agreed with the Fourth
    Circuit’s decision that “proposals concerning Inspector General-
    investigation procedures are not ‘appropriately the subject of
    bargaining,’ because to allow such bargaining ‘would impinge
    on the statutory independence of the’” Inspector General. 
    Id. at 668
    (quoting U.S. Nuclear Regulatory Comm’n v. FLRA, 
    25 F.3d 229
    , 234 (4th Cir. 1994)).8
    122, 124-25 (5th Cir. 1983); Prof’l Adm’rs Ltd. v. Kopper-Glo Fuel,
    Inc., 
    819 F.2d 639
    , 643-44 (6th Cir. 1987); Titan Tire Corp. of
    Freeport v. United Steel, 
    734 F.3d 708
    , 729 (7th Cir. 2013); Union
    Pac. R.R. Co. v. United Transp. Union, 
    3 F.3d 255
    , 260-63 (8th Cir.
    1993); Iowa Elec. Light & Power Co. v. Local Union 204 of Int’l Bhd.
    of Elec. Workers, 
    834 F.2d 1424
    , 1427 (8th Cir. 1987); Phoenix
    Newspapers, Inc. v. Phoenix Mailers Union Local 752, 
    989 F.2d 1077
    ,
    1084 (9th Cir. 1993); Am. Postal Workers Union AFL-CIO v. U.S.
    Postal Serv., 
    682 F.2d 1280
    , 1286 (9th Cir. 1982); Delta Air Lines,
    Inc. v. Air Line Pilots Ass’n, 
    861 F.2d 665
    , 674 (11th Cir. 1988).
    7
    Congress amended the Act in 1988 to establish Inspectors
    General in Amtrak and other “designated federal entities.” Pub. L.
    No. 100-504, § 104, 102 Stat. 2515, 2522. The amendment gives
    these Inspectors General much of the same investigatory powers and
    independence as the original Inspectors General. 5 U.S.C. app. 3
    § 8G.
    8
    
    DHS, 751 F.3d at 670-71
    , distinguished NASA v. FLRA, 
    527 U.S. 229
    (1999), for reasons unnecessary to repeat.
    7
    In its reply brief the FOP suggests that this case is different
    because it is “not a negotiability appeal wherein one party is
    attempting to foist a new term and condition of employment
    upon the other.” Appellant Reply Br. at 4.9 The FOP is correct
    that this is not a “negotiability appeal” – that is, the dispute here
    is not about whether Amtrak must bargain with the FOP about
    a provision governing the investigative procedures of the
    Amtrak Inspector General. The provision is already part of the
    collective bargaining agreement. But the FOP’s observation
    fails to take into account the reason why DHS held that requiring
    bargaining about such a proposal is contrary to law. It is
    contrary to law because contractual provisions cannot “add to
    nor subtract from” an Inspector General’s investigative authority
    under the Inspector General Act. 
    DHS, 751 F.3d at 671
    . From
    this it follows that collective bargaining agreements “may not
    impose restrictions on the manner in which . . . Inspectors
    General conduct investigations.”           Statement of Interest
    Submitted by the United States of America at 8, Nat’l R.R.
    Passenger Corp. v. Fraternal Order of Police, Lodge 189, 
    142 F. Supp. 3d 82
    (D.D.C. 2015) (No. 14-cv-00678-GK), ECF No.
    9
    Although we consider the FOP’s passing mention of this
    difference in its reply brief, the “argument” doubtless came too late.
    The DHS decision was at the center of the district court’s analysis. Yet
    the FOP’s opening brief contained only one citation to DHS, and that
    was in its summary of argument, which pointed out the obvious
    chronological fact that the DHS opinion issued after the arbitrator
    issued her award. Appellant Br. at 11. The argument section of the
    FOP’s opening brief never elaborated; it entirely ignored DHS. Our
    longstanding rule is that, for obvious reasons and with obvious
    exceptions (none of which apply here), arguments made for the first
    time in a reply brief will not be considered. See, e.g., Rollins Envtl.
    Services (NJ), Inc. v. EPA, 
    937 F.2d 649
    , 654 n.2 (D.C. Cir. 1991),
    and cases following this rule.
    8
    26.10 The FOP also fails to appreciate that an arbitration is itself
    “part and parcel of the ongoing process of collective
    bargaining.” United 
    Paperworkers, 484 U.S. at 38
    .
    It makes no difference that DHS was decided after the
    arbitration award. See 
    n.9 supra
    . That collective bargaining
    agreements may not regulate an Inspector General’s
    investigatory authority has been the law for decades, as the
    Fourth Circuit’s 1994 decision in Nuclear Regulatory
    Commission v. FLRA 
    shows. 25 F.3d at 234
    . A federal court,
    reviewing an arbitration award, “may refuse to enforce contracts
    that violate law or public policy.” United 
    Paperworkers, 484 U.S. at 42
    (citing 
    Hurd, 334 U.S. at 35
    ). Rule 50, as applied to
    the Amtrak Inspector General, is such a contractual provision
    and the district court was right in refusing to enforce the
    arbitrator’s award based on that provision.
    We do not reach the FOP’s argument that the Quality
    Standards for Investigations – standards promulgated by the
    Council of the Inspectors General on Integrity and Efficiency to
    govern Inspector General investigations – require the same
    procedural protections as Rule 50. Appellant Br. at 23-24. The
    arbitrator did not rely on those standards. We also do not reach
    10
    The United States cited, among other authorities, the following
    provisions of the Inspector General Act: a federal employer may not
    “prevent or prohibit the Inspector General from initiating, carrying
    out, or completing any audit or investigation,” 5 U.S.C. app. 3,
    § 8G(d)(1); and each “Inspector General, in carrying out the
    provisions of this Act, is authorized . . . to make such investigations
    and reports relating to the administration of the programs and
    operations of the applicable establishment as are, in the judgment of
    the Inspector General, necessary or desirable,” 
    id. § 6(a)(2).
    Statement
    of Interest Submitted by the United States of 
    America, supra, at 7
    .
    9
    the FOP’s claim that the Amtrak Police Department could not
    discharge Bryant without re-interviewing her and complying
    with the Rule 50 procedures. Appellant Reply Br. at 8-10. The
    arbitrator ordered Bryant reinstated because the Inspector
    General’s investigator did not comply with Rule 50; the
    arbitrator did not rule that the Amtrak Police Department
    misused the Inspector General’s report. See 
    n.4 supra
    .
    Further arbitration proceedings may be in order. The
    arbitrator rested entirely on the Amtrak Inspector General’s
    noncompliance with Rule 50. The award must therefore be set
    aside. If the FOP raised additional contentions before the
    arbitrator, those remain subject to further arbitration
    proceedings.
    Before ending this opinion, we shall respond to two of the
    dissent’s points. The first is that American Postal Workers
    Union v. U.S. Postal Service, 
    789 F.2d 1
    (D.C. Cir. 1986),
    supports the dissent’s position. Dissent at 4. But that case is not
    at all comparable to this one. It involved, as the opinion in
    American Postal Workers put it, “a very routine dispute over the
    application of an evidentiary rule,” a dispute that arose because
    the district court had substituted its interpretation of the
    collective bargaining agreement for the 
    arbitrator’s. 789 F.2d at 4
    , 6. Nothing of the sort is presented here. We have accepted –
    as the district court did – the arbitrator’s interpretation that Rule
    50 applies to the Amtrak Inspector General. The problem is that
    Rule 50, as thus applied, amounted to an illegal contractual
    provision. No such problem was presented in the American
    Postal Workers case. If it had been, the case would have come
    out differently: our court there wrote “that an arbitration award
    may not be enforced if it transgresses ‘well defined’ and
    ‘dominant’ ‘laws and legal precedents.’” 
    Id. at 8.
    Our court’s
    opinion in DHS is such a precedent.
    10
    The dissent’s other point is that in determining whether the
    arbitrator enforced an illegal contract, the court is confined to
    considering only the terms of the award, and may not take into
    account the arbitrator’s explanation supporting the award.
    Dissent at 5-8. Even if the dissent’s argument were valid, which
    is doubtful, it does not matter in this case, which may explain
    the FOP’s failure to mention it. In addition to the arbitrator’s
    22-page opinion, the one-paragraph “Award” at the end of the
    opinion shows beyond doubt that the arbitrator was enforcing an
    illegal contractual term. The “Award” stated that Amtrak had to
    reinstate Bryant because the Amtrak Inspector General did not
    comply with Rule 50 of the collective bargaining agreement
    during her interview.11
    Affirmed.
    11
    The “Award” states in full:
    The Corporation did not have just cause to discharge
    Grievant Sarah Bryant because the procedural safeguards
    guaranteed to employees by Rule 50 of the parties’
    Agreement were not afforded her during the September
    25, 2012 Amtrak OIG interrogation. Therefore, Grievant
    shall promptly be reinstated to her prior position and made
    whole, with payment of all back pay and benefits, and
    restoration of her seniority.
    PILLARD, Circuit Judge, dissenting:
    The majority’s reliance on our decision in U.S.
    Department of Homeland Security v. Federal Labor Relations
    Authority, 
    751 F.3d 665
    (D.C. Cir. 2015) (DHS), seems at first
    glance to make a lot of sense: If the statutory independence of
    Inspectors General prevents agencies from bargaining over
    their OIGs’ investigative procedures, then arbitrators shouldn’t
    be allowed to interpret investigative constraints an agency
    established via collective bargaining as applicable to its OIG.
    Like my colleagues in the majority, I respect the Inspector
    General Act and the binding precedent of our court applying it.
    The difficulty here is that in this case—unlike in DHS—we
    review an arbitrator’s award under the Railway Labor Act,
    where the scope of judicial review is “amongst the narrowest
    known to the law.” Nw. Airlines, Inc. v. Air Line Pilots Ass’n,
    Int’l, 
    808 F.2d 76
    , 80 (D.C. Cir. 1987). Taking those
    cautionary words to heart, I do not believe we have a legal basis
    to vacate the arbitrator’s award.
    Federal law strongly supports settling labor disputes
    through final and binding arbitration. See United Steelworkers
    of Am. v. Enterprise Wheel & Car Corp., 
    363 U.S. 593
    , 596-98
    (1960); United Steelworkers of Am. v. Warrior & Gulf
    Navigation Co., 
    363 U.S. 574
    , 578, 582-83 (1960). As a
    general rule, courts may not second guess arbitrators’ decisions
    on fact or law. W.R. Grace and Co. v. Local Union 759, 
    461 U.S. 757
    , 765 (1983). We lack jurisdiction even when we are
    convinced that the arbitrator “committed serious error.”
    Eastern Associated Coal Corp. v. United Mine Workers, Dist.
    17, 
    531 U.S. 57
    , 62 (2000); see Am. Postal Workers Union v.
    U.S. Postal Serv., 
    789 F.2d 1
    , 5, 8 (D.C. Cir. 1986).
    That is especially true when a labor dispute arises under
    the Railway Labor Act, which Congress enacted, inter alia, “to
    provide for the prompt and orderly settlement of all disputes
    growing out of grievances or out of the interpretation or
    2
    application of agreements covering rates of pay, rules, or
    working conditions.” 45 U.S.C. § 151a. The RLA’s objective
    of swift, fair and final dispute resolution through arbitration
    depends critically on the Act’s elimination of most
    opportunities for judicial review that would otherwise be
    available. See Bhd. of Locomotive Eng’rs v. Louisville &
    Nashville R.R. Co., 
    373 U.S. 33
    , 38 (1963). The text of the Act
    authorizes courts to set aside arbitration awards only in cases
    of (a) the arbitrator’s failure “to comply with the requirements
    of this chapter” regarding the arbitration process, (b) lack of
    jurisdiction on the arbitrator’s part, or (c) “fraud or corruption”
    by an arbitrator. 45 U.S.C. § 153 First (q); see also Union
    Pacific R.R. Co. v. Sheehan, 
    439 U.S. 89
    , 93 (1978).
    The majority finds grounds to vacate the award at issue
    under a judicially fashioned “public-policy” exception to the
    bar against judicial review of arbitral awards. See United
    Paperworkers Int’l Union v. Misco, Inc., 
    484 U.S. 29
    , 42
    (1987); W.R. Grace and 
    Co., 461 U.S. at 766
    . But in the
    decades since the Supreme Court described the exception,
    neither that Court nor this one has yet to encounter a case in
    which it found reason to invoke it—until now. This case does
    not come close to meriting such an extraordinary step.
    As the Supreme Court has envisioned it, the public policy
    exception would only be triggered by a public policy whose
    “explicit, well defined, and dominant” character could be
    “ascertained by reference to the laws and legal precedents.”
    Eastern Associated Coal 
    Corp., 531 U.S. at 62-63
    . It applies
    only where the arbitral award violates that policy. United Bhd.
    of Carpenters v. Operative Plasterers’ Int’l Assoc., 
    721 F.3d 678
    , 697 (D.C. Cir. 2013); Am. Postal Workers 
    Union, 789 F.2d at 8
    . In the face of unquestioned and vital public policy
    interests, the Court has declined to apply the public policy
    exception to vacate arbitrators’ awards that seemed, at first
    3
    blush, to conflict with those interests. The Supreme Court
    rejected public-policy based challenges to arbitral awards
    reinstating a truck driver who tested positive for drugs, Eastern
    Associated Coal 
    Corp., 531 U.S. at 62-67
    , and an operator of
    dangerous machinery found sitting alone in a car in the
    company parking lot with a marijuana cigarette burning in the
    ashtray, Misco, 
    Inc., 484 U.S. at 33
    , 42-45. Even the nation’s
    congressionally-codified      commitments       to    civil-rights
    conciliation and compliance with nondiscrimination decrees
    did not, in the view of a unanimous Supreme Court, call for
    public-policy-based vacatur of an arbitral award enforcing
    male employees’ contractual seniority against the equal-
    employment rights of women under a court-approved civil
    rights settlement. W.R. Grace and 
    Co., 461 U.S. at 764-70
    . In
    each case, the Supreme Court held itself powerless to second-
    guess the ways the arbitrators accommodated the asserted
    public policies—such as by reinstating an employee only under
    specified conditions, Eastern Associated Coal 
    Corp., 531 U.S. at 60-61
    , finding that the facts did not support the claim of
    marijuana possession on company property, Misco, 
    Inc., 484 U.S. at 40
    , 44-45, or simply by observing that the employer had
    “committed itself voluntarily to two conflicting contractual
    obligations” and so should absorb the cost of the breach rather
    than lay off senior employees whose contractual rights it settled
    away, W.R. Grace and 
    Co., 461 U.S. at 767-68
    .
    In step with the Supreme Court, we too have taken an
    “extremely narrow” approach to the public policy exception.
    Am. Postal Workers 
    Union, 789 F.2d at 8
    (emphasis in
    original). We have expressly cautioned against “intrusive
    judicial review of arbitration awards under the guise of ‘public
    policy.’” Id.; see, e.g., U.S. Postal Serv. v. Nat’l Assoc. of
    Letter Carriers, 
    810 F.2d 1239
    , 1241 (D.C. Cir. 1987); Nw.
    
    Airlines, 808 F.2d at 83
    ; U.S. Postal Serv. v. Nat’l Assoc. of
    Letter Carriers, 
    789 F.2d 1
    8, 20 (D.C. Cir. 1986).
    4
    We are bound to take the same approach here, and our
    decision in American Postal Workers Union closely maps the
    way. On that appeal, the U.S. Postal Service sought vacatur of
    an arbitrator’s reinstatement of a postal worker fired for
    dishonesty in the handling of postal transactions. 
    See 789 F.2d at 8
    . The arbitrator excluded from consideration an admission
    the worker made before he was given the Miranda warning the
    labor agreement required, then overturned the dismissal for
    want of evidence to support it. 
    Id. at 3-4.
    Without questioning
    the public policy against embezzlement from the Postal
    Service, we harbored “no doubt that the instant case does not
    pose a situation requiring the invocation of a public policy
    exception.” 
    Id. at 8.
    The arbitrator’s award “was not itself
    unlawful,” nor did it “otherwise have the effect of mandating
    any illegal conduct.” 
    Id. The arbitrator
    in this case determined that Amtrak could
    not justify its decision to fire Amtrak Police Officer Sarah
    Bryant by reference to results of an interrogation in which she
    was not afforded procedural rights guaranteed by the applicable
    labor agreement. The Police Officers’ Bill of Rights, codified
    as Rule 50 of the parties’ collective bargaining agreement,
    prevents adverse action against a covered employee based on
    her own statements if Amtrak obtained the statements through
    interrogation conducted without certain procedural safeguards.
    As part of its disciplinary process, Amtrak’s Internal Affairs
    Unit interviewed Officer Bryant in compliance with Rule 50.
    The OIG, meanwhile, conducted its own investigation
    unconstrained by Rule 50.          Amtrak’s Internal Affairs
    investigation failed to yield evidence supporting Bryant’s
    firing. The way the Inspector General had questioned Bryant
    then became an issue only because Amtrak wanted the OIG’s
    report to do double duty—supporting personnel action against
    Bryant as well as, per the Inspector General Act of 1978, 5
    5
    U.S.C. App. 3 § 2, reporting to the agency head the results of
    audits and investigations.
    The reasoning of the arbitrator’s opinion did indeed fail to
    anticipate our decision in DHS, and I can readily see how the
    arbitrator’s statement that the CBA’s “Rule 50 does not exempt
    Amtrak OIG” is in tension with DHS’s rule that “public sector
    unions and agencies can neither add to nor subtract from the
    OIG’s investigatory authority through collective bargaining.”
    
    DHS, 751 F.3d at 671
    ; see Maj. Op. at 4 & n. 4. But it exceeds
    the scope of our review to scrutinize whether the arbitrator’s
    reasoning conflicts with the claimed “public policy.” Our task
    “is limited to determining whether the award itself, as
    contrasted with the reasoning that underlies it, creates an
    explicit conflict with the law.” SAMUEL WILLISTON &
    RICHARD A. LORD, A TREATISE ON THE LAW OF CONTRACTS
    § 56:111 (Labor Arbitration Agreements–Confirmation and
    Enforcement of Awards–Effect of Violation of Law or Public
    Policy) (4th ed. 2016); see also LARRY E. EDMONSON, DOMKE
    ON COMMERCIAL ARBITRATION § 38:10 (3d ed. 2016) (“A
    court . . . will simply look whether the award itself violates
    public policy.”). If the arbitrator’s award does not itself direct
    a violation of law or an identifiable, well-defined and dominant
    public policy, we have no authority to disturb it.
    The award here is fully compatible with the Inspector
    General’s independence. The award did not require the OIG to
    bargain collectively, nor did it “conclude[] that Rule 50 bound
    the Inspector General” in contravention of DHS. Maj. Op. at
    4. What the arbitrator ruled was:
    The Corporation did not have just cause to discharge
    Grievant Sarah Bryant because the procedural
    safeguards guaranteed to employees by Rule 50 of the
    parties’ Agreement were not afforded her during the
    6
    September 25, 2012, Amtrak OIG interrogation.
    Therefore, Grievant shall promptly be reinstated to her
    prior position and made whole, with payment of all
    back pay and benefits, and restoration of her seniority.
    J.A. 220. The award merely invalidates Amtrak’s discharge
    of Bryant based on an interrogation in which she was not
    afforded her procedural rights. As an arbitration award, it is
    case-specific, not precedential. See U.S. Postal 
    Serv., 789 F.2d at 21
    . The question for us is limited to whether the arbitral
    award—the award itself or the relief ordered, not the reasoning
    on which it rests—“compels conduct contrary to a well-defined
    public policy.” U.S. Postal 
    Serv., 789 F.2d at 20
    . Nothing in
    this award compels any public policy violation. Cf. W.R. Grace
    and 
    Co., 461 U.S. at 767
    (noting that nothing in the collective
    bargaining agreement, as interpreted by the arbitrator, required
    the company to violate the conciliation order).
    The majority finds fault with my reading of the arbitrator’s
    award as narrowly focused on Bryant’s rights rather than more
    generally controlling the OIG’s activities. See Maj. Op. at 4
    n.4. The majority asserts that the arbitrator violated public
    policy because, in the arbitrator’s opinion (and only there, not
    in her award), she reasoned “that the Inspector General ‘must
    comply with’ Rule 50.” Maj. Op. at 4 n.4. But, again, the
    arbitrator’s reasoning is not the yardstick against which
    compliance with public policy is measured. What matters is
    the award itself. See Am. Postal Workers 
    Union, 789 F.2d at 8
    ; WILLISTON, A TREATISE ON THE LAW OF CONTRACTS
    § 56:111. Here, the award announces that Amtrak lacked cause
    to fire Bryant because the procedural safeguards “guaranteed
    to employees by Rule 50 of the parties’ Agreement were not
    afforded her.” J.A. 220. Neither the arbitrator’s award nor my
    preferred disposition of this appeal would require the Inspector
    General to conduct its independent watchdog role as auditor
    7
    and investigator, see 5 U.S.C. App. 3 § 2, in conformity with
    Rule 50. Here, as in American Postal Workers, the arbitrator’s
    decision was “nothing more than a ruling on the admissibility
    of evidence, which drew its essence from the parties’ contract
    and violated no established 
    law.” 789 F.2d at 3
    . Here, as there,
    we have “no choice in such a circumstance but to uphold and
    enforce the arbitrator’s award.” 
    Id. If Amtrak
    is unhappy with the arbitrator’s application of
    the collective bargaining agreement, presumably it may
    “negotiate a modification” to authorize Inspector General
    reports to be used in employee disciplinary actions even after
    the OIG interrogates employees without respecting their Rule
    50 rights. Am. Postal Workers 
    Union, 789 F.2d at 7
    ; see also
    Nw. 
    Airlines, 808 F.2d at 84
    . And, without any change to the
    collective bargaining agreement, Amtrak’s Office of Inspector
    General may in some or all of its investigations elect to
    question employees in a manner that qualifies its investigative
    fruits for use in Amtrak’s disciplinary process. Nothing bars
    an Inspector General from voluntarily giving Miranda
    warnings, recording interviews, or informing employees of
    their right to have a union representative present.
    The court’s decision to vacate the arbitral award in this
    case contradicts decades of precedent delineating a narrow
    public policy exception and threatens as a practical matter to
    destabilize many, if not most, arbitral awards. Indeed, its
    impact may well reach beyond labor arbitration to commercial
    arbitration under the Federal Arbitration Act, as “[t]here is no
    doubt that the scope of review of arbitration in cases involving
    mandatory arbitration of statutory claims is at least as great as
    the judicial review available in the context of collective
    bargaining.” Cole v. Burns Int’l Sec. Servs., 
    105 F.3d 1465
    ,
    1486 (D.C. Cir. 1997) (emphasis omitted). Today’s decision
    invites litigation in every case in which a disappointed party to
    8
    an arbitration can base its objection on some claim of error that
    places the award at odds with “law or public policy.” Once
    arbitration becomes the start rather than the end of the dispute
    resolution process, it no longer serves the role Congress
    envisioned. Because I do not see how, consistent with binding
    precedent, the court can relieve Amtrak of its obligation to
    comply with its collective bargaining agreement and the
    arbitral awards rendered thereunder, I respectfully dissent.