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

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 18, 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.