Bradford v. Union Pac. R.R. Co., CV–10–00751–TUC–JGZ.

• Decision Date: 01 June 2012
• Docket Number: No. CV–10–00751–TUC–JGZ.,CV–10–00751–TUC–JGZ.
• Parties: Robert BRADFORD, Jr., Petitioner, v. UNION PACIFIC RAILROAD CO., a Delaware Corporation, Respondent.
• Court: U.S. District Court — District of Arizona

872 F.Supp.2d 912

Robert BRADFORD, Jr., Petitioner,

v.UNION PACIFIC RAILROAD CO., a Delaware Corporation, Respondent.

No. CV–10–00751–TUC–JGZ.

United States District Court, D. Arizona.

June 1, 2012.

Jeffrey Howard Jacobson, Jacobson Law Firm, Tucson, AZ, for Petitioner.

Clifford Alan Godiner, Thompson Coburn LLP, St. Louis, MO, for Respondent.

ORDER

JENNIFER G. ZIPPS, District Judge.

Pending before the Court is Petitioner Robert Bradford, Jr.'s (“Bradford”) Motion for Summary Judgment filed on July 22, 2011, seeking judicial review of an arbitration decision by Public Law Board

Also pending before the Court is Respondent's Cross–Motion for Summary Judgment filed on July 22, 2011. (Doc. 26.) Bradford filed an Opposition to the Motion on September 13, 2011. (Doc. 30.) Respondent filed a Reply on October 17, 2011. (Doc. 34.)

Although captioned as cross-motions for summary judgment, this matter is essentially an appeal of an administrative decision made by the Board on December 16, 2008. After fully considering the arguments, the Court denies Bradford's appeal of the Board's order and dismisses the action with prejudice.

Factual and Procedural Background

The undisputed facts of this case are as follows:

Union Pacific is a railroad and a carrier subject to the Railroad Labor Act (“RLA”). Bradford began his employment as a brakeman for Union Pacific's predecessor, Southern Pacific Railroad, in 1979. Bradford established seniority rights as a conductor in 1981 and worked in that capacity until his termination in 2007.

Because they are responsible for the movement of large freight trains weighing many tons and often traveling through populated areas, Union Pacific employees holding safety-sensitive positions, including conductors such as Bradford, are subject to mandatory drug and alcohol testing. Union Pacific contracts with an independent, federally-licensed third party testing laboratory to conduct drug and alcohol testing of urine samples provided by employees. After collection, the sample is split into two parts in the employee's presence. Both samples are sent to the laboratory; one part is tested immediately and the other is saved for subsequent re-testing. The laboratory first performs a screening test. If the screening test is positive, a confirmatory test is run. If the confirmatory test is also positive, the result is reported to a Medical Review Officer (“MRO”), a doctor not employed by Union Pacific, for review. If the MRO verifies that positive result, he/she reports only the results of the confirmatory test to Union Pacific.

In July, 2006, Bradford was subjected to a drug test, tested positive, and was terminated. Bradford admitted that he was guilty of drug use in violation of Union Pacific policy; in exchange for his admission and his agreement to seek treatment, he was returned to service on a lenience basis in October, 2006. Pursuant to Union Pacific policy, an employee who is granted a one-time return to service and violates the prohibition on drug use again within ten years will be dismissed.

At approximately 5:10 a.m. on September 4, 2007, Bradford was subjected to a follow-up drug and alcohol test at the start of his work assignment. On September 12, 2007, Dr. Randy Burnett, the MRO who reviewed Bradford's test results, notified Bradford and Union Pacific that Bradford's September 4, 2007 test was positive for amphetamines.

United Transportation Union (“UTU”) is a labor organization duly authorized to represent Union Pacific's conductors, including Bradford, under the RLA. Union Pacific and UTU are parties to a collective bargaining agreement (“CBA”) relating to the discipline of conductors, including Bradford. The CBA sets forth the procedures to be followed when a potential disciplinary event occurs. First, a Union Pacific hearing officer conducts a recorded investigation hearing. Within ten days of the hearing, a Union Pacific superintendent issues a disciplinary decision. UTU can appeal the Union Pacific disciplinary decision to a designated Union Pacific labor relations officer. Under the terms of the CBA, if UTU or the employee is unhappy with the results of this appeal, the matter may be submitted to binding arbitration before the PLB.

On September 13, 2007, Union Pacific initiated disciplinary proceedings pursuant to the CBA by mailing Bradford a “Notice of Formal Investigation” setting an investigation hearing date for September 20, 2007. At UTU's request, the investigation hearing was postponed to October 24, 2007.

Shortly after the start of the October 24, 2007 investigation hearing, UTU claimed that it had not been provided with copies of the evidence upon which Union Pacific would rely. Union Pacific Hearing Officer Brian Crehan adjourned the hearing to November 13, 2007 to allow UTU and Bradford time to review Union Pacific's evidence.

The investigation hearing did not reconvene until November 19, 2007. Union Pacific submitted reports received from the MRO stating that Bradford had tested positive for amphetamines. Bradford argued that he had timely requested testing of the split sample but that the split sample had never been tested. The hearing officer contacted the MRO's office, which stated that they had not received any requests but that they would proceed to test the split sample. The hearing was recessed. The testing was conducted by a different laboratory than the one that had performed the original test; it confirmed the positive result on November 26, 2007. The hearing was reconvened on November 30, 2007.

Also during the investigation hearing, Bradford argued that the positive test result was incorrect. Bradford stated that on September 4, 2007, while on duty, he slipped and injured his tailbone. As a result of this accident, he was subjected to another drug test at approximately 3:51 p.m., the result of which was negative. The hearing officer admitted the results of the second test into evidence. (Doc. 22–1, pg. 94.)

After the investigation hearing was completed, UTU submitted additional evidence to the Union Pacific Superintendent charged with making the disciplinary decision in Bradford's case. This additional evidence included negative drug tests of Bradford's hair conducted after his removal from service and the testimony of a purported witness, David Stoltman.

On December 7, 2007, the Union Pacific Superintendent notified Bradford that the charge against him of violating Union Pacific's drug and alcohol policy had been sustained and he was therefore being permanently dismissed from employment. Pursuant to the CBA, UTU appealed the Superintendent's decision; Union Pacific rejected the appeal. The matter was then submitted to binding arbitration before the PLB.

In his Submission to the PLB, Bradford raised the following claims: (1) the issue of Bradford's alleged substance abuse should have been resolved pursuant to Union Pacific's Prevention Program Agreement rather than the CBA procedure; (2) Bradford was not provided with a “litigation packet,” i.e. the documentary record of the drug testing procedure, prior to the investigation hearing; (3) the hearing officer erred in precluding the testimony of Bradford's expert witness and independent drug test results obtained by Bradford; (4) the hearing officer was argumentative and prosecutorial; (5) the hearing officer engaged in an improper ex parte conference with Union Pacific employees involved in the investigation; (6) the threshold levels of Bradford's drug test were below the cutoff for confirmatory testing; ¹ (7) Bradford's urine specimen was improperly collected; (8) the split sample was not tested in a timely manner; and (9) exonerating evidence demonstrates that Bradford's positive test result was incorrect. Bradford's submission included the materials provided by the UTU to the Union Pacific Superintendent following the investigation hearing.

Union Pacific also provided a Submission to the PLB. It responded to the arguments made in Bradford's Submission and provided the PLB with the transcript and exhibits from the investigation hearing (as well as other exhibits). Union Pacific also provided the PLB with a letter from the MRO dated September 17, 2007, which stated “it is scientifically possible for a specimen to be positive on a test early in the day and negative later in the day.” This letter had been previously disclosed to Bradford on March 27, 2008.

The PLB held an arbitration hearing on September 10, 2008. On December 16, 2008, the PLB issued its decision affirming Union Pacific's decision to terminate Bradford. The PLB discussed the two drugs tests to which Bradford had submitted on September 4, 2007 and the September 17, 2007 letter from the MRO reconciling the contradicting test results. Based on the drug tests and the September 17, 2007 letter, the PLB concluded that Union Pacific had proven that Bradford violated the drug and alcohol policy for a second time. The PLB rejected Bradford's concerns regarding procedural errors during the investigation hearing. The PLB found that regardless of whether Bradford had timely requested testing of the split sample, the results of the split sample testing were positive. The PLB also concluded that the testing laboratory, not Union Pacific, was responsible for furnishing Bradford with a copy of the litigation packet.

On December 14, 2010, Bradford filed the instant action, challenging the PLB's arbitration decision.

Standard of Review

Congress enacted the RLA in 1926 in order to promote stability in the railroad industry and to provide for prompt and efficient resolution of labor-management disputes arising out of railroad collective bargaining agreements. Lewy v. Southern Pacific Transp. Co., 799 F.2d 1281 1289 (9th Cir.1986). Congress specifically intended in the RLA to keep railroad labor disputes out of the courts and instead requires the use of grievance procedures and arbitration. See id. National policy favors the final settlement of...