Union Pac. R.R. Co. v. Am. Ry. & Airway Supervisors' Ass'n

Decision Date26 January 2018
Docket NumberCivil Action No. SA-17-CV-270-XR
CourtU.S. District Court — Western District of Texas

Petitioner Union Pacific Railroad Company ("Union Pacific") filed this action to review and set aside an arbitration award under the Railway Labor Act, and Respondents1 have counterclaimed to enforce the arbitration award. After careful consideration of the parties' cross-motions for summary judgment (docket nos. 19 & 21), the Court will VACATE the order of the Board.


The underlying facts are undisputed. Roland Beltran worked as a Carman for Union Pacific. His position required him to hold a commercial driver's license, making him subject to drug and alcohol testing under regulations issued by the Department of Transportation ("DOT") and the Federal Motor Carrier Safety Administration ("FMCSA"). Beltran tested positive for cocaine on December 23, 2010, after which he signed a Waiver/Agreement Letter in January2011 allowing him to continue working contingent upon completing an Employee Assistance Plan ("EAP") and remaining drug free (confirmed by random drug testing). R. 117. In the Waiver/Agreement Letter, Beltran admitted that he intentionally used and tested positive for cocaine, accepted dismissal in connection with the charges, and stated that he wished to avail himself of a one-time return-to-service opportunity as provided in the UPRR Drug & Alcohol Policy (Article 21) and the controlling Companion Agreement. R. 117.2

The UPRR Drug & Alcohol Policy Article 21.1.2 provides that "[a]n employee who has been granted a one-time return to service under this provision and who violates the Union Pacific Drug & Alcohol Policy again within a ten (10) year period will be dismissed permanently." R. 170. The Waiver/Agreement Letter also noted that, if Beltran disputed a non-negative drug test result, he could request a post-suspension hearing under 49 C.F.R. § 291.104.3

Beltran tested positive for methamphetamine and amphetamine on November 20, 2014. Dr. Barnett, the Medical Review Officer ("MRO"), verified the positive result to Union Pacific on November 25, 2014 in a "Medical Review Officer Final Report" that stated that the test was conducted in accordance with 49 C.F.R. Part 40 and Part 382. R. 128. The UPRR Drug & Alcohol Policy provides that all drug tests required by DOT or Union Pacific will be performedin accordance with the specimen collection and laboratory analysis procedures in 49 C.F.R. Part 40. It also contains a section on "MRO Review" that aligns with 49 C.F.R. Part 40, though it does not include all of the provisions in Part 40. It provides that every drug test result reported by the laboratory will be reviewed by a qualified MRO and, in each case, prior to making a final decision to verify a positive test result reported by the laboratory, the MRO will make a reasonable effort to contact the employee tested and give them an opportunity to discuss the result. R. 158. "If after successfully contacting the employee, the MRO determines that there is a legitimate medical explanation for the positive test result, the MRO will report the test result as negative." Id. "If the MRO verifies the test result as positive, the MRO will instruct the employee not to report to, or perform any service. The MRO will report the result to the Union Pacific [Designated Employer Representative] for administrative action." Id.

The governing regulations, which are incorporated into the UPRR Drug & Alcohol Policy,4 provide detailed, specific guidelines and instructions for the verification process by the MRO. MROs are physicians who act as independent and impartial gatekeepers and advocate for the accuracy and integrity of the drug testing process, including providing a quality assurance review of the drug testing process for specimens and "determin[ing] whether there is a legitimate medical explanation for confirmed positive . . . drug tests results from the laboratory." 49 C.F.R. § 40.123. In § 40.123(c) governing the MRO's responsibilities, they state that the MRO "must determine whether there is a legitimate medical explanation for confirmed positive, adulterated, substituted, and invalid drug tests results from the laboratory." In § 40.129(a)(4), they direct the MRO to "conduct a verification interview" that "must include direct contact in person or bytelephone" with the employee. See also 49 C.F.R. § 40.131(a) ("When, as the MRO, you receive a confirmed positive, adulterated, substituted, or invalid test result from the laboratory, you must contact the employee directly (i.e., actually talk to the employee), on a confidential basis, to determine whether the employee wants to discuss the test result.").

Relevant here, the regulations further direct what the MRO must tell the employee at the beginning of the verification interview: (a) that the laboratory has determined that the employee's test result was positive, and the drugs for which his or her specimen tested positive; (b) explain the verification interview process to the employee and inform the employee that the MRO's decision will be based on information the employee provides in the interview; (c) explain that, if further medical evaluation is needed for the verification process, the employee must comply with the MRO's request for this evaluation and that failure to do so is equivalent of expressly declining to discuss the test result; and (d) warn an employee who has a confirmed positive test that the MRO is required to provide to third parties drug test result information and medical information5 affecting the performance of safety-sensitive duties that the employee gives the MRO in the verification process without the employee's consent. 49 C.F.R. § 40.135.

Section 40.137 addresses "On what basis does the MRO verify test results involving marijuana, cocaine, amphetamines, semi-synthetic opioids, or PCP?" and states:

(a) As the MRO, you must verify a confirmed positive test result for marijuana, cocaine, amphetamines, semi-synthetic opioids (i.e., hydrocodone, hydromorphone, oxycodone, and oxymorphone), and/or PCP unless the employee presents a legitimate medical explanation for the presence of the drug(s)/metabolite(s) in his or her system. In determining whether an employee's legally valid prescription consistent with the Controlled Substances Act for a substance in these categories constitutes a legitimate medical explanation, youmust not question whether the prescribing physician should have prescribed the substance.
(b) You must offer the employee an opportunity to present a legitimate medical explanation in all cases.
(c) The employee has the burden of proof that a legitimate medical explanation exists. The employee must present information meeting this burden at the time of the verification interview. As the MRO, you have discretion to extend the time available to the employee for this purpose for up to five days before verifying the test result, if you determine that there is a reasonable basis to believe that the employee will be able to produce relevant evidence concerning a legitimate medical explanation within that time.
(d) If you determine that there is a legitimate medical explanation, you must verify the test result as negative. Otherwise, you must verify the test result as positive.6

Section § 40.141, entitled "How does the MRO obtain information for the verification decision?" provides,

As the MRO, you must do the following as you make the determinations needed for a verification decision:
(a) You must conduct a medical interview. You must review the employee's medical history and any other relevant biomedical factors presented to you by the employee. You may direct the employee to undergo further medical evaluation by you or another physician.
(b) If the employee asserts that the presence of a drug or drug metabolite in his or her specimen results from taking prescription medication (i.e., a legally valid prescription consistent with the Controlled Substances Act), you must review and take all reasonable and necessary steps to verify the authenticity of all medical records the employee provides. You may contact the employee'sphysician or other relevant medical personnel for further information. You may request an HHS-certified laboratory with validated protocols (see § 40.81(c)) to conduct testing for D,L stereoisomers of amphetamine and methamphetamine or testing for tetrahydrocannabivarin (THC- V) when verifying lab results, as you determine necessary.

The evidence is undisputed that Dr. Barnett, the MRO, contacted Beltran to discuss the positive result, that they discussed the result, and that Dr. Barnett thereafter verified the test result as positive.7

The focus of this petition is 49 C.F.R. § 40.149, which is entitled "May the MRO change a verified drug test result?" and mandates that only the MRO may change a verified positive test result and under what circumstances. That section provides:

(a) As the MRO, you may change a verified test result only in the following situations:
(1) When you have reopened a verification that was done without an interview with an employee (see § 40.133(d)).
(2) If you receive information, not available to you at the time of the original verification, demonstrating that the laboratory made an error in identifying (e.g., a paperwork mistake) or testing (e.g., a false positive or negative) the employee's primary or split specimen. For example, suppose the laboratory originally reported a positive test result for Employee X and a negative result for Employee Y. You verified the test results as reported to you. Then the laboratory notifies you that it mixed up the two test results, and X was really negative and Y was really positive. You would change X's test result from positive to

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