Veolia Transportation Service v. United Transportation Union

Filing

Opinion issued by court as to Appellant Veolia Transportation Services, Inc.. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-16811
Non-Argument Calendar
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D.C. Docket No. 1:13-cv-24125-DPG

VEOLIA TRANSPORTATION SERVICES, INC.,
Plaintiff - Counter Defendant - Appellant,
versus
UNITED TRANSPORTATION UNION,
Defendant - Counter Claimant - Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(August 16, 2017)

Before JORDAN, ROSENBAUM and BLACK, Circuit Judges.
PER CURIAM:

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Veolia Transportation Services, Inc. (Veolia) appeals the district court’s
grant of summary judgment to the United Transportation Union (the Union) which
foreclosed its effort to vacate an arbitration award in favor of the Union.
Recognizing that judicial review of arbitration results is very limited and
challenges are rebuffed in “all but the most unusual circumstances,” Wiregrass
Metal Trades Council v. Shaw Envtl. & Infrastructure, Inc., 837 F.3d 1083, 1086
(11th Cir. 2016), Veolia asserts the arbitrator acted outside the scope of his
authority and impermissibly added to the scope of the parties’ collective bargaining
agreement. In addition, Veolia contends it is impossible to comply with the award.
In reality, however, Veolia is contesting the merits of the arbitrator’s decision, and
the district court did not err in granting summary judgment in favor of the Union.
Accordingly, after review,1 we affirm.
I. BACKGROUND
Veolia operates the Tri-Rail commuter rail system in South Florida pursuant
to a contract with the South Florida Regional Transportation Authority. The Union
represents Veolia’s train and engine service employees. Accordingly, Veolia and
the Union are parties to a collective bargaining agreement (the CBA) governing the
terms and conditions of the Union members’ employment. In particular, the CBA

1

We review the district court’s grant of summary judgment to the Union de novo.
Wiregrass, 837 F.3d at 1087.
2

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provides a process by which employee misconduct is investigated and punished,
and includes an appeal structure culminating in arbitration.
Richard C. Beall (Beall) was a Locomotive Engineer on a commuter train
operated by Veolia on the Tri-Rail system between West Palm Beach and Miami,
Florida. At the time, CSX Transportation (CSX) owned and controlled the tracks
on which the Tri-Rail system operates. Veolia and its engineers were required to
comply with CSX rules, one of which is Operating Rule 44. Rule 44 prescribes
certain procedures an engineer must follow when his train passes trackside signs.
On September 26, 2012, Veolia and CSX were conducting efficiency tests and
placed a sign covered by Rule 44 next to the tracks on which Beall’s train was
scheduled to travel. As his train passed the sign, Beall failed to notify a dispatcher
and to slow his train’s speed, both of which he was required to do under the rule.
Veolia launched a formal internal investigation and determined Beall violated Rule
44. The company terminated him on November 12, 2012, and his Engineer
certificate was revoked for six months.
The Union appealed the decision. After the internal grievance procedures
were exhausted, the parties submitted the matter to an arbitrator in accordance with
the CBA. The parties posed the following question to the arbitrator: “Did [Veolia]
properly find [Beall] in violation of CSX Operating Rule 44 and was [Beall’s]

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termination from service proper and in accordance with the Parties’ Collective
Bargaining Agreement?”
In an award dated October 14, 2013 (the 2013 Award), the arbitrator
affirmed the result of Veolia’s internal disciplinary process to the extent he found
Beall violated Rule 44. He determined, however, that termination was too severe a
penalty. The arbitrator stated that although Beall’s violation was “serious and
properly warrant[ed] serious discipline,” dismissal was “excessive” and “not
commensurate with the infraction” in light of Beall’s forty-three years of
experience, fifteen of which he served as a Tri-Rail commuter operator, and the
fact that no damage or injury resulted from the infraction. The arbitrator
determined a six-month disciplinary suspension was appropriate instead, and he
ordered Beall reinstated and made whole for back pay and benefits outside the sixmonth disciplinary period.
One month later, Veolia filed this suit in the Southern District of Florida
seeking to vacate the 2013 Award on the grounds that it conflicted with the plain
terms of the CBA and that the arbitrator acted outside the scope of his authority.
The parties filed cross motions for summary judgment on August 11, 2014. In its
memorandum in support of its motion, Veolia noted almost in passing that it was
undisputed that, in addition to the discipline Veolia had imposed, CSX had
independently barred Beall from serving on its rails. It was therefore impossible
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for Veolia to reinstate Beall because it could not put him back to work on Tri-Rail
track. The upshot of that fact, Veolia claimed, was that the 2013 Award should be
vacated. The district court determined the 2013 Award did not resolve this
particular factual contention, so it remanded the case to the arbitrator to “address
the issue of CSX Transportation’s disqualification of [Beall].” It held the parties’
cross motions for summary judgment in abeyance pending the final disposition of
the issue.
In a June 2015 proceeding on remand (the 2015 Proceeding), the arbitrator
found no grounds for altering the 2013 Award. Although there was testimony
indicating that CSX would have made its own judgment as to Beall’s eligibility to
return to work on the Tri-Rail system independently of Veolia’s decision, that
evidence “went untested because [Veolia] never approached CSX to request the
prohibition be lifted;” instead, Veolia complained in federal court. On the record
before him, the arbitrator determined “the evidence [was] sufficient to find that
both [Veolia] and the [Union] had reason to understand that [Beall’s] reinstatement
depended on his prohibition being lifted” and that it was “reasonable to expect
[Veolia] to make a good faith effort to approach [CSX] to have the prohibition
lifted.” In addition, the arbitrator noted that in March 2015, CSX’s administrative
authority ceased when its contract with the Florida Department of Transportation
terminated, changing the factual landscape against which Veolia’s impossibility
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argument had been made. In short, the evidence did not show on balance that
reinstating Beall was impossible as Veolia claimed.
The district court subsequently reopened the case and considered the parties’
motions for summary judgment. It declined to vacate the 2013 Award or the 2015
Proceeding (together, the Arbitration Award) under the highly deferential standard
of review, finding the CBA was “open to an interpretation that the arbitrator can
modify an employee’s discipline through the grievance process.” Accordingly, the
court denied summary judgment to Veolia, granted summary judgment to the
Union, and ordered Veolia to comply with the Arbitration Award. Veolia
appealed.
II. DISCUSSION
Under the CBA, employees are not to be disciplined without “a fair and
impartial investigation.” Discipline can be imposed for “just cause,” and
“depending on the nature of the incident, [penalties] can range from a written
reprimand, to suspension, to dismissal.” The agreement does not enumerate
specific penalties for specific offenses; rather, the nature of the discipline is
dependent on the nature of the incident, as determined in the investigation. If the
employee is disciplined as a result of an investigation, he may appeal the
investigation decision. The first several steps of the appeal are internal. However,
if the decision of the final internal appeal, rendered by the General Manager,
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remains disputed, either party may appeal to an impartial arbitrator selected in
accordance with the CBA.
A. Whether the Arbitrator Erred in Rendering the 2013 Award
Veolia contends the arbitrator erred in rendering the 2013 Award for two
reasons. First, the arbitrator exceeded the scope of the question presented to him.
In Veolia’s view, the arbitrator was asked only to determine if Beall violated CSX
Operating Rule 44, and if so whether Veolia’s discipline was permitted by the
CBA. Veolia argues the parties did not seek a decision as to whether the discipline
imposed was appropriate in Beall’s case. Notably, Veolia does not suggest the
CBA bars arbitrators from modifying discipline imposed in an investigation in
general; rather, Veolia merely asserts that the parties did not authorize this
particular arbitrator to alter Beall’s punishment. Second, Veolia contends the
arbitrator implicitly added a provision to the CBA in excess of his authority when
he held that Beall’s punishment was too severe. Veolia quibbles with the language
of the 2013 Award in which the arbitrator stated that “the standard to permanently
separate [Beall] from his job rises beyond that of finding him guilty of having
violated an operating rule,” in part because of his lengthy service in the railroad
industry. The company imagines this amounted to an amendment to the CBA,
since the CBA nowhere provides that Veolia must meet an elevated burden to
terminate a longstanding employee.
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In light of the highly deferential standard of review applicable in cases such
as this one, Veolia’s contentions are meritless. “Judicial review of a laborarbitration decision pursuant to [a collective bargaining] agreement is very
limited.” Major League Baseball Players Ass’n v. Garvey, 532 U.S. 504, 509
(2001); see also United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied
Indus. & Serv. Workers Int’l Union v. Wise Alloys, LLC, 807 F.3d 1258, 1271
(11th Cir. 2015) (characterizing such review as “highly deferential” and
“extremely limited”). As Veolia concedes, the CBA permits the arbitrator to
modify the discipline imposed on an employee found guilty in an investigation.
Indeed, the CBA appears to fully integrate the arbitrator into the grievance process,
treating the arbitrator and the rest of the appeal structure nearly identically.
Viewing the CBA in this light, nothing about the question presented to the
arbitrator indicates his contractually agreed authority to modify punishments was
limited as Veolia suggests. The parties asked the arbitrator to determine whether
Beall’s “termination from service [was] proper and in accordance with [the CBA].”
The question presented can be reasonably interpreted to ask the arbitrator to
determine not only whether termination was a permissible penalty under the CBA,
but also whether it was “proper,” i.e., whether it was appropriate under the
circumstances. This may even be the most reasonable interpretation against the
backdrop of the CBA; in any event, it is not one on which this Court will vacate
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the award. See IMC-Agrico Co. v. Int’l Chem. Workers Council, 171 F.3d 1322,
1326 (11th Cir. 1999) (“It is not our role to review the merits of the arbitrator’s
interpretation, but only to ask whether it was arguably based on the language of the
agreement.”); Wise Alloys, 807 F.3d at 1271 (“[W]e review a labor arbitration
award for ‘whether [it] is irrational, whether it fails to draw its essence from the
collective bargaining agreement or whether it exceeds the scope of the arbitrator’s
authority.’” (quoting Osram Sylvania, Inc. v. Teamsters Local Union 528, 87 F.3d
1261, 1263 (11th Cir. 1996))).
Veolia’s assertion that the arbitrator impermissibly added a provision to the
CBA fails for similar reasons. The CBA does not impose a rigid or formulaic
penalty structure as Veolia implies. Rather, it states only that “[d]iscipline for just
cause, if imposed, depending on the nature of the incident, can range from a
written reprimand, to suspension, to dismissal.” This malleable standard is broad
enough to encompass what the arbitrator did here in weighing Beall’s seniority and
the absence of any damage resulting from his violation. When he stated that “the
standard to permanently separate [Beall] from his job rises beyond that of finding
him guilty of having violated an operating rule,” the arbitrator was reasonably
interpreting and applying the concept of “just cause . . . depending on the nature of
the incident” as provided in the CBA, not writing in a new provision. See Wise
Alloys, 807 F.3d at 1272 (“To prevail in vacating an arbitration award, the
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challenger must refute every reasonable basis upon which the arbitrator may have
acted.” (quotation omitted)). Nothing about the award “contradict[ed] the express
language of the agreement” or added any term to it. IMC-Agrico, 171 F.3d at
1325.
B. Whether Reinstatement Was Impossible
Veolia next contends the Arbitration Award cannot be enforced because
CSX suspended Beall. Thus, even if Veolia reinstated him, it would be powerless
to put him back to work on CSX tracks. As Veolia concedes, however, the
arbitrator already addressed this issue at the direction of the district court on
remand in the 2015 Proceeding. Once again, Veolia is in essence seeking to
relitigate the case because it is unsatisfied with the result of the arbitration to which
it agreed to submit. But we “do not sit to hear claims of factual or legal error by an
arbitrator.” United Paperworkers Int’l Union v. Misco, Inc., 484 U.S. 29, 38
(1987). Veolia had its chance before the arbitrator to show the facts on the ground
precluded Beall’s reinstatement. It lost, and neither this Court nor the district court
is in a position to reevaluate the arbitrator’s decision. See Garvey, 532 U.S. at 509
(“Courts are not authorized to review the arbitrator’s decision on the merits despite
allegations that the decision rests on factual errors or misinterprets the parties’
agreement.”); Wise Alloys, 807 F.3d at 1271 (“We do not review claims of factual
or legal error by an arbitrator in the same manner as we review the decisions of
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district courts.”). The arbitrator determined that Veolia never attempted to have
CSX revoke Beall’s suspension, and noted that by the time of the 2015 Proceeding,
CSX’s contract had expired and it no longer controlled the tracks in any case.
Pursuant to his power to modify Beall’s punishment, the arbitrator found Veolia
should not have fired him and ordered the company to take the necessary measures
to reinstate him. We “have no business weighing the merits of the grievance [or]
considering whether there is equity in a particular claim,” and so we will not vacate
the Arbitration Award on these grounds. Garvey, 532 U.S. at 509 (quoting Misco,
484 U.S. at 37).
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
AFFIRMED.

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