Robert Bradford, Jr. v. UPRC

Filing

FILED OPINION (RICHARD C. TALLMAN, JOHNNIE B. RAWLINSON and MARVIN J. GARBIS) AFFIRMED. Judge: MJG Authoring. FILED AND ENTERED JUDGMENT. [9241428]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT BRADFORD, JR.,
Petitioner-Appellant,
v.

No. 12-16469
D.C. No.
4:10-cv-00751JGZ

UNION PACIFIC RAILROAD
COMPANY, a Delaware corporation,
Respondent-Appellee.

OPINION

Appeal from the United States District Court
for the District of Arizona
Jennifer G. Zipps, District Judge, Presiding
Submitted February 14, 2014*
San Francisco, California
Filed September 16, 2014
Before: Richard C. Tallman and Johnnie B. Rawlinson,
Circuit Judges, and Marvin J. Garbis, Senior District
Judge.**
Opinion by Judge Garbis

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**

The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.

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BRADFORD V. UNION PACIFIC R.R. CO.
SUMMARY***

Labor Law
The panel affirmed the district court’s summary judgment
rejecting petitioner’s challenge to a Public Law Board
arbitration decision affirming the termination of his
employment with a railroad.
The panel held that there was no violation of petitioner’s
due process rights in a preliminary on-property investigative
hearing because the railroad company was a private actor
with respect to the hearing. The panel held that the Public
Law Board did not violate petitioner’s due process rights
because the procedures it used did not present a meaningful
risk of a erroneous deprivation of petitioner’s interest in
maintaining his employment. The Board also did not err
regarding procedural deficiencies in the on-property hearing
because it was acting within its jurisdiction, and its decision
not to remedy alleged procedural violations was beyond the
scope of judicial review. The panel concluded that the Board
considered a complete record and did not violate the Railway
Labor Act.

COUNSEL
Jeffrey H. Jacobson, Jacobson Law Firm, Tuscon, Arizona,
for Petitioner-Appellant.

***

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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Clifford A. Godiner, Thompson Coburn LLP, St. Louis,
Missouri, for Respondents-Appellees.

OPINION
GARBIS, District Judge:
Petitioner-Appellant Robert Bradford, Jr. (“Bradford”)
appeals from the district court’s grant of summary judgment
on his challenge to a Public Law Board decision affirming the
termination of his employment with a railroad. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and, for the reasons
stated herein, we affirm.
I. BACKGROUND
Bradford commenced his employment with Union Pacific
Railroad Company (“Union Pacific”) in 1979. On December
7, 2007, following procedures discussed herein, Union Pacific
fired Bradford due to drug use.
A. The Drug Tests
In July 2006, Union Pacific, where Bradford was
employed as a conductor, fired him for failing a mandatory
drug test. But in October 2006, after Bradford admitted that
he had violated Union Pacific’s drug and alcohol policy (the
“Policy”) and agreed to seek treatment, he was allowed to
return to service. Bradford’s reinstatement was subject to a
Policy provision requiring his dismissal should he violate the
Policy again within ten years.

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In the early morning of September 4, 2007, Bradford was
scheduled to depart on a train from Tucson, Arizona, to El
Paso, Texas. Prior to departure, the Federal Railroad
Administration subjected Bradford to a random drug and
alcohol test. He provided a urine specimen (the “First
Specimen”) that was “split” so that a second sample (the
“Split Sample”) was saved for a possible re-test.
Hours later, after arriving in El Paso, Bradford slipped
while on the job and injured his tailbone. As a result of the
fall, Bradford was subjected to a “for cause” drug and alcohol
test during which he gave a urine specimen (the “Second
Specimen”).
The lab results on the First Specimen, which were
available a week after the test date, were positive for
amphetamines. But the Second Specimen, collected the same
day as the First Specimen, was negative for drugs and
alcohol.
Because of the positive drug test, on or about September
13, 2007, Union Pacific initiated disciplinary procedures
against Bradford pursuant to the Collective Bargaining
Agreement (the “CBA”) between Union Pacific and the
United Transportation Union (“UTU”), which represents
Bradford and other Union Pacific conductors.
Two weeks after Union Pacific initiated the disciplinary
action, Bradford had a sample of his hair tested for
amphetamines at an independent lab. The hair tested negative
for drugs, including amphetamines, suggesting that Bradford
had not consumed amphetamines during the preceding 90 to
120 days.

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B. The On-Property Investigative Hearing
The CBA provides that disciplinary procedures begin
with a hearing during which a Union Pacific hearing officer
will develop a record. After the hearing, a superintendent
issues a decision.
Hearing Officer Brian Crehan (“Crehan”) was assigned to
Bradford’s case. Crehan initially delayed the hearing because
UTU claimed that it did not have access to the materials
Union Pacific would use in its case. When the hearing
convened, Bradford disputed Union Pacific’s reports that he
had not asked for a test of the split sample on the First
Specimen. In any event, the Split Sample was tested and the
results confirmed the presence of amphetamines in the First
Specimen.
Along with the positive Split Sample test result, Crehan
admitted evidence of the negative test result from the test of
the Second Specimen. Crehan refused to admit evidence of
the negative hair sample test independently obtained by
Bradford. He also did not admit the testimony of Bradford’s
expert witness, forensic toxicologist Mark Stoltman, and did
not permit Bradford to utilize Stoltman’s testimony in closing
statements. Nevertheless, UTU submitted the excluded
evidence to the superintendent who made the disciplinary
decision.
In the course of the on-property investigative hearing,
Crehan engaged in an ex parte meeting with Union Pacific
officials and directly questioned Bradford.
On December 7, 2007, the superintendent sustained the
charge against Bradford and dismissed him from Union

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Pacific. UTU appealed the superintendent’s decision on
Bradford’s behalf, but Union Pacific rejected the appeal. The
matter then went before the Public Law Board (“Board”) for
binding arbitration.
C. The Public Law Board Proceeding
In 2003, Union Pacific and UTU agreed to form a Public
Law Board. The Board consists of three representatives: one
from UTU, one from Union Pacific, and one neutral party.
Pursuant to the 2003 agreement, the Board can only accept
evidence that the parties presented at the on-property hearing.
It cannot gather new evidence, although it can request
additional data from the parties.
The Board considered: (1) Bradford’s procedural
objections to the on-property investigative hearing; (2) the
results of the three drug tests administered by Union Pacific
(the First Specimen, the Split Sample, and the Second
Specimen); (3) the evidence related to the hair-sample drug
test obtained by Bradford; and (4) a letter from the Medical
Review Officer1 explaining that Bradford could have tested
positive for amphetamines in the morning but not in the
afternoon.
The Board found that Union Pacific had shown that
Bradford violated the conditions of his return to employment
and Union Pacific’s Policy.
The Board rejected Bradford’s procedural objections to
the on-property investigative hearing and concluded that
1

The Board included the text of the Medical Review Officer’s letter in
its award.

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Union Pacific was not required to provide Bradford with
litigation packets from the labs that tested his sample. The
Board found insignificant the fact that Union Pacific
requested that the Split Sample be tested when the Medical
Review Officer denied having received Bradford’s request.
The Board appeared to agree with the Hearing Officer that
Bradford’s subsequent hair sample test and accompanying
expert witness were not relevant to the issue of whether he
tested positive for drug use on September 4, 2007.
D. The District Court Proceedings
Bradford appealed the Board’s decision to the United
States District Court for the District of Arizona. The parties
filed cross-motions for summary judgment. The district court
held against Bradford and entered judgment in favor of Union
Pacific on all claims. Bradford v. Union Pac. R.R. Co., 872
F. Supp. 2d 912, 914, 924 (D. Ariz. 2012).
The district court rejected Bradford’s contention that the
Railway Labor Act (“RLA”) required the Board to gather
additional evidence and found that the Board had not violated
the RLA. Id. at 918. Specifically, it concluded that the Board
had acted within the scope of its authority and jurisdiction as
outlined by the CBA. Id. at 919–20. The district court also
determined that the Board did not violate Bradford’s due
process rights by deciding his case without the litigation
packet. Id. at 922–23.
Finally, the district court denied Bradford’s claims
centered on public policy and Union Pacific’s purported

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violations of federal regulations and other procedures2 on the
grounds that there was no established public policy interest at
stake and that any violations by Union Pacific would not have
changed the Board’s decision. See id. at 923–24. According
to the district court, the Board had considered Union Pacific’s
actions and determined that they did not rise to the level of a
constitutional violation. Id. at 923. Further, the district court
concluded that even if Union Pacific had violated federal
regulations, any remedy was available through the Federal
Railroad Administration, not through the Board. Id. at
923–24.
Bradford filed a timely appeal of the district court’s
decision to this court.
II.

STANDARD OF REVIEW

We review de novo a district court’s grant of summary
judgment enforcing an arbitration award. Sheet Metal
Workers’ Int’l Ass’n Local Union No. 359 v. Madison Indus.,
Inc. of Ariz., 84 F.3d 1186, 1190 (9th Cir. 1996).
III.

DISCUSSION
A. Scope of Review
As stated in Union Pac. R.R. Co. v. Sheehan:

2
Bradford argued that that Union Pacific violated federal regulations by
failing to produce the litigation packet and that his case should have been
decided using Union Pacific’s Drug and Alcohol Prevention Program
Discipline Panel. Bradford v. Union Pac. R.R. Co., 872 F. Supp. 2d 912,
923 (D. Ariz. 2012).

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Judicial review of Adjustment Board orders is
limited to three specific grounds: (1) failure of
the Adjustment Board to comply with the
requirements of the Railway Labor Act;
(2) failure of the Adjustment Board to
conform, or confine, itself to matters within
the scope of its jurisdiction; and (3) fraud or
corruption. Only upon one or more of these
bases may a court set aside an order of the
Adjustment Board.
439 U.S. 89, 93 (1978). However, in Edelman v. W. Airlines,
Inc., we held that a district court would have jurisdiction to
determine whether an adjustment board had violated a party’s
constitutional rights. 892 F.2d 839, 847 (9th Cir. 1989).
B. The On-Property Investigative Hearing
It is well-established that “[t]he guarantees of the Fifth
and Fourteenth amendments apply only to governmental
action, and not to private action.” English v. Burlington N.
R.R. Co., 18 F.3d 741, 744 (9th Cir. 1994). In English, the
railroad discharged an employee after the employee assaulted
another employee in an off-duty incident. Id. at 743. The
employee claimed that the carrier violated his Fifth and
Fourteenth Amendment rights by asking him to waive his
right against self-incrimination during the on-property
hearing. Id. at 744. We stated that “to sustain a due process
claim [the employee] must show that [the carrier’s] hearing
represented governmental action,” and determined that the
investigation, including the on-property hearing, was a
private action. Id.

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Union Pacific in the instant case, like the railroad
company in English, was a private actor with respect to the
on-property hearing. Hence, there was no violation of
Bradford’s due process rights.
C. The Public Law Board Proceeding
Bradford next contends that the Board violated his due
process rights by virtue of its own proceedings and its alleged
failure to remedy the procedural violations that occurred
during the on-property hearing.
1. The Board did not violate Bradford’s due
process rights
The actions of the Board can constitute government
action. Hence, the Board must afford a party, such as
Bradford, due process. See id. Thus, we must consider what
process Bradford was owed.
A litigant receives adequate due process where, in the
context of the circumstances at issue, sufficient procedures
provide the individual an opportunity to be heard before he is
deprived of life, liberty, or property. Edelman, 892 F.2d at
847. The Supreme Court of the United States has recognized
three factors that a court should consider in determining
whether there was adequate due process:
1. [T]he private interest that will be affected
by the official action;
2. [T]he risk of an erroneous deprivation of
such interest through the procedures used, and

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the probable value, if any, of additional or
substitute procedural safeguards; and
3. [T]he Government’s interest, including the
function involved and the fiscal and
administrative burdens that the additional or
substitute procedural requirement would
entail.
Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976).
In regard to the Board’s procedures—the “official” action
in this case—Bradford certainly has a strong interest in
maintaining his employment and the Government has a strong
interest in the expeditious resolution of minor disputes that
could disrupt railway transportation.3 However, as to the
second Mathews factor, the procedures that the Board used
did not present a meaningful risk of an erroneous deprivation
of Bradford’s interest.
Under the RLA, if an employee and a carrier cannot reach
an agreement, “the dispute[] may be referred by petition . . .
to the . . . Board with a full statement of the facts and all
supporting data bearing upon the dispute[].” 45 U.S.C.
§ 153(i). Bradford asserts that the Board considered an
incomplete record because the Hearing Officer excluded
evidence relevant to the dispute, including his negative hair
sample test and the testimony of an expert witness. However,

3
See Edelman v. W. Airlines, Inc., 892 F.2d 839, 848 (9th Cir. 1989)
(noting that “[o]f course, [the employee] asserts a significant interest in
continued employment” and that “the government has an important
interest in allowing minor disputes under the [Railway Labor Act] to be
settled in an efficient and informal manner”).

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the Board received all the evidence submitted in the petition
for review, including the evidence that the Hearing Officer
had admitted and excluded.
Bradford claims that the Board’s record was incomplete
because Union Pacific never produced the litigation packet
(i.e., his medical records from the labs that tested his urine
specimens), as required by statute. A Medical Review
Officer must produce the litigation packet if an employee
requests it. 49 C.F.R. § 40.329(a) (“As an MRO or service
agent you must provide, within 10 business days of receiving
a written request from an employee, copies of any records
pertaining to the employee’s use of alcohol and/or drugs,
including records of the employee’s . . . mandated drug
and/or alcohol tests.”). The parties dispute whether Bradford
actually filed the request for the litigation packet. However,
the Board had the transcripts and exhibits from the hearing in
which the parties disputed whether the request was sent,
along with the positive results of the split sample test, the
negative results of the Second Specimen test, and the
subsequent negative hair sample test Bradford provided. The
Board ultimately determined, quite reasonably, that it had
enough information to render a decision without the litigation
packet.
Even if the Board mistakenly absolved Union Pacific of
its responsibility regarding provision of the litigation packet,
any error was immaterial.4 The Board met the statutory

4
Courts must respect even a legally erroneous Board award. United
Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S. 29, 38
(1987) (explaining that an arbitrator’s award must be upheld even if the
arbitrator misreads the contract); cf. id. at 39 (“[I]mprovident, even silly,
factfinding . . . is hardly a sufficient basis for disregarding what the

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requirement by considering all of the evidence provided. See
29 C.F.R. § 301.5 (d) (“[A]ll data submitted in support of
employees’ position must affirmatively show the same to
have been presented to the carrier and made a part of the
particular question in dispute.”); id. § 301.5 (e) (same
language addressed to the carrier).
In Goff v. Dakota, Minnesota & Eastern Railroad Corp.,
the Eighth Circuit considered a case in which a transcript
submitted to the Board omitted a recess that occurred during
the hearing and after which a witness changed his testimony.
276 F.3d 992, 997–98 (8th Cir. 2002). Additionally, the
carrier had refused to release the identity of the individual
who ordered the drug test and under what authority. Id. at
998. Although the Eighth Circuit noted that the omission of
the recess was “odd,” it concluded the carrier’s actions did
not rise to the level of violating due process, in part because
the employee had “ample opportunity to present his
arguments.” Id. Like the plaintiff in Goff, Bradford had
ample opportunity to present his arguments, even though he
was not permitted to introduce all the evidence he desired
during the on-property investigative hearing.
The Board considered the evidence it was required to
consider, so it did not deny Bradford due process.
2. The Board did not err regarding on-property
investigative hearing deficiencies
Bradford asserts that there were various procedural
deficiencies in the on-property investigative hearing. His
[arbitrator] appointed by the parties determined to be the historical
facts.”).

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contentions include, in addition to the litigation packet
contention discussed supra, (1) the Hearing Officer’s
allegedly illegal request that the lab test Bradford’s Split
Sample; (2) an ex parte meeting between the Hearing Officer
and Union Pacific officials; and (3) alleged problems with the
collection of the Split Sample.
The Memorandum of Agreement attached to the CBA
states that “[e]mployees will not be disciplined without just
and sufficient cause as determined by a fair and impartial
investigation except as provided [in the Agreement].” In its
award, the Board addressed Bradford’s procedural
complaints, although it did not resolve them in his favor.
That the Board considered these issues indicates that it was
determining whether the hearing was fair and whether there
was sufficient cause to discipline Bradford. This is within the
confines of the CBA, as required by Supreme Court
precedent. United Steelworkers of Am. v. Enter. Wheel & Car
Corp., 363 U.S. 593, 597 (1960) (requiring that an arbitrator’s
award “draw[] its essence from the collective bargaining
agreement”). Therefore, the Board was acting within its
jurisdiction when it declined to remedy the alleged procedural
issues with the on-property hearing.
Further, the Board’s decision not to remedy Union
Pacific’s alleged violations during the on-property
investigative hearing is beyond the scope of judicial review.
Courts may not second-guess an arbitrator’s determinations
simply because another decision is plausible. See United
Paperworkers Int’l Union, AFL-CIO v. Misco, Inc., 484 U.S.
29, 38 (1987) (“To resolve disputes about the application of
a collective-bargaining agreement, an arbitrator must find
facts and a court may not reject those findings simply because
it disagrees with them.”). Even serious errors of fact or law

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are not sufficient for a court to overturn an arbitrator’s award,
provided the arbitrator is acting within its jurisdiction and not
“stray[ing] from interpretation and application of the
agreement.” Major League Baseball Players Ass’n v.
Garvey, 532 U.S. 504, 509 (2001).
3. The Board did not violate the RLA
Bradford does not expressly claim that the Board violated
the RLA. However, his claim that the Board violated his due
process rights by issuing its decision without a complete
record may be interpreted to include a contention that there
was a violation of the RLA, specifically 45 U.S.C. § 153(i).5
Even if Bradford had made such a contention, his position
would lack merit. The Board considered a complete record
and did not violate the RLA.
AFFIRMED.

5

See 45 U.S.C. § 153(i) (“The disputes between an employee . . . and a
carrier . . . shall be handled in the usual manner up to and including the
chief operating officer of the carrier designated to handle such disputes;
but, failing to reach an adjustment in this manner, the disputes may be
referred . . . to the . . . Adjustment Board with a full statement of the facts
and all supporting data bearing upon the disputes.”).