Submitted, San Francisco, California February 14, 2014 [*]
Appeal from the United States District Court for the District of Arizona. D.C. No. 4:10-cv-00751-JGZ. Jennifer G. Zipps, District Judge, Presiding.
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.
Jeffrey H. Jacobson, Jacobson Law Firm, Tuscon, Arizona, for Petitioner-Appellant.
Clifford A. Godiner, Thompson Coburn LLP, St. Louis, Missouri, for Respondents-Appellees.
Before: Richard C. Tallman and Johnnie B. Rawlinson, Circuit Judges, and Marvin J. Garbis, Senior District Judge.[**] Opinion by Judge Garbis.
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.
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.
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 ...