Opinion
Civil Action No. 99-CV-75330-DT.
July 21, 2000.
Opinion AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This matter is presently before the court on defendant's motion for summary judgment. Plaintiff has filed a response brief and defendant has filed a reply. Pursuant to E.D. Mich. LR 7.1 (e)(2), the court shall decide this motion without oral argument. Accordingly, the hearing scheduled for July 19, 2000, is canceled.
Background
This is an employment case. Plaintiff James Stewart worked for 21 years for defendant CSX Transportation as a railroad yard conductor. He was discharged in May 1998, after a random drug test came back positive for cocaine. This constituted a violation of the railroad's "Rule G," which relates to "the illegal use and/or possession of a drug, narcotic, or other substance that affects alertness, coordination, reaction, response or safety." Plaintiff's union (the United Transportation Union, or UTU) and the railroad eventually submitted the dispute to arbitration, and the arbitrators upheld plaintiff's termination. In the instant lawsuit, plaintiff seeks review of the arbitrators' decision.
Plaintiff had a prior positive drug test in January 1996. At that time, a random drug test came back positive for marijuana. In February 1996, that violation of Rule G was resolved by plaintiff agreeing to participate in a drug rehabilitation program. In addition, plaintiff agreed that he would submit to random, short-notice drug testing.
On March 26, 1998, plaintiff was notified by telephone to report for a short-notice drug test. Plaintiff submitted a urine sample the next morning, as directed, and it came back positive for cocaine. In a letter dated April 2, 1998, plaintiff was told to appear on April 8, 1998, for a formal investigation into this apparent violation. At the union's request, this investigation was adjourned to April 16, 1998, and then to May 1, 1998.
At the May 1 hearing, plaintiff was represented by a union official. An investigating officer represented the railroad. A terminal manager was called as a witness by the railroad. A transcript of the hearing is attached to defendant's summary judgment motion as Exhibit 2(F). Plaintiff testified that he has never used any cocaine; that the doctor ("medical review officer," or MRO) who informed him of the positive test result, failed to tell him that he had the right to "split" the urine sample and have the other half tested separately; that the day he gave the urine sample was one of his days off and that he subsequently had his own doctor test his urine, and that test was negative.
By letter dated May 11, 1998, the railroad informed plaintiff that he was "at fault as charged" and that "[t]he discipline assessed in this case will be dismissal from services."
In June 1998, the UTU appealed this decision to CSX's director of employee relations. In this appeal, the union argued that (1) plaintiff should not have been required to undergo a drug test on his day off; (2) the drug test result was inaccurate, since plaintiff does not take any illegal drugs; (3) the positive drug test result might have been caused by over-the-counter medications plaintiff was taking and/or by an allergy shot and/or by medication plaintiff received from his dentist; and (4) the urine test performed by plaintiff's private physician was negative.
In August 1998, the director of employee relations denied this appeal. The director found that all applicable railroad regulations were followed; that plaintiff was given proper notice of the charges; and that the hearing was conducted fairly. In addition, the director noted that the medical officer had reviewed the test results and confirmed the finding of cocaine. The director also rejected the argument that the over-the-counter medications, and the allergy shot and dental medication, could have caused a "false positive" reading.
In September 1998, the union and the railroad agreed to submit this case to arbitration. Under the Railway Labor Act, this can be done by presenting the case to a "public law board," which consists of three board members, or arbitrators. One board member represents the union, one represents the railroad, and one is the neutral. The present case was submitted to Public Law Board (PLB) 5786. In a certified letter dated October 5, 1998, plaintiff's union notified plaintiff that PLB 5786 would hear the case on December 10, 1998, at 9:00 a.m., in Jacksonville, Florida. This letter invited plaintiff to attend, and indicated that the union would represent plaintiff if he chose not to do so.
PLB 5786 held the hearing as scheduled. Plaintiff attended, as did a union representative. The union also submitted a six-page brief, making the same arguments as before. In a three-page decision dated March 18, 1999, the board found unanimously in favor of the railroad. Specifically, the board found that the "formal investigation" was handled fairly and properly; that although plaintiff was not working on the day the drug test was performed, he was working on the day he received the call to report for drug testing; and that plaintiff was notified in writing of his right to have his urine sample split and retested, although he was not told of this orally when first contacted by the medical officer. The board also specifically found that the sanction of dismissal was not unduly harsh or excessive, in light of the fact that plaintiff had previously tested positive for marijuana.
Defendant's Motion for Summary Judgment
Defendant seeks summary judgment on the grounds that the board's decision can be overturned only under narrowly defined circumstances, none of which apply in this case. Under 45 U.S.C. § 153 (First) (q), which is part of the Railway Labor Act,
the findings and order of the [board] shall be conclusive on the parties, except that the order. . . may be set aside, in whole or in part, or remanded . . . for failure of the [board] to comply with the requirements of this chapter, for failure of the order to conform, or confine itself, to matters within the scope of the [board's] jurisdiction, or for fraud or corruption by a member of the division making the order.
Defendant correctly notes that in Union Pacific R.R. Co. v. Sheehan, 439 U.S. 89, 93 (1978), the Supreme Court held that judicial review of a board's order is restricted to the three circumstances indicated in the statute — namely (1) where the board violates the Railway Labor Act, (2) where the board exceeds its jurisdiction, and (3) where a board member commits fraud or corruption.
Defendant first argues that plaintiff's appeal is limited to the second of these grounds. Plaintiff's "amended complaint and amended appeal and petition to impeach public law board ruling," filed 1-19-00, states in paragraph 4 that plaintiff "hereby appeals and petitions this court to impeach the Ruling of the Public Law Board for failure of its order to conform to its jurisdiction as delineated in the Railway Labor Act." In his "amended brief in support of complaint, appeal and petition to impeach public law board ruling," attached to the amended complaint, plaintiff identifies two issues in the first section of the brief, entitled "I. Issue" — namely, "A. Whether the employer established sufficient evidence to substantiate Grievant James Stewart's discharge?" and "B. Whether Public Law Board violated Mr. Stewart's right to due process by failing to give him notice of their proceedings pursuant to the Railway Labor Act?" In the "Argument" section of his brief plaintiff raises the following three issues: (1) whether plaintiff should have been required to give a urine sample on his day off;(2) whether plaintiff was given notice of his contractual right to have the urine sample split and re-tested; and (3) whether plaintiff was give proper notice of the hearing before the board. The court shall consider all of plaintiff's arguments, whether raised in the amended complaint or in the brief attached thereto.
Plaintiff's first argument, that his discharge was not based on "sufficient evidence," is not well developed. He asserts that the positive drug test was not "authenticated, "but he makes no other argument in this connection. During the administrative proceedings in this case, plaintiff has argued that he should not have been discharged because he has never taken cocaine and the test result was a false positive. However, defendant correctly notes that this argument does not fall within any of the three statutory grounds for challenging a board decision, i.e., violation of the act, lack of jurisdiction, or fraud/corruption of a board member. Even if the court could review the board's decision for sufficiency of the evidence, the positive test result is substantial evidence in the record showing that plaintiff used cocaine.
Plaintiff's second argument is that defendant violated his due process rights "by failing to give him notice of their proceedings pursuant to the Railway Labor Act." While the court can review a board decision where the board fails to comply with the act, there is no reason to do so in this instance. Plaintiff is correct in noting that the act requires the board to "give due notice of all hearings to the employee. . . and the carrier." 45 U.S.C. § 153 (First) (j). Plaintiff complains that the board did not give him notice of its December 10, 1998, hearing. However, plaintiff does not deny that his union gave him notice of this hearing by certified letter dated October 5, 1998. See Defendant's Exhibit 6. Moreover, as noted above, plaintiff appeared at the December 10 hearing. His argument regarding lack of notice is meritless.
Plaintiff's third argument is that he should not have been required to give a urine sample on his day off. The court does not believe that it has jurisdiction to consider this argument, as it does not fall within any of the statutory grounds for review. If the court could consider this argument, the court believes the board's decision is reasonable. The board was called upon to interpret a provision of a railroad handbook governing drug testing procedures. This handbook, the legal force of which plaintiff does not explain, states that an employee may not be required to undergo short-notice drug testing if he is "not on duty or subject to duty." The board found that plaintiff was "on duty or subject to duty" when he received the telephone call requiring him to report the next day for a short-notice drug test, and that this provision therefore was not violated. The court sees no reason to disagree with this interpretation.
Finally, plaintiff argues that he was not given notice of his right to have the urine sample split and re-tested. Once again, the court does not believe that it has jurisdiction to consider this argument, as it does not allege a violation of the Railway Labor Act or a violation by the board of its jurisdiction. Even if the court could reach this issue, the court sees no basis for disagreeing with the board's analysis. The argument is based on another provision of the railroad's drug testing procedures, which states that "[d]uring the MRO's [medical review officer's] initial contact with the employee, the MRO shall inform the employee of his/her right to have the split specimen tested at the employee's expense at one of the two DHHS-Certified laboratories to be selected by CSXT." Plaintiff alleges that he was so informed when he was told to report for a short notice drug test. However, plaintiff concedes that he was informed of this right, in writing, a few days later. See Defendant's Exhibit 2(F), Tr. 12. Moreover, defendant's Exhibit 8 shows that plaintiff in fact did request that "a re-confirmation test be performed. . . on [the] urine specimen . . . collected from him on Mar. 27, 1998," and that "the results were reconfirmed as positive for cocaine . . ." It is apparent that plaintiff knew of his right to have the urine sample retested; that he exercised that right; and that the presence of cocaine was confirmed upon retesting. There is no merit to plaintiff's argument that defendant failed to inform him of his right to have the test results confirmed.
For the reasons stated above,
IT IS ORDERED that defendant's motion for summary judgment is granted.