Opinion
Civil Action No. 3:96CV-427-S
November 23, 1999.
MEMORANDUM OPINION
This matter is before the court on remand from the United States Court of Appeals for the Sixth Circuit. This matter arose from the discharge of the plaintiff, Courtney Edwards ("Edwards"), from his employment with United Parcel Service, Inc. ("UPS"). The Court of Appeals succinctly summarized the incidents leading up to Edwards' termination, the filing of his grievance under the IPA/UPS Collective Bargaining Agreement ("CBA"), and its resolution by an arbitration board which will be quoted verbatim here:
Edwards was employed as a pilot for UPS for about six years. Before his termination, he was randomly selected for a Department of Transportation/Federal Aviation Administration (DOT/FAA) urine drug test. According to the collective bargaining agreement between Edwards's union and UPS, the employee has the right to request that his urine sample be split into two separate specimens. Edwards made the request. The laboratory that conducts the tests found a chemical called glutaraldehyde in one of Edwards's urine specimen containers during the initial screening process. Glutaraldehyde is an adulterating agent not found naturally in urine that masks the detection of drugs in a urine sample. It is found in certain products, including UrinAid, which is marketed for the purpose of producing false negative results in drug testing. Because of the presence of the adulterant in the urine specimen, it was not possible to determine whether there were drugs in the specimen. DOT regulations prohibit the lab from performing a more thorough test, the gas chromatography test, for example, if drugs are not found in the initial screening process. Because glutaraldehyde does not appear naturally in urine, UPS presumed that Edwards intentionally adulterated his urine sample to avoid a positive finding of drugs in his urine. It considered this action to be a refusal to submit to drug testing, and, on that ground, terminated Edwards's employment. Thereafter, Edwards filed a grievance under the collective bargaining agreement.
When the grievance procedure failed to resolve the matter, Edwards took the matter to an arbitration board, which consisted of two union members, two company members, and a neutral member, who, as a practical matter, becomes the arbitrator. During the initial hearings, Edwards's claim was that the testing procedures by the lab were inaccurate. Accordingly, the arbitrator ordered the second half of the split sample of urine to be tested for glutaraldehyde by another lab. This was accomplished, and the other half of the sample also revealed the adulterant in the urine specimen.
Subsequently, a third hearing was held, and the arbitration board found that Edwards had intentionally adulterated his urine and accordingly, upheld his dismissal. The award, however, was signed only by the neutral arbitrator, and not by the other board members.
April 13, 1999 Opinion of the Sixth Circuit, pgs. 2-3.
Edwards filed suit against UPS, his union, and the laboratory which performed the initial urine test. Three of Edwards' claims against UPS came before this court on cross-motions for judgment in the case: (1) a claim against UPS for breach of the collective bargaining agreement; (2) a claim against UPS for employment discrimination; and (3) a petition to set aside the arbitration board's decision upholding Edwards' termination. Judgment was granted in favor of UPS with respect to all three claims. Edwards appealed the court's dismissal of his claim seeking to set aside the decision of the arbitration board.
The claims against the other defendants, and the breach of contract and employment discrimination claims against UPS were otherwise disposed of. They were not raised on appeal, and are not at issue here.
The Court of Appeals upheld this court's decision that we lacked jurisdiction to set aside the award based upon Edwards' allegation of a failure by the board to comply with the three signature requirement of § 158 of the Railroad Labor Act ("RLA"). The Court of Appeals then remanded the action to this court for an amplification of the reasons for this court's additional finding that the other grounds raised by Edwards for vacation of the award were without merit. In accordance with the mandate of the Sixth Circuit, we will more fully explain our basis for upholding the arbitration decision.
There are no genuine issues of material fact in dispute with respect to the proceedings before the arbitration board. Therefore, summary judgment is appropriate on the parties' cross-motions, and we conclude that UPS is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
As we noted in our opinion of August 15, 1997, the CBA between UPS and the union provided for two separate bodies to hear grievances. A "System Board of Adjustment" was the body before which most grievances were initially heard. A System Board of Adjustment consisted of four members: two selected by the company and two by the union. In the event of a deadlock among this four-member board, Article 7(E)(5) of the CBA called for the institution of a five-member "Arbitration System Board of Adjustment." Article 7(E)(6) contained provisions for selecting a tie-breaking panel member, called the Arbitrator. In the case of a grievance arising from a discharge from employment, Article 7(C)(5) allowed the grievant to bypass the four-member board, and proceed directly to the Arbitration System Board of Adjustment. Edwards' grievance took this route, proceeding straight to the five-member board (hereinafter referred to as "the board").
On a petition for review of a decision of an arbitration board, the grounds set out in the RLA, § 153 First (q) are applicable. Hunt v. Northwest Airlines, 600 F.2d 176, 178 (8th Cir.), cert. denied, 444 U.S. 946, 100 S.Ct. 308, 62 L.Ed.2d 315 (1979). The scope of this court's review is limited to three issues: (1) Whether the board failed to comply with the requirements of the RLA; (2) Whether the board exceeded its jurisdiction; and (3) Whether there was fraud or corruption by the board. 45 U.S.C. § 153 First (q). The court finds that none of these bases upon which the court may overturn an arbitration board decision has been established in this case.
The dispute was presented to a five-member panel in accordance with the CBA requirements, and a substantial amount of evidence was submitted to them. The proceedings, which included three hearings, were continued over the course of sixteen months, and included a period of time during which Bottle B of the split urine sample was tested by another laboratory. The scheduling of the hearings, and delays for a variety of reasons, were agreed to by UPS and the union who represented Edwards at the time. Edwards voiced no objection himself at the time. Edwards has come forward with no evidence to refute the affidavit of William Beem, offered by UPS, that the scheduling of hearing dates, the substitution of panel members, and the delays inherent in accommodating witnesses' and panel members' schedules were done with the agreement of Edwards' legal representative, the union. Such delays do not establish a due process violation, as Edwards suggests, inasmuch as he has not denied that he was afforded the opportunity to present each of the witnesses he offered, lay and expert, and the opportunity to make a fulsome presentation of his case. We find that Edwards was provided "an opportunity . . . at a meaningful time and in a meaningful manner [citations omitted] for a hearing appropriate to the nature of the case." Logan v. Zimmerman Brush Co., 455 U.S. 422, 437, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982). See also, Shafii v. British Airways, 872 F. Supp. 1178, 1180, n. 2 (E.D.N.Y. 1995); Builder's Supply Co. v. Teamsters Local 123, 703 F.2d 324 (8th Cir. 1983).
Edwards claims that the passage of time impaired his ability to present reliable testimony of witnesses, yet he has not offered any explanation as to what testimony he would have presented which would have differed had it been presented at an earlier time. He did, in fact, present lay witness testimony regarding his contention that he possessed and used Verucasep prior to giving his urine sample. The board found that her testimony on this point was supportive of his position. While there were a number of discrepancies between her testimony and that of Edwards regarding other details, nothing in the testimony of either refuted the critical fact — the high concentration of gluteraldehyde in the urine sample. Edwards cites a case in support of his theory of diminished witness reliability, Jones v. St. Louis — San Francisco Railway Co., 728 F.2d 257 (6th Cir. 1984). That case involved a railway accident where the question was whether the employee had been negligent or reckless in operating a train, a matter in which the freshness of eye witness testimony was crucial. We find the case to be inapposite to the matter here.
Edwards raised the spectre of fraud and collusion between the board members in his complaint. He has not pursued that suggestion in his summary judgment motion nor supported the contention with any facts. We therefore conclude that summary judgment in favor of UPS is appropriate as to that basis for vacation of the arbitration award.
Edwards was discharged for refusing to submit to a random drug test for which he was selected. Edwards was found to have adulterated his urine specimen with the chemical glutaraldehyde, thus making the detection of any of the five illegal drugs impossible in the initial screening of the sample. The arbitration board upheld UPS' position that the use of an additive to thwart the testing process was no less a refusal to submit to a drug test than if the employee had said "no" when he requested to provide a sample. The CBA permitted discharge from employment for refusing to submit to an FAA required drug test. Letter of Agreement #5, ¶ 10 (Hereinafter the Letter Agreement #5 will be referred to as "the agreement.").
We are limited in our review of the arbitration decision to ascertaining whether it is "derived in some rational way from the collective bargaining agreement." Detroit Coil Co. v. International Association of Machinists Aerospace Workers, 594 F.2d 575, 579 (6th Cir.), cert. denied, 444 U.S. 840 (1979). The Sixth Circuit has found that this exceedingly deferential standard is met where "it cannot be said that the Board's interpretation was wholly baseless and completely without reason." United Transportation Union v. CSX Transportation Inc., 902 F.2d 36, 1990 WL 52381 (6th Cir. 1990)(unpubl.); Paperworkers v. Misco, 484 U.S. 29, 38 (1987).
We hold that the equation of the chemical blockage of a drug screening with a refusal to test cannot be said to be wholly baseless and without reason and therefore Edwards' discharge was rationally derived from the terms of the CBA.
Edwards has urged that the board's ruling impermissibly altered the CBA by (1) approving the lab's testing for glutaraldehyde, and (2) upholding his discharge on the basis of adulteration of his urine sample, or on the basis of the presence of a substance in his urine other than one of the five designated illegal drugs. The court concludes that neither of these contentions has merit.
First, the CBA was not altered by the board's interpretation that testing for glutaraldehyde is permissible under its terms. The agreement stated that "UPS may terminate any crewmember for just cause for refusing to submit to an FAA required drug test or failing a drug test provided that the testing was done in conformity with applicable DOT/FAA regulations, the UPS Drug Testing Program, and this Letter of Agreement." Edwards acknowledges that drug testing ordered under the Program must be done in conformity with DOT/FAA regulations. Under those regulations, Appendix I to Part 121 — Drug Testing Program, II. Definitions, it states, in pertinent part, " Refusal to submit means that an individual . . . engaged in conduct that clearly obstructed the testing process." Since (1) the DOT/FAA regulations designate obstruction of the testing process as a means by which an employee refuses to submit to the required test, and (2) the CBA required that the testing be done in accordance with those federal regulations, the lab's identification of the presence of glutaraldehyde, an adulterant which does not occur naturally in urine and which masks the presence of illegal drugs, was not beyond the scope of the CBA. Additionally, under the UPS Drug Testing Program, Section III.A. Screening Test, which is incorporated into the CBA, it states "These substances and test levels are subject to change by the Department of Health and Human Services as advances in technology or other considerations warrant." The December 3, 1993 letter from Drug Enforcement and Program Compliance, U.S. Department of Transportation, to the DHHS Certified Drug Testing Laboratories Medical Review Officers, addressing the use of commercial urine specimen adulterants such as UrinAid and Mary Jane SuperClean 13, clarified that the regulations permitted testing for the presence of adulterants which preclude the detection of the five illegal drugs. There was therefore no amendment to the terms of the CBA, as the lab's screening process was subject to change in conjunction with technological advances or other considerations.
This court's ruling is not to be construed as containing any opinion with regard to the legitimacy of adulterant testing as a laboratory science, nor with respect to the evidentiary value of such test results. This court's review is limited to the narrow question of whether the screening test for adulterants is beyond the scope of the CBA. Our analysis is limited by those parameters.
Edwards urges that the CBA required that his initial sample be discarded and a second specimen be collected from him in the event of suspected specimen adulteration. The provision to which Edwards refers applies only to specimen evaluation at the test site, and is thus inapplicable to this situation. The suspicion of adulteration in this instance occurred at the lab long after the specimen had been given. There was no visible evidence of adulteration at the lab site, thus there was no reason for a second sample to be obtained.
Second, Edwards' contention that his discharge for testing positive for the presence of glutaraldehyde in his urine, a substance not among the five listed illegal substances, impermissibly exceeded the bounds of the CBA. While the lab's screening test in fact identified the presence of a substance other than those listed, Edwards was discharged for the conduct which the presence of that substance evidenced. That is, he was discharged for the deliberate adulteration of his urine sample in order to obstruct the testing process. It was the obstruction of the process, not the presence of the substance per se, which constituted the offense for which he was disciplined under the CBA.
Edwards maintains that he could not be discharged for using a substance which is designed to mask the presence of illegal drugs unless an illegal drug were in fact shown to have been present in his urine. Again, this argument is without merit for the reason that his discharge was not based upon the presence of one of the five illegal drugs, but rather for his refusal to submit to a test of his urine for their presence.
The board's finding that the adulteration of the sample was deliberate does not impermissibly add the requirement of willfulness to the CBA's provisions on discharge. Under the CBA, refusing to submit to an FAA required drug test constituted grounds for discharge. The regulations state that engaging in conduct that clearly obstructed the testing process constitutes refusal to submit to testing. The regulation does not prohibit the presence of an adulterating substance in the urine. Rather, it must be shown that the employee engaged in conduct that clearly obstructed the process. While the term "deliberate" is not used either in the regulation or in the CBA, the board chose to interpret the CBA as requiring a deliberate act designed to thwart the testing process in order for the company to discharge an employee for refusing to submit to the test. This is clearly a rationally derived interpretation of the CBA, erring on the side of a more stringent standard to be met by the company. The requirement that the evidence show deliberate adulteration of the sample ensures that an employee whose urine sample is infused with an adulterant through inadvertent means would not be subject to discharge under the refusal to submit provision.
Finally, the board did not act beyond its jurisdiction by ordering that Bottle B of the split sample be tested fro the presence of glutaraldehyde. Edwards made the decision to have his urine sample split at the time the sample was given. Thus bottles A and B were initially made at the option of Edwards under the split sample procedure set out in the CBA. The board determined that the agreement gave the employee the power to require testing of a split sample, but it did not give him the power to preclude Bottle B testing once the election had been made to have the sample split. The board determined that the agreement did not permit the employee to prohibit testing of the split sample, but rather afforded him the opportunity to require split sample testing himself in the event of a positive result. The board thus reasoned that the agreement did not prohibit testing needed to make an accurate determination in the drug detection process. We cannot say that this interpretation is wholly baseless or without reason. The CBA empowered the board to hear "such witnesses and evidence as the Arbitration Board shall in its discretion permit." CBA Article 7(E)(5)(d). Therefore, it can hardly be said that the board acted outside its jurisdiction in ordering a test of Bottle B at another lab selected by the parties. Edwards had requested that his sample be split, and the agreement did not otherwise preclude such an order.
For the reasons set forth hereinabove, and in accordance with the mandate of the United States Court of Appeals for the Sixth Circuit, the court hereby orders that this memorandum opinion be entered in support of the October 16, 1997 grant of summary judgment in favor of United Parcel Service, Co. and the dismissal of the action.
This matter is REFERRED to the panel of the United States Court of Appeals for the Sixth Circuit for further proceedings in accordance with its earlier opinion and order.