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National Railroad Passenger Corp. v. Fraternal Order of Police

United States Court of Appeals, District of Columbia Circuit

April 28, 2017

National Railroad Passenger Corporation, Appellee
v.
Fraternal Order of Police, Lodge 189 Labor Committee, Appellant

          Argued November 8, 2016

         Appeal from the United States District Court for the District of Columbia (No. 1:14-cv-00678)

          Thomas A. Cushane argued the cause and filed the briefs for appellant. David P. Hiester entered an appearance.

          Thomas E. Reinert Jr. argued the cause for appellee. With him on the brief was Matthew J. Sharbaugh.

          Before: Kavanaugh and Pillard, Circuit Judges, and Randolph, Senior Circuit Judge.

          OPINION

          RANDOLPH, SENIOR CIRCUIT JUDGE.

         This is an appeal from the judgment of the district court vacating an arbitrator's award. The arbitrator ruled that the National Railroad Passenger Corporation - "Amtrak" - must reinstate, with backpay and lost seniority, an employee Amtrak fired for misconduct. A union - the Fraternal Order of Police, Lodge 189 - brought the arbitration on the employee's behalf. The issue is whether "procedural limitations on the conduct of internal investigations contained in a collective bargaining agreement between Amtrak and the FOP" bind the Amtrak Office of Inspector General. Nat'l R.R. Passenger Corp. v. Fraternal Order of Police, Lodge 189, 142 F.Supp.3d 82, 83 (D.D.C. 2015).

         Amtrak has its own police force.[1] A provision in the Amtrak-FOP June 2010 collective bargaining agreement is entitled "Police Officers Bill of Rights." The preamble to this provision - Rule 50 of the agreement - states that the "Police Department has established the following procedures to govern the conduct and control of interrogations." Among the procedures are these: the investigator must inform the employee of his right to delay questioning in order to have a union representative present; if the employee is suspected of criminal activity, the investigator must give Miranda[2] warnings; and the investigator must record the interview "mechanically or by a stenographer." The fired employee, Sarah Bryant, was an officer in the Canine Unit of the Amtrak Police Department. In 2011, Amtrak's Office of Inspector General received an anonymous tip that Officer Bryant jointly owned a home in Maryland with her supervisor, Inspector William Parker, and that Parker had been giving Bryant a disproportionate number of assignments commanding a higher rate of pay. The Amtrak Police Department's Internal Affairs Unit received the same tip and opened an investigation. Amtrak police interviewed Bryant twice. Both times the police complied with Rule 50. In those two interviews, Bryant maintained that she was only Parker's tenant. The Police Department closed its investigation in June 2012 without recommending any sanctions.

         In September of the same year, an Inspector General investigator interviewed Bryant. The investigator did not record the interview or inform Bryant of her right to have a union representative present. The investigator gave Bryant some warnings, [3] but did not inform her that she had a right to counsel or that counsel would be appointed if she could not afford an attorney.

         The Inspector General's report concluded that Bryant had lied about being Parker's tenant during her earlier interview with Amtrak's Police Department. The deed on the house where she resided listed her as a co-owner and the loan documents listed her as a co-borrower on the property's second mortgage. The Inspector General also found that Bryant had falsified an affidavit claiming a tax exemption for first-time home buyers.

         After receiving the Inspector General's report, the Amtrak Police Department suspended Bryant, pending a disciplinary conference. At the conference, Bryant refused to resign. The Police Department terminated her on December 3, 2012.

         After Bryant unsuccessfully appealed the decision within Amtrak, she sought arbitration pursuant to the collective bargaining agreement's grievance procedure. On her behalf, the FOP claimed that she had been fired without just cause. Without reaching that claim, the arbitrator determined that Bryant should be reinstated because the Inspector General's investigator, when interviewing her, had not fully complied with the contract's Rule 50 procedures. Although this provision of the collective bargaining agreement does not mention the Amtrak Office of the Inspector General, and although the Amtrak Inspector General did not participate in the Amtrak-FOP contract negotiations and did not sign the agreement, the arbitrator concluded that Rule 50 bound the Inspector General. Rule 50, the arbitrator wrote, applies to "all bargaining unit member interrogations" and "does not exempt" the Inspector General.[4]

         Pursuant to the Railway Labor Act, Amtrak brought an action in district court, seeking an order setting aside the arbitrator's award. See Railway Labor Act, 45 U.S.C. § 153 First (q). The district court, relying on the Inspector General Act of 1978, 5 U.S.C. app. 3, §§ 1-13, and U.S. Department of Homeland Security v. FLRA (DHS), 751 F.3d 665, 672 (D.C. Cir. 2014), vacated the arbitrator's award because the Amtrak Inspector General could not legally be governed by Rule 50 of the contract. Nat'l R.R. Passenger Corp., 142 F.Supp.3d at 90.

         Collective bargaining agreements commonly contain procedures for resolving employee grievances, with arbitration as the final step.[5] The purpose is to settle labor-management disputes without resort to lockouts or work slowdowns or strikes. See 45 U.S.C. § 152. Although the Railway Labor Act gives district courts jurisdiction to review an arbitrator's award, id. § 153 First (q), the grounds on which a court may set aside an award are limited. One of the few such grounds is that the particular contractual provision at issue is contrary to "law or public policy." United Paperworkers Int'l Union v. Misco, Inc., 484 U.S. 29, 42 (1987). See also Hurd v. Hodge, 334 U.S. 24, 34-35 (1948); Nw. Airlines, Inc. v. Air Line Pilots Ass'n, Int'l, 808 F.2d 76, 84 (D.C. Cir. 1987); Union Pacific R.R. Co. v. United Transp. Union, 3 F.3d 255, 260-63 (8th Cir. 1993).[6]

         As to the legality of applying Rule 50 to the Amtrak Inspector General, circuit precedent is directly on point. The court's decision in DHS, on which the district court relied, held that under the Inspector General Act of 1978, [7] "public sector unions and agencies can neither add to nor subtract from the OIG's investigatory authority through collective bargaining." 751 F.3d at 671. The DHS court agreed with the Fourth Circuit's decision that "proposals concerning Inspector General-investigation procedures are not 'appropriately the subject of bargaining, ' because to allow such bargaining 'would impinge on the ...


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