United States Court of Appeals, District of Columbia Circuit
November 8, 2016
from the United States District Court for the District of
Columbia (No. 1:14-cv-00678)
A. Cushane argued the cause and filed the briefs for
appellant. David P. Hiester entered an appearance.
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.
RANDOLPH, SENIOR CIRCUIT JUDGE.
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.
has its own police force. 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 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
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,  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.
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.
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.
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
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.
bargaining agreements commonly contain procedures for
resolving employee grievances, with arbitration as the final
step. 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).
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,  "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 ...