Because Public Law Board Reviewed All Evidence Submitted, Train Conductor Who Appealed Termination Was Not Denied Due Process

Category: Client Update
Date: Oct 20, 2014 01:44 PM

Robert Bradford was a conductor for Union Pacific Railroad Company.  In July 2006, he was terminated for failing a mandatory drug test.  However, in October 2006, after agreeing to seek treatment, Bradford was reinstated with the understanding that he would be terminated if he violated Union Pacific's drug and alcohol policy again within ten years. 

In September 2007, the Federal Railroad Administration subjected Bradford to a random drug and alcohol test.  He provided a urine sample (First Sample) that was "split" so that a second sample (Split Sample) could be saved for a possible re-test.  Hours later, Bradford slipped on the job and was subjected to a "for cause" drug and alcohol test (Second Sample).  The First Sample tested positive for amphetamines.  However, the Second Sample, collected the same day as the First Sample, tested negative for drugs and alcohol.  Based on the results of the First Sample, Union Pacific initiated disciplinary procedures against Bradford pursuant to the collective bargaining agreement (CBA).  At the end of September 2007, Bradford had a sample of his hair tested at an independent lab.  The hair tested negative for drugs, including amphetamines, which suggested that Bradford had not consumed amphetamines during the previous 90-120 days. 

Pursuant to the procedures of the CBA, a hearing was held before a Union Pacific hearing officer so that a record could be developed.  After the hearing began, the Split Sample was tested, and the results confirmed the presence of amphetamines in the First Sample.  In addition to admitting this evidence, the hearing officer admitted evidence of the negative test result from the Second Sample, but refused to admit the result of Bradford's independent hair test.  The hearing officer also refused to admit testimony from Bradford's expert witness, a forensic toxicologist.  Nevertheless, all of the excluded evidence was submitted to the superintendent, who made the disciplinary decision.  The superintendent sustained the charge against Bradford and terminated his employment.  Bradford appealed, but Union Pacific rejected the appeal.  The matter went before the Public Law Board (Board) for binding arbitration. 

The Board consists of one representative from the union, one representative from Union Pacific, and one neutral party.  Pursuant to an agreement, the Board can only accept evidence that the parties presented at the on-property hearing, though it can also request additional data from the parties.  The Board considered Bradford's objections to the original hearing, the results of the First, Split, and Second Samples, evidence related to Bradford's independent hair test, and a letter from the Medical Review Officer explaining that Bradford could have tested positive for amphetamines in the morning but not in the afternoon.  The Board found that Bradford violated the conditions of his return to employment and Union Pacific's drug and alcohol policy.

Bradford appealed to the district court, and both parties filed motions for summary judgment.  The district court found in favor of Union Pacific on all claims.  Bradford appealed, and the Court of Appeals for the Ninth Circuit affirmed.   

While Bradford argued that the original hearing violated his due process rights, the Court rejected this claim.  Due process rights apply in the context of government action, and Union Pacific is a private actor. 

The actions of the Board, however, can constitute government action.  Thus, the Court analyzed whether the arbitration conducted in front of the Board violated Bradford's due process rights.  Due process requires that an individual be provided, through sufficient procedures, the opportunity to be heard before he is deprived of life, liberty, or property.  Courts should consider three factors when evaluating whether there was adequate due process: (1) the private interest that will be affected by the official action; (2) the risk of erroneous deprivation of such interest through the procedures used and the probable value, if any, of additional or substitute procedures; and (3) the government's interest involved and the burdens that the additional or substitute procedure would entail. 

The Court focused on the second factor, and held that the procedures that the Board used did not present a meaningful risk of erroneous deprivation of Bradford's interest.  Under the Railway Labor Act, if an employee and carrier cannot reach an agreement, the dispute may be referred to the Board, with a full statement of the facts and all supporting data.  Bradford argued that the Board considered an incomplete record because the hearing officer excluded some evidence.  However, the Board received all of the evidence that was submitted for review, including the evidence that the hearing officer excluded.  Bradford also argued that the Board's record was incomplete because Union Pacific never produced the litigation packet (his medical records from the labs that tested his urine specimens) as required by statute.  However, the Board had the results of the Split Sample, the Second Sample, and Bradford's hair test.  Thus, the Board reasonably determined that it had enough information to render a decision, and it fulfilled its statutory requirement by considering all evidence provided. 

Bradford also argued that there were procedural deficiencies with the original hearing, which the Board failed to remedy.  However, the Court noted that the Board addressed Bradford's procedural complaints at the arbitration; it just did not resolve them in his favor.  The CBA requires that an employee not be disciplined without just and sufficient cause as determine by a fair and impartial investigation.  The Board's consideration of Bradford's procedural complaints demonstrates that it determined whether the hearing was fair and whether there was sufficient cause to discipline Bradford.  Thus, it acted within its jurisdiction when it declined to remedy the alleged procedural issues with the hearing.  The Court also held that the Board's decision not to remedy the alleged procedural issues was beyond the scope of its review because a court may not overturn an arbitrator's award, provided the arbitrator acted within its jurisdiction, even if there are serious errors of fact or law.  Thus, the Court affirmed the judgment in favor of Union Pacific.  


This case presented the unusual situation in which the employer was a private entity, but the review of the private entity's disciplinary decision was conducted by a government agency, the Public Law Board.  Public employees are often entitled to due process at all stages of the disciplinary process.  Due process is an amorphous concept, but essentially it is the idea that the government should allow citizens or employees the opportunity to be heard before a right is taken away.  Thus, agencies must have adequate disciplinary procedures in place that allow an employee the opportunity to be heard, and the policies must be followed. 

Bradford v. Union Pacific Railroad Co. (9th Cir. 2014) __ F.3d __ [2014 WL 4548742].

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