Arbitrator’s Decision to Reinstate Fired Amtrak Cop Derailed

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By Kevin McGowan

An arbitrator’s decision to reinstate an Amtrak police officer fired after a railroad inspector general’s probe must be overturned because it violates public policy, a split federal appeals court in Washington, D.C., ruled ( Nat’l R.R. Passenger Corp. v. Fraternal Order of Police, Lodge 189 , 2017 BL 140803, D.C. Cir., No. 16-7004, 4/28/17 ).

The arbitrator ruled former police officer Sarah Bryant’s discharge couldn’t stand because an Amtrak inspector general investigator failed to follow union contract procedures that protect workers suspected of wrongdoing.

But the District of Columbia Circuit in a 2-1 decision said it violates public policy set out in the federal Inspector General Act to interpret a union contract to restrict an inspector general’s broad investigative authority.

Upholding the arbitrator’s award would conflict with federal law shielding the inspector general’s independence, Judge A. Raymond Randolph wrote in an April 28 opinion joined by Judge Brett M. Kavanaugh.

Judge Nina Pillard in dissent said under the Railway Labor Act, the scope of judicial review of arbitration awards is “among the narrowest known to the law.”

The court’s overturning an arbitration award that plausibly interpreted the union contract to reach inspector general investigations will only encourage future litigation by parties that lose in arbitration, the dissent warned.

The case revealed sharply diverging views about how free courts are to overturn arbitration awards that allegedly conflict with public policy.

Union Vows Further Appeal

The Fraternal Order of Police, which litigated Bryant’s case, believes it was “wrongly decided” by the appeals panel, said Thomas Cushane, a Vineland, N.J., lawyer who represented the union.

Pillard’s “forceful dissent underscores the need” for review by the full D.C. Circuit and “if necessary,” review in the U.S. Supreme Court, Cushane told Bloomberg BNA April 28.

“Allowing the panel’s decision to stand would undermine nearly a century of Railway Labor Act jurisprudence and the FOP intends to do what it can to prevent that,” Cushane said.

Attorneys representing Amtrak weren’t immediately available for comment April 28.

Contract’s Procedural Safeguards

The collective bargaining agreement between Amtrak and a Fraternal Order of Police local included a section dubbed the “Police Officers Bill of Rights,” also referred to as Rule 50.

Among other procedural protections, it said an Amtrak investigator interrogating an employee suspected of wrongdoing must record the interview and inform the employee of her right to have a union representative present.

An Amtrak Office of Inspector General investigator who interrogated Bryant neither recorded the interview with her nor advised her about her right to union representation. But Amtrak terminated Bryant based on the investigator’s report that concluded she had engaged in a firing offense.

The arbitrator ruled Bryant must be reinstated because the inspector general’s investigator hadn’t complied with the union contract’s procedural protections.

A federal district court in Washington set aside the arbitrator’s award. The Amtrak inspector general couldn’t legally be governed by Rule 50 of the contract, the district court said.

Controlling Precedent Cited

On appeal by the FOP, the D.C. Circuit affirmed the lower court’s decision to vacate the arbitration award.

“Circuit precedent is directly on point,” Randolph wrote. The appeals court in 2014 held that under the Inspector General Act, public sector unions and agencies in a collective bargaining agreement “can neither add to nor subtract” from the Office of Inspector General’s investigative authority.

The D.C. Circuit in the prior case said contract proposals concerning the inspector general’s investigation procedures aren’t appropriate subjects of bargaining because it “would impinge on the statutory independence” of the inspector general’s office.

The arbitrator’s award reinstating Bryant because of the inspector general’s procedural missteps properly was vacated as contrary to the public policy set out in the Inspector General Act, the D.C. Circuit said.

Court Oversteps Bounds, Dissent Says

The majority overstepped its bounds under the Railway Labor Act, Pillard wrote in dissent.

Congress intended arbitration to provide “swift, fair and final dispute resolution” of railroad workplace disputes. Courts under the Railway Labor Act can overturn arbitration awards only if the arbitrator lacked jurisdiction, committed procedural errors or engaged in “fraud or corruption,” the dissent said.

The majority invoked the rarely used “public policy” exception to limited judicial review to justify its ruling, Pillard wrote. “This case does not come close to meriting such an extraordinary step,” she said.

Morgan Lewis & Bockius LLP represented Amtrak.

To contact the reporter on this story: Kevin McGowan in Washington at kmcgowan@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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