Petition for Writ of Certiorari — Moore v. Consolidated Rail Corp.

87 = | G wf 7 \) Supreme Court, US.

FILE @

JUN 3 1988

eT

JOSEPH F. SPANIOL, JR.

CLERK

Pte:

In The

Supreme Court of the United States

October Term, 1987

DONALD H. MOORE,

Petitioner,

CONSOLIDATED RAIL CORPORATION,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Donaup L. RetHart

LAUCKS & MONROE

29 North Duke Street

York, Pennsylvania 17401

Tel: (717) 848-4900

Attorneys for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

or call collect (402) 342-2831

QUESTIONS PRESENTED

1. WHETHER THE AFFIRMATIONS OF THE

THIRD CIRCUIT COURT OF APPEALS AND

THE MIDDLE DISTRICT OF A FINDING BY A

SPECIAL BOARD OF ADJUSTMENT DENYING

BACK PAY AND OTHER BENEFITS, DESPITE

A FINDING THAT THE URINE TEST RELIED

UPON WAS NOT COMPETENT EVIDENCE BE-

CAUSE CONSOLIDATED RAIL CORPORATION

FAILED TO PRESENT ADEQUATE EVIDENCE

AS TO THE CHAIN OF CUSTODY OF THE URINE

SAMPLE RENDERING THE FINDING WHOLLY

BASELESS AND WITHOUT REASON, ARE IN

ERROR.

WHETHER ANY INDIVIDUAL’S FOURTH

AMENDMENT RIGHT TO PRIVACY NECESSI-

TATES THE USE OF CAREFULLY SAFEGUARD-

ED DRUG TESTING PROCEDURES AS FOUND

IN THE FEDERAL RULES OF EVIDENCE.

PARTIES BELOW

Petitioner/Appellant/Petitioner Below

Donald H. Moore

Respondents/Appellees/Respondents Below

Consolidated Rail Corporation

- Ry

ree om

ili

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ciaoamuaietae i

THE PARTIES BELOW ... cdateaocamiekasinas ii

TABLE OF CONTENTS iil

TABLE OF CITATIONS ... Vv

OPINIONS BELOW 2

JURISDICTION ... . wikttiniemiticaienaibanaaase 2

STATUTE INVOLVED 2

STATEMENT OF THE CASE .. secnamlaeiias 3

REASONS FOR GRANTING PETITION

A.

B.

THE DECISION BELOW IS CONTRARY

TO THE STATUTE, 42 U.S.C. SECTION 153

(FIRST), IN THAT THE FINDING OF

THE SPECIAL BOARD OF ADJUST-

MENT TO DENY BACK PAY AND OTH-

ER BENEFITS, RELYING ON A URINE

TEST FOUND NOT TO BE COMPETENT

EVIDENCE BECAUSE OF A LACK OF

ADEQUATE EVIDENCE AS TO THE

CHAIN OF COMMAND, IS WHOLLY

BASELESS AND WITHOUT REASON,

MAKING FEDERAL JUDICIAL REVIEW

PROPER AND JUST ....

LOW SPECIAL BOARDS OF ADJUST-

MENT TO RULE ON MATTERS WITH

NO COMPETENT EVIDENCE AS A BA-

SIS FOR THE DECISION AND TO AL-

LOW THAT DECISION TO STAND AB-

SOLUTE WITH NO REVIEW AVAIL-

ABLE TO THE PARTIES INVOLVED

CONCLUSION

iv

TABLE OF AUTHORITIES

Cases PAGE

Brotherhood of Locomotive Engineers v. Burling-

ton Railroad Company, 838 I°.2d 1087 (9th Cir.

1988 ) . Sra ANS ON Rare Ae «nen cs Pees RRO wilt Tae

Grimes v. Louisville and Nashville R. Co., 583 F.

Supp. 642 (S.D. Indiana, 1984) .___. 11

Gunther v. San Diego and Arizona Eastern Rail-

way Co., 382 U.S. 257 (1965) ats 11

Rinker v. Penn Central Transportation Co., 350

. emp, BET CURE BA, BG niceties 11

Zeviar v. Local 2747 Airline, etc., Employees, 733

ee RE Re | ren 10

EDERAL STATUTES

- Bik The 7" g : ee SE ee ee 2

eee ee OS OS: | eS

In The

Supreme Court of the United States

October Term, 1987

DONALD H. MOORE,

Petitioner,

CONSOLIDATED RAIL CORPORATION,

Respondent.

O some

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Donald H. Moore seeks a Writ of Certiorari to re-

view the decision of the United States Court of Appeals

for the Third Cireuit in Case No. 87-5739, Moore v. Con-

solidated Rail Corporation, unreported (3rd Cir. 1988).

)

OPINIONS BELOW

The Opinion of the United States Court of Appeals

for the Third Cireuit is unreported, it is reproduced in

Petitioner’s Appendix (‘*P. App.’’) at 1A through 6A.

The original Memorandum and Order of the United

States District Court for the Middle District of Pennsyl-

vania dismissing Petition for review of an award made

by Special Board of Adjustment is unreported; it is

reproduced in P. App. at 9A through 14A. The decision

of the Special Board of Adjustment finding the urine

test results unreliable and reinstating Petitioner without

back pay is reproduced at P. App. 15A through 20A.

JURISDICTION

On March 11, 1988, the Third Cireuit Court entered

judgment affirming the District Court’s dismissal of the

Petition for review of the award of the Special Board of

Adjustment. Based on the Third Cireuit’s entry of judg-

ment, this Court’s jurisdiction is invoked pursuant to

298 U.S.C. Section 1254(1) (1982).

STATUTE INVOLVED

42 U.S.C. Section 153 (First).

3

STATEMENT OF THE CASE

Donald H. Moore has been, with the exception of one

interruption due to the improper firing, an employee of

Consolidated Rail Corporation from 1971 until the present.

Consolidated Rail Corporation is a Railway Carrier as

defined by the Railway Labor Aet.

In his years of service for Consolidated Rail Corpora-

tion, Donald H. Moore had a good reeord. Prior to July

of 1985, there was not a scintilla of evidence Donald H.

Moore ever engaged in the consumption of illegal drugs.

In July of 1985, an anonymous phone caller claimed that

Donald H. Moore was a drug user. Consolidated Rail

Corporation forced Donald H. Moore to submit to a urine

test on July 25, 1985, based solely upon this anonymous

phone call,

Consolidated Rail Corporation promptly lost the

sample and then discovered the sample. Despite the fact

that the sample was lost, Consolidated Rail Corporation

attempted to have the sample analyzed. The sample was

found to be of insufficient confirming value.

Consolidated Rail Corporation then forced Donald H.

Moore to submit to a second test on August 2, 1985. Don-

ald H. Moore was then fired. Donald H. Moore appealed

this decision and hearing was held on September 6, 1985

and September 19, 1985. These hearings were before a

Hearing Officer as required by the Railway Labor Act.

After the hearings, the Hearing Officer upheld the de-

cision to terminate Donald H. Moore. Donald H. Moore

filed a timely Appeal and a review of this decision was

conducted by the Special Board of Adjustment. Donald

H. Moore demanded, on Appeal, removal of the discipline

and payment for all time lost, including reasonable com-

pensation for mental and physical distress, traveler’s bene

fits, dental plan, Title VII allowance, vacation rights and

retirement benefits.

On December 22, 1986, the Special Board of Adjust-

ment overturned the decision of the Hearing Officer and

held that Donald H. Moore was to be reinstated. A copy

of the findings of the Special Board of Adjustment ts set

forth at P. App. 15a through 20a.

The Special Board of Adjustment held that Donald

H. Moore had a ‘‘good prior record’’ (P. App. 15a) in his

15 years as a locomotive engineer and that there was not

competent indication that Donald H. Moore had engaged

in the conduct of which he was accused prior to the ine

dent which led to his wrongful dismissal.

The Special Board of Adjustment further held that

competent evidence was not presented supporting Donald

H. Moore’s dismissal and that, therefore, Donald H. Moore

should be reinstated.

The Special Board of Adjustment found:

‘« | this Board would not have reinstated claimant

_ if the record had established a reasonable doubt

that claimant could be relied upon as an engineer.”’

(P. App. 19a).

The decision of the Board mentions two drug tests

which were used to determine whether Donald H. Moore

used marijuana. The first test was of July 25, 1985, which

was lost and then found to be of insufficient confirming

value. A second sample was taken on August 2, 1985. This

sample and subsequent analysis of the sample was held to

be irrelevant by the Board.

The Board noted that the rights of individual em

ployees must be protected when it comes to handling of

urine samples. The Board found that there was ‘‘. . . no

clear evidence as to the chain of possession’’, (P. App.

18a). As a result, the Board ordered that Donald H.

Moore be reinstated as an employee.

Article G-C-9 of the Collective Bargaining Agreement

provides that where discipline is expunged, the employee

is to be paid for lost wages (P. App. 2la through 23a).

Despite the aforementioned holdings of the Board as to

the urine samples and the Collective Bargaining Agree-

ment, the Board ordered that Donald H. Moore was to be

reinstated without back pay. No explanation was pro

vided for the Board’s decision to deny back pay.

On June 30, 1987, this action was commenced by Don-

ald H. Moore’s Petition for Review and Enforcement un-

der Section 3 (First) of the Railway Labor Act. Consoli-

dated Rail Corporation was the named Respondent.

Donald H. Moore was discharged by Consolidated

Rail Corporation on September 24, 1985, for the alleged

use of marijuana. Pursuant to the Railway Labor <Aet,

Donald H. Moore challenged this decision at a hearing

before a Hearing Officer. The Hearing Officer decided

in favor of Consolidated Rail Corporation and Donald H.

Moore appealed to the Special Board of Adjustment. The

6

Special Board of Adjustment rendered a decision rein-

stating Donald H. Moore, but denying back pay as well

as other benefits. (P. App. 15a through 20a). Donald H.

Moore appealed this decision to the United States District

Court by filing the aforementioned Petition.

On August 17, 1987, Consolidated Rail Corporation

filed a Motion to Dismiss the Petition. On September 25,

1987, the Honorable William Caldwell of the Middle Dis-

trict Court of Pennsylvania issued a Memorandum and

Order granting Consolidated Rail Corporation’s Motion

to Dismiss the Petition.

REASONS FOR GRANTING THE PETITION

The decision of the Third Circuit is in direct conflict

with the provisions of the controlling statute, 42 U.S.C.

Section 153(q) (First). The Petition of review of the

findings of the Special Board of Adjustment was proper

in that the findings of the Board were wholly baseless

and without reason. In addition it is completely against

the ideals of the Constitution of the United States to allow

a judicial entry to exist and concurrently exercise legisla-

tive and executive powers as this Special Board has done,

particularly in an area of such sensitivity as drug test-

ing, requiring special attention and review procedures to

ensure the protection of employees’ rights.

A. THE DECISION BELOW IS CONTRARY TO

THE STATUTE, 42 U.S.C. SECTION 153 (FIRST), IN

THAT THE FINDING OF THE SPECIAL BOARD OF

ADJUSTMENT TO DENY BACK PAY AND OTHER

BENEFITS, RELYING ON A URINE TEST FOUND

NOT TO BE COMPETENT EVIDENCE BECAUSE OF A

LACK OF ADEQUATE EVIDENCE AS TO THE CHAIN

OF COMMAND, IS WHOLLY BASELESS AND WITH-

OUT REASON, MAKING FEDERAL JUDICIAL RE-

VIEW PROPER AND JUST.

Since Subsection (q) of U.S.C. Section 153 (First)

provides that the Board’s decision forms the basis for

Appellate review, the language of the decision is obviously

critical. The Board noted that Donald H. Moore had a

‘‘reasonably good record’’ (P. App. 15a), and that there

was apparently no suspicions that Donald H. Moore used

drugs until a single, anonymous phone caller made this

serious accusation. (P. App. 16a).

As a result of this anonymous phone eall, Consolidated

Rail Corporation forced Donald H. Moore to submit to a

urine test on July 25, 1985. This test, however, was lost

and subsequently reappeared and was determined to be

insufficient confirming value. (P. App. 16a). Consoli-

dated Rail Corporation proceeded to require Donald H.

Moore to submit to a second urine test which he complied

with on August 2, 1985. (P. App. 16a). The second test

was found to be positive. (P. App. 17a). Upon review,

the Board stated that ‘‘no clear evidence as to the chain

of possession during transit’’ was presented as to this

second test. (P. App. 18a).

The Board correctly noted that:

‘«. . . the gravity of the drug problem does not re-

lieve any employer trom making certain that the engi-

8

neer is accorded all the procedural protection that

elementary principles of due process, fair play and

common sense require. Mere suspicion, conjecture

and hearsay may never be substituted for competent

proof.’’ (P. App. 17a).

The Board scrutinized the evidence and properly held

that the positive reading from the August 2, 1985 test

would not support the firing because of the lack of evi-

dence as to chain of custody.

Chain of possession or custody is not a trivial matter

which the courts may wink at or choose to overlook when

convenient. The Board was absolutely correct in over-

turning the firing on this critical ground. The award of

the Board, however, provides that reinstatement is to occur

without back pay. (P. App. 19a). There is no explanation

as to the reasoning for the denial of back pay.

The Middle District Court attempted to provide this

missing explanation. The Court noted on Page 4 of its

Memorandum that:

‘*A fair reading of the decision indicates that, while

it is believed that the deficiency in the record did not

justify discharge, the record was insufficient to jus-

tify a suspension without pay for having used mari-

juana.’’ (P. App. 12a).

The citation from Page 4, however, is not a fair read-

ing of the Board’s decision. The Board’s decision was

that the second test was rendered unreliable by the failure

to provide adequate testimony as to the critical issue of

chain of custody. The result of this decision was quite

simply: no evidence to prove the use of marijuana.

The Middle District’s Memorandum, therefore, is

illogical on this critical ground. If the one piece of evi-

dence is entirely tainted on the issue of dismissal, must it

not likewise be entirely tainted on the interrelated issue to

back pay? Consolidated Rail Corporation has argued that

the Board must have used this tainted evidence in order

to reduce the discipline. This argument, which was adopt-

ed by the Middle District Court, has no basis in law or in

the Board’s Order.

In a very recent Ninth Circuit decision, Brotherhood

of Locomotwe Engineers v. Burlington Northern Rail-

road Company, 838 F.2d 1087 (9th Cir. 1988), it was held

that the Fourth Amendment right to privacy is paralleled

by a right of employees to an expectation of privacy be-

tween the employee and employer. An employee has the

right to certain expectations concerning an employer’s in-

vasion of this privacy.

Just as justice requires that the Fourth Amendment

has parallels in non-governmental employer/employee re-

lationships, so, too, does it require that there is a uni-

formity in the application of the rules of evidence between

administrative proceedings and state and federal adjudi-

eatory proceedings. A person’s rights which require pro-

tection in the court system need no less protection in the

setting of an administrative hearing when the decision

rendered can have just as far reaching and damaging

effects as in the formal court environment as seen here.

Consolidated Rail Corporation did not raise any ob-

jections to the Board’s clear finding that there was in-

sufficient proof as to chain of custody. This finding was

binding on the Middle District Court. The Middle Dis-

trict ignored the importance of the Board’s evidentiary

finding. The purpose of proof of chain of custody is to

es ts

10

show that the sample was not altered or that the sample

was from Donald Moore. If Consolidated Rail Corpora-

tion could not prove that the sample was not altered or

that the sample was from Donald Moore, the results of the

analysis of the sample are irrelevant. The Middle Dis-

trict Court erred by even mentioning the results of the

test, as a basis for a decision.

Paragraph 15 of the Petition alleges that denial of

back pay is contrary to the Collective Bargaining Agree-

ment and that the Special Board of Adjustment exceeded

its authority and was without jurisdiction under the Rail-

way Labor Act to deny back pay. Article G-C-9(h) of

the Collective Bargaining Agreement specifically provided

that where discipline is expunged, the engineer shall be

paid for such wage losses incurred. (P. App. 21a through

23a).

In a case discussing denial of back pay under the

Railway Labor Act, it has been held that it is proper to

determine whether the Collective Bargaining Agreement

gave the Special Board of Adjustment the authority to

make its award as it did. Zeviar v. Local 2747 Airline, etc.,

Employees, 733 F.2d 556, 559 (8th Cir. 1984). In the

matter confronting this Court, the Collective Bargaining

Agreement has spoken as to this issue. The Board may

not simply ignore the language in Article G-C-9(h).

It has been held that where the award drew its es-

sence from the Collective Bargaining Agreement, the Court

may not review the merits of the award. Id. Conversely,

it must be true that where the award issued ignores the

Collective Bargaining Agreement, this Court should and

must review the decision.

11

As stated previously, Subsection (q) of Section 153

(First) permits review of Special Board of Adjustment

decisions which fail to confine to matters within the scope

of its jurisdiction. Donald H. Moore has met this burden.

Denial of back pay is clearly outside the Board’s juris-

diction that the Board ignored the Collective Bargaining

Agreement in reaching its decision.

Furthermore, awards of the Special Board of Adjust-

ment are subject to review if they are wholly baseless and

completely without reason. In this case, it is alleged that

Donald H. Moore was exonerated of the charges. He was

punished nevertheless. This is clearly improper. If the

Board of Adjustments is to punish Donald H. Moore as it

did, some reasonable basis must exist and must be stated

in the Order.

This separate ground for review was established by

the United States Supreme Court in Gunther v. San Dicyo

and Arizona Eastern Ratlway Co., 382 U.S. 257, 86 S. Ct.

368, 15 L.Ed.2d 308 (1965). See also Rinker v. Penn Cen-

tral Transportation Co., 350 F. Supp. 217, 219 (E.D. Pa.

1972). It has also been held that the Board’s decision is

outside its jurisdiction if the decision is without founda-

tion and reason in fact or is wholly baseless and without

reason. Grimes v. Louisville and Nashville R. Co., 583

F. Supp. 642, 641 (S.D. Indiana 1984).

B. IT IS AGAINST PUBLIC POLICY TO ALLOW

SPECIAL BOARDS OF ADJUSTMENT TO RULE ON

MATTERS AND NO COMPETENT EVIDENCE AS A

BASIS FOR THE DECISION AND TO ALLOW THAT

DECISION TO STAND ABSOLUTE WITH NO REVIEW

AVAILABLE TO THE PARTIES INVOLVED.

The Special Board of Adjustment was created to solve

minor disputes arising out of interpretation or applica-

tion of an existing agreement. Brotherhood of Locomo-

tive Engineers v. Burlington Northern Railroad Com-

pany, 838 F.2d 1087 (9th Cir. 1988). When such a board

needs to make decisions on matters as sensitive and im-

portant as the propriety and competency of particular

drug testing strict compliance with the rules of evidence

is proper and just. Issues such as drug testing involve

parallel rights of the fundamental constitutional right to

privacy and as such demands a particularly specifie de-

gree of uniformity between administrative hearings and

the court system. To allow an administrative board to

make decisions wholly baseless and without reason and

without review available is to return to a McCarthy style

of adjudicatory proceedings which is without a doubt

against the public policy of this Court and this Nation.

o

CONCLUSION

In this case, there is nothing in the decisions which

could possibly justify Donald H. Moore’s severe punish-

ment. Consolidated Rail Corporation has stated that Page

3 of the Board’s decision indicated a finding that Donald

H. Moore tested positive for marijuana. This is a mis-

statement in the Board’s decision. The Board’s decision

was that the procedure used for the keeping of the positive

specimen was so inadequate that it could not support the

decision to fire Donald H. Moore. If specimen procedures

were so inadequate that Donald H. Moore could not be

fired based upon a positive reading, how can the same

specimen be used to punish Donald H. Moore? This rea-

13

soning is clearly illogical and not based upon fact or

reason.

For the foregoing reasons, this Petition for a Writ

of Certiorari should be granted.

Respectfully submitted,

LAUCKS & MONROE

Donavp L. RErHART

Sup. Ct. L.D. No. 07421

29 North Duke Street

York, Pennsylvania 17401

Tel: (717) 848-4900

Attorneys for Petitioner

5.

TABLE OF CONTENTS

Third Cireuit Court of Appeals Decision 1A

Judgment of Third Cireuit lied dati ehialaites it 6A

Memorandum & Order of Judge Caldwell . 8A

findings of Special Board of Adjustment 0.894 ISA

Article G-C-9 of Colleetive Bargaining Agreement I17A

1A

APPENDIX

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-5739

MOORE, DONALD H.,

Appellant

CONSOLIDATED RAIL CORPORATION

On Appeal from the United States District Court

for the Middle District of Pennsylvania

Civil Action No. 87-0917

District Judge: Honorable William W. Caldwell

Submitted Pursuant to Third Cireuit rule 12(6)

March 8, 1988

BEFORE: WEIS, GREENBERG, and ALDISERT,

Circuit Judges

(Filed Mar. 11, 1988)

MEMORANDUM OPINION

GREENBERG, Circuit Judge

Petitioner, Donald H. Moore, appeals from an order

entered in the district court on September 25, 1987 dis-

missing his petition to review an award made by a Spe-

cial Board of Adjustment following a hearing under the

Railway Labor Act reinstating him without back pay fol-

lowing his discharge by respondent, Consolidated Rail

9 |

~-*

Corporation, for the alleged use of marijuana on Conrail’s

property. The facts significant to us for this appeal are

not in dispute.

In July 1985 Conrail received an anonymous call stat-

ing that Moore was using drugs. Consequently, Conrail

required that Moore submit to a urine analysis on July

25, 1985. Unfortunately, however, the sample from that

test was lost and then when recovered was found to be

inconclusive. On August 2, 1985 he was again tested. The

Board deseribed the procedure for this second test as

follows:

The test took place at Carrier’s Regional Medical

Office at Philadeiphia and Carrier’s Dr. Brindisi,

Registered Nurse Farrell and Health Service Man-

ager McGee were present at the time. The container

holding the specimen was handed by claimant to Dr.

Brindisi immediately after it was given and the Doe-

tor in turn gave it to Ms. Farrell who placed the con-

tainer with the specimen in another container prop-

erly labeled and secured by a cap. She then placed it

in a labeled bag with a note for Metpath Laboratories

requesting analysis and report. That procedure took

place at about noon and about two hours later the bag

was picked up by a Metpath messenger.

This report of the test was understood by the Board to be

positive for marijuana. Though Moore does not concede

the accuracy of the report he does not suggest that the

Board’s understanding of what the report meant is in-

correct.

As a result of the report Conrail, after a hearing, dis-

charged Moore who then administratively appealed as au

thorized by 45 U.S.C. § 1538. The appeal was heard by a

three member Board with a neutral chairman and a car-

rier and an employee member. See United Steelworkers

of America v. Union Railroad Co... 648 F.2d 905 9138 (3d

Cir, 1981). In its decision the Board noted that Moore

had a reasonably good record with discipline having been

imposed on him twice in 15 years. The Board recognized

that the use of a narcotic by an engineer is a serious mat

ter but cautioned that an employee should be disciplined

only on the basis of appropriate evidence, It indicated

that Conrail had made a determined effort to observe most

of the requirements to make an appropriate case but that

‘*!t}he reeord is not as clear as it should be, however,

since there is no clear evidence as to chain of POSSession

during transit from Carrier to the Laboratories and of

the Laboratories’ procedures,’

The Board said that upon “weighing all aspects

of the case, the hazards involved, the respective interests

of the parties and the shortcomings in the record, it is

our conclusion that claimant should be reinstated with

seniority unimpaired but without back pay. It pointed

out that it would not have reinstated Moore despite errors

made by Conrail if the record had established a reason

able doubt that he could be relied on as an engineer, It

said that before he could return to active duty he must

pass a physical examination including a drug screening.

Moore filed a petition for review of the award in the

district court seeking a remand of the matter to the Board

so that he could be awarded baek pay. Conrail subse

quently moved to dismiss the petition for failure to state

a claim upon which relief can be granted. Fed, R. Civ. P.

12(b)(6). In a memorandum opinion on September 25

‘

1987 Judge Caldwell gwranted this motion. He indicated

4A

that Moore argued that he was entitled to relief because

the collective bargaining agreement governing his employ-

ment provided that when discipline is expunged an eng'-

neer who has a wage loss shall be paid for the loss. Here,

according to Moore, the discipline had been expunged and

thus he was entitled to back pay. The judge rejected this

contention as he found that:

The Board did not expunge the discipline or find the

petitioner not guilty of having used marijuana. <A

fair reading of its decision indicates that, while it be-

lieved that the deficiencies in the reeord did not jus-

tify discharge, the record was sufficient to justify

a suspension without pay for having used marijuana.

In this light, the Board, as the respondent asserts,

merely reduced the discipline, and the failure to award

back pay consequently did not ignore the agreement.

We cannot disturb a decision which draws its essence

from the collective bargaining agreement.

Moore further argued that once the Board coneluded

that there were procedural irregularities concerning the

sample, it necessarily had to conelude that there was no

basis for finding that he had been using marijuana and

thus he should have been awarded back pay. The judge

rejected this argument as lie found no statutory basis for

setting aside the Board’s order, citing Union Pacific RR.

Co. v. Sheehan, 439 U.S. 89, 99 S.Ct. 399 (1978). He fur.

ther indicated that the Board’s decision was not irrational

and without foundation. On September 25, 1987 the judge

entered the order granting Conrail’s motion from which

Moore appeals.

On this appeal Moore asserts that Judge Caldwell’s

ruling was flawed as a ‘‘piece of evidence,’’ the test re-

port, if ‘‘entirely tainted’? for one purpose, dismissal, was

also tainted for purposes of denial of back pay. He also

OA

argued, as he did in the district court, that the collective

bargaining agreement required the back pay award.

We affirm substantially for the reasons set forth by

Judge Caldwell and note that cases decided after he ruled

support his result. See United Paperworkers Interna-

tional Union, AF L-C10O v. Misco, Ine., 108 8.Ct. 364 (1987) ;

United States Postal Service v. National Ass'n of Letter

Carriers, No. 87-3501, 3d Cir., decided February 5, 1988.

We do, however, add the following comment. While there

is logic in Moore’s argument that evidence is either tainted

or not, there was some proof of a chain of custody. We

read the record to mean that while this chain was not per-

fect the Board was to some degree accepting the test re-

sults. This understanding is buttressed by the fact that

the Board required Moore to go through a drug screening

before returning to work. If the Board did not think there

was a drug problem here it is difficult to comprehend why

it would have ordered the screening. ‘Thus, though Con-

rail accepts the award of the Board, the inconsistency, if

any, in its award may have been in ordering Moore’s

reinstatement rather than denying him back pay.

Conrail in its brief asks for damages under Fed. R.

App. P. 88. While we reject Moore’s appeal, as we have

indicated there is a certain logic in his position. In the

circumstances we cannot find Rule 388 applicable here.

The order of September 25, 1987 will be affirmed.

TO THE CLERK:

Kindly file the foregoing opinion.

s/ Morton J. Greenberg

Cireuit Judge

6A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 87-5739

MOORE, DONALD H.,

Appellant

CONSOLIDATED RAIL CORPORATION

On Appeal from the United States District Court

for the Middle District of Pennsylvania

Civil Action No. 87-0917

District Judge: Honorable William W. Caldwell

BEFORE: WEIS, GREENBERG, and ALDISERT,

Circuit Judges

JUDGMENT

This cause came on to be considered on the record

from the United States District Court for the Middle Dis-

trict of Pennsylvania, and was submitted under Third

Circuit Rule 12(6) on March 8, 1988.

On consideration whereof, it is now here ordered and

adjudged by this court that the order of the District Court

entered on September 25, 1987, be and the same is hereby

affirmed.

7A

Costs shall be taxed against appellant.

ATTEST:

/s/ Sally Mrvos

Clerk

March 11, 1988

Certified as a true copy and issued in lieu

of a formal mandate on April 4, 1988

Test: /s/ M. Elizabeth Ferguson

Chief Deputy Clerk, United States Court of

Appeals for the Third Circuit

8A

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DONALD H. MOORE,

Petitioner

CIVIL ACTION

NO. 87-0917

Vs.

CONSOLIDATED RAIL

CORPORATION,

Rsspondent

Nee Ne ee as es es we

MEMORANDUM

(Filed Sep. 25, 1987)

Introduction

This case comes before the court on respondent, Con-

solidated Rail Corporation’s (Conrail), motion to dismiss

for failure to state a claim upon which relief can be granted

under Fed. R. Civ. Pro. 12(b)(6). We grant respondent’s

motion.

Background

Petitioner, Donald H. Moore, has filed a petition for

review and enforcement, pursuant to Section 3 (First) of

the Railway Labor Act. 45 U.S.C. §153 (First). He

seeks to modify a decision of the Special Board of Adjust-

ment (Board) which, while reinstating him to his railroad

engineer’s job with Conrail, did so without back pay, the

relief he seeks in the instant petition. Petitioner was an

engineer with Conrail from 1971 until his discharge on

September 24, 1985. In August of 1985, respondent had

suspected that Moore was using drugs while at work. Ae-

cordingly, Conrail tested petitioner s urine on two sepa-

rate occasions. Moore’s second test was positive for the

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presence of marijuana metabolites. Respondent held a

hearing on September 24, 1985 at which time Moore was

dismissed, based on the results of this test, for using mari-

juana while on company property under pay and subject

to duty.

Petitioner appealed his dismissal to the Board pur-

suant to the Act. The Board reinstated petitioner effec-

tive January 30, 1987, but it did not award him back pay.

In doing so, the Board concluded that the record of the

Conrail hearing resulting in petitioner’s discharge did

not adequately show the chain of possession of the urine

sample from Conrail to the testing laboratory or the lab-

oratory’s procedures in testing the sample. It noted its

concern for procedural rights when the charged miscon-

duct could result in a loss of livelihood, but also empha-

sized Conrail’s ‘‘determined efforts’’ to meet those re-

quirements. Thus, the Board noted that a physician and

nurse testified to the circumstances surrounding the tak-

ing of the sample and its identification and the existence

of the laboratory report, showing the presence of mari-

juana metabolites. The Board then stated: ‘‘Upon weigh-

ing all aspects of the case, the hazards involved, the re-

spective interests of the parties and the shortcomings in

the record, it is our conclusion that claimant should be

reinstated with seniority unimpaired but without back

pay. 9?

Discussion

The jurisdiction of federal courts to review decisions

of the Special Board of Adjustment is statutorily limited.

The court has jurisdiction to hear an appeal of a Board

decision only ‘‘. . . for failure of the [Board] to comply

iain aaa

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with the requirements of this chapter, for failure of the

order to conform, or confine itself, to matters within the

scope of the [Board’s] jurisdiction, or for fraud or cor-

ruption by a member of the [Board] making the order.’’

45 U.S.C. § 153 (first) (q) (brackets added). This is a

very narrow standard of review. See United Steelwork-

ers of America v. Union Railroad Co., 648 F.2d 905 (3d

Cir. 1981). Plaintiff has alleged neither violations of

chapter 153 nor that the Board acted fraudulently or cor-

ruptly. We may therefore only set aside its decision if it

exceeded its jurisdiction when it failed to award back pay

in alleged violation of the Agreement.!

Petitioner’s first argument is based on the following

language found at Article G-C-9(h) of the collective bar-

gaining agreement. (Complaint, Exhibit B):

When discipline assessed as a result of a tormal in-

vestigation is subsequently expunged, an engineer who

has incurred wage loss shall be paid for such wage

loss incurred. When discipline assessed is subse-

quently reduced, an engineer who has incurred wage

loss shall be paid for such wage loss during any period

not part of his final discipline assessment.”?

Petitioner contends that the Board expunged the dis-

cipline by concluding that there were procedural irregular-

ities in the handling of his urine sample and consequently

reinstating him. Hence, the clear language of the agree-

ment required an award of back pay as well. We disagree.

1. We reject petitioner's claim that we may reverse the Board

if its decision was wholly baseless and without reason. In any

event, even if we agreed with petitioner, the Board’s decision,

as shown below, would not have fallen short of that standard.

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The Board did not expunge the discipline or find the

petitioner not guilty of having used marijuana. A fair

reading of its decision indicates that, while it believed that

the deficiencies in the record did not justify discharge, the

record was sufficient to justify a suspension without pay

for having used marijuana. In this light, the Board, as the

respondent asserts, merely reduced the discipline, and the

failure to award back pay consequently did not ignore the

agreement. We cannot disturb a decision which draws its

essence from the collective bargaining agreement. See

Zeviar v. Local No. 2747, 733 F.2d 556 (8th Cir. 1984).

Petitioner’s next argument is that once the Board

concluded that there were procedural irregularities con-

cerning the sample, it necessarily had to conclude that

there was no basis for finding that petitioner had been

using marijuana. Without that finding, it was completely

irrational to deny back pay. We have already rejected

petitioner’s argument that we may use an absence of ra-

tionality standard in reviewing the Board’s decision. The

Supreme Court has ‘‘time and again emphasized’’ that we

are limited to the grounds for review provided by the Act.

Union Pacific Railroad Co. v. Sheehan, 439 U.S. 89, 93, 99

S.Ct. 399, 402, 58 L.Ed.2d 354, 359 (1978) (per curiam). In

any event, in accordance with our discussion above, we do

not find the Board’s decision irrational or without founda-

tion.

We will issue an appropriate order.

/s/ William W. Caldwell

William W. Caldwell

United States District Judge

Date: September 25, 1987

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IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

DONALD H. MOORE, )

)

Petitioner )

)

vs. ) CIVIL ACTION

) NO. 87-0917

CONSOLIDATED RAIL )

CORPORATION, )

)

Respondent )

ORDER

(Filed September 25, 1987)

AND NOW, this 25th day of September, 1987, it is

ordered that:

1. Respondent’s motion to dismiss the petition

is granted.

2. The petition is hereby dismissed.

3. The Clerk of Court shall close this file.

/s/ William W. Caldwell

William W. Caldweil

United States District Judge

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Award No. 848

Case No. 848

Special Board of Adjustment No. 894

PARTIES TO DISPUTE:

Brotherhood of Locomotive Engineers

and

Consolidated Rail Corporation

STATEMENT OF CLAIM:

Appeal by Engineer D. H. Moore from dismissal on Sep-

tember 24, 1985. Claim for removal of discipline and pay-

ment for all time lost, ineluding reasonable compensation

for mental and physical duress, travelers benefits, dental

plan, Title VII allowance, vacation rights and retirement

benefits.

FINDINGS:

Claimant was dismissed, after a hearing had been held on

due notice, for using marijuana while on Company prop-

erty, under pay and subject to duty on August 2, 1985.

Claimant had a reasonably good record. In the course of

15 years service as a locomotive engineer he had been dis-

ciplined twice, a reprimand in 1981 and a five-day suspen-

sion in early 1984 for train operating errors. So far as the

record shows, there is no competent indication that he had

engaged in a Rule G violation prior to August 1985. The

fact that he had a good prior record would not protect him

from dismissal if he were found guilty of using drugs.

Regional Road Foreman Black’s suspicions were roused

in July, 1985 when he received an anonymous telephone

eall that claimant was using drugs. On the strength of that

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call, claimant was given a urine test on July 25, 1985 at

one of Carrier's medical facilities, but that test was then

temporarily lost and then found insufficient to be of con-

firming value.

Accordingly, claimant was again tested, this time on Aug-

ust 2, 1985, when he was not operating a train but was on

the engineer's extra list. The test took place at Carrier’s

Regional Medical Office at Philadelphia and Carrier’s

Dr. Brindisi, Registered Nurse Farrell and Health Service

Manager McGee were present at the time. The container

holding the specimen was handed by claimant to Dr. Brin-

disi immediately after it was given and the Doctor in turn

gave it to Ms. Farrell who placed the container with the

specimen in another container properly labeled and se-

cured by a cap. She then placed it in a labeled bag with a

note for Metpath Laboratories requesting analysis and

report. That procedure took place at about noon and about

two hours later the bag was picked up by a Metpath mes-

senger.

Metpath’s report of August 4, 1985 advised Carrier that

the specimen was positive,

‘THC, urine, GT 50 micrograms per liter."

It is quite apparent that the use of a narcotic by a locomo-

tive engineer is a matter of serious concern to his em-

ployer and indeed to the public. That it provides a valid

basis for dismissal is equally clear. Nevertheless, the

gravity of the drug problem does not relieve an employer

from making certain that the engineer is accorded all the

procedural protection that elementary principles of due

process, fair play and common sense requires. Mere su-

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spicion, conjecture and hearsay may never be substituted

for competent proof.

In any such case, qualified witnesses shou!d be made avail-

able to furnish information, on direct and cross examina-

tions, as to the nature and effect of the chemical substance

involved, the manner in which the test was given; the pro-

cedures or protecting the specimen during time delays,

transit and storage, and the details regarding analysis at

the Laboratory.

In brief, it must be shown that the rights of the individual

have been protected. And that obligation becomes all the

more sensitive and important when the misconduct im-

puted to him is particularly serious and reprehensible and

gives rise to loss of livelihood.

In the present case, Carrier made a determined effort to

observe most of these requirements. It did not rely on the

anonymous call to Black. The findings as to the taking of

the test were based on testimony by a physician, a regis-

tered nurse, and the health facility manager; the findings

regarding the analysis rest on Metpath Laboratories’ re-

port.

The record is not as clear as it should be, however, since

there is no clear evidence as to chain of possession during

transit from Carrier to the Laboratories and of the Lab-

oratories’ procedures.

Upon weighing all aspects of the case, the hazards in-

volved, the respective interests of the parties and the

shortcomings in the record, it is our conclusion that claim-

ant should be reinstated with seniority unimpaired but

without back pay. In reaching this decision, we have not

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been impressed by Petitioner’s hearing procedure objec

tions; they do not constitute reversible error. Nor have

we given undue weight to the fact that claimant’s tests

were prompted by an anonymous telephone call, although

no complaint had been received from any supervisor or

employee regarding claimant’s vigilance, judgment and

conduct.

In any event, this Board would not have reinstated claim-

ant, despite errors on Carrier’s part, if the record had

established a reasonable doubt that claimant could be re-

lied on as an engineer. Before returning to active duty,

claimant must pass a return to duty physical examination,

including a drug screen as well as any necessary rules ex

amination.

AWARD:

Claimant reinstated without back pay. To be effective

within 30 days.

Adopted at Philadelphia, PA, December 22, 1986.

s/ Harold M. Weston

Harold M. Weston, Chairman

Illegible

Carrier Member

/s/ R. W. Godwin

Employee Member

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ARTICLE G-C-9—Time Allowance—Attending Inves-

tigations

(a) If an engineer is not disciplined after being re-

quired to attend a formal investigation and loses time on

his regular assignment or turn in a pool or extra list, he

shall be paid for the time lost due to his attendance at the

investigation.

(b) If an engineer is not disciplined after being re

quired to attend a formal investigation at his base termi-

nal and loses no time on his regular assignment or turn in

a pool or extra list, he shall be paid for attending the in-

vestigation as follows:

(A) If his attendance is immediately before or after

his tour of duty, the time spent at the investiga-

tion shall be paid for continuous with his tour of

duty.

(B) If his attendance is not immediately before or

after his tour of duty or is on his assigned day

off, actual time spent at the investigation shall be

paid for at the straight time rate of pay of the

last service performed with a minimum of one

day’s pay.

(c) (1) When an engineer is not disciplined after

being required to attend a formal investigation at other

than his home terminal, for attending the investigation he

shall be paid on a continuous time basis at the basic daily

rate of pay applicable to the last service performed com-

puted from the time he starts from his home terminal and

ending at the time he returns thereto with a minimum of

one day’s pay, except as provided in paragraph (c) (2).

Continuous time spent traveling from and to the home

terminal shall be computed on the basis of 1.5 minutes for

each mile traveled via the best route and added to the

time spent at the investigation.

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2) If an investigation is recessed on the first

day and continued on the succeeding day or days and the

engineer is held over, the continuous time payment shall

+

cease at the time the investigation is recessed on the first

day. If such investigation is reconvened the next day and

again recessed, the engineer held over shall be paid actual

time for attending the investigation with a minimum of

one day’s pay. When the investigation is reconvened, com-

pleted, and the engineer is authorized to return to his

home terminal, he shall be paid on a continuous time basis

computed from the time the investigation was reconvened

on that day until he returns to his home terminal with a

minimum of one day's pay.

(3) When the time lost to attend a formal in-

vestigation is greater than the total payment provided for

in this paragraph (c), the engineer shall be paid. for the

time lost.

(d) (1) When an engineer is authorized to use

other than rail transportation, he shall be reimbursed for

out of pocket cost of authorized transportation: when

authorized to use his own automobile he shall be reimbursed

for the mileage travelled at the applicable car mileage rate

paid by the Corporation.

(2) When an engineer is held over at other

than his home terminal to attend a reconvened formal in

vestigation he shall be permitted to use lodging facilities

provided by the Corporation at that location. If no such

lodging facility is available otler suitable lodging shall be

provided.

(e) When an engineer is required to attend a formal

investigation while he is already under pay, no additional

payment is due.

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(f) The foregoing paragraphs (a), (b), (¢c), (d), and

(e) shall also apply to an engineer who is directed by the

Corporation to attend a formal investigation as a witness.

(g) Kxeept when held out of service because of in-

volvement in a serious act or occurrance, an engineer in

pool or extra service required to attend a formal investi-

ga‘ion shall if unable to accept call for his assignment due

to attendance at an investigation be marked up as follows:

(1) An engineer in a pool where a pool engi-

neer is replaced by an extra engineer when he marks off

shall be marked up at the bottom of the pool when the

extra engineer taking his place returns.

(2) An engineer in a pool where a pool engi

neer is not replaced by an extra engineer when he marks

off or an engineer on an extra list shall be marked up at

the bottom of the pool or extra list in the same manner as

if ie were called for the assignment.

(h) When discipline assessed as a result of a formal

investigation is subsequently expunged, an engineer who

has incurred wage loss shall be paid for such wage loss in-

curred. When discipline assessed is subsequently reduced,

an engineer who has incurred wage loss shall be paid for

such wage loss during any period not part of his final dis-

cipline assessment. An engineer paid pursuant to this

paragraph shall not be entitled to payment under para-

graph (a).