                      Revised May 12, 1999

              IN THE UNITED STATES COURT OF APPEALS

                      FOR THE FIFTH CIRCUIT

                ________________________________


                             No. 98-10552

                ________________________________


ATCHISON, TOPEKA AND SANTA FE RAILWAY CO.,
                         Plaintiff/Counterdefendant/Appellant,

     versus

UNITED TRANSPORTATION UNION (CT&Y),
                         Defendant/Counterclaimant/Appellee.

_________________________________________________________________

           Appeal from the United States District Court
                for the Northern District of Texas
_________________________________________________________________
                           May 10, 1999

Before KING, Chief Judge, and POLITZ and BENAVIDES, Circuit
Judges.

BENAVIDES, Circuit Judge:

      Atchison, Topeka and Santa Fe Railway Co. (“Santa Fe”)

appeals the district court’s determination that it lacked any

ground to overturn a public law board’s award under the Railway

Labor Act (“RLA”). We find that the district court properly

granted summary judgment to appellee United Transportation Union

(CT&Y) (“UTU”) and affirm.

     Under Federal Railroad Administration (“FRA”) guidelines,

railroad yardman is a safety-sensitive position. FRA regulations
mandate that railroads conduct random drug testing of employees

in safety-sensitive positions. See 49 C.F.R. § 219.601. In a

random drug test in November 1993, James E. Richardson, a yardman

with Santa Fe, tested positive for cocaine. Richardson had tested

positive for cocaine in 1989 and positive for cocaine and

marijuana in 1988. Santa Fe suspended Richardson pending an

investigation. In accordance with the collective bargaining

agreement in effect between it and the UTU, Santa Fe scheduled a

formal hearing, which took place in January 1994. At that

hearing, Richardson denied using cocaine and produced a list of

prescription and over-the-counter medications he was taking.

Three weeks later, Santa Fe fired Richardson pursuant to section

9.0 of its Policy on the Use of Alcohol and Drugs, which provides

for firing employees who test positive for controlled substances

twice within ten years.1

     Both federal regulations, see 49 C.F.R. § 40.33; 49 C.F.R.

§ 219.707, and Santa Fe’s internal policies2 direct the



     1. The record does not make apparent any specific reason
why Santa Fe did not attempt to fire Richardson after his second
positive test. Santa Fe does not appear to have held a hearing
following the second positive test, as the collective bargaining
agreement requires before Santa Fe fires an employee.

     2. The form that Richardson had signed at the time of
testing regarding his urine sample stated:
     Should the results of the lab test for the specimen
     identified by this form be confirmed positive, the
     Medical Review Officer will contact you to ask about
     prescription and over-the-counter medications you may
     have taken. Therefore, you may want to make a list of

                               -2-
railroad’s medical review officer (“MRO”) to evaluate information

that casts doubt on a positive drug test. Santa Fe’s MRO

telephoned Richardson in November 1993 to tell him that he tested

positive for cocaine. The MRO does not appear to have inquired at

any time about other drugs Richardson might be taking, and

Richardson did not at any time before the January 1994 hearing

advise Santa Fe that he was using prescription or over-the-

counter drugs. The MRO did not attend Richardson’s hearing.

     The UTU appealed Richardson’s dismissal within Santa Fe. The

company issued its final denial in April 1995. The UTU forwarded

the matter to Public Law Board 4901 (“PLB” or “Board”) for

resolution.3 The PLB conducted a hearing and issued a decision in

August 1996 reinstating Richardson with back pay and benefits.

The Board found that the MRO had not investigated the effect that

Richardson’s medications might have had on a drug test result and

thus that the November 1993 positive test result was not a valid

ground for firing Richardson.



     those medications as a reminder. This list is not
     necessary. If you choose to make a list, do so either
     on a separate piece of paper or on the back of your
     copy . . . of this form. Do not list on the back of any
     other copy of this form. Take your copy with you.
Richardson testified at his disciplinary hearing that he was not
otherwise asked about his use of medications until the hearing.

     3. Pursuant to § 3 of the RLA, 45 U.S.C. § 153, arbitration
of minor labor disputes before the National Railroad Adjustment
Board is mandatory. Proceedings before a public law board, or
adjustment board, created by agreement between employer and
union, may substitute for NRAB arbitration.

                                -3-
     Santa Fe sought review of the PLB award before the district

court. “Under the Railway Labor Act . . . the range of judicial

review in enforcement cases is among the narrowest known to the

law.” Diamond v. Terminal Railway Alabama State Docks, 421 F.2d

228, 233 (5th Cir. 1970). National policy favors the final

settlement of labor disputes by arbitration. See, e.g., Air Line

Pilots Association, International v. Eastern Air Lines, Inc., 632

F.2d 1321, 1323 (5th Cir. 1980). “The federal policy of settling

labor disputes by arbitration would be undermined if courts had

the final say on the merits of the awards.” United Steelworkers

of America v. Enterprise Wheel and Car Corp., 363 U.S. 593, 596,

80 S. Ct. 1358, 1360 (1960). In keeping with federal policy

favoring the enforcement of arbitration awards, the RLA provides

that a reviewing court may set aside an adjustment board’s award

only in one of three circumstances: (1) if the board failed to

comply with the RLA; (2) if the board failed to confine itself to

matters within its jurisdiction; or (3) if fraud or corruption

tainted the process. See 45 U.S.C. § 153 First (q); Union Pacific

Railroad Co. v. Sheehan, 439 U.S. 89, 93, 99 S. Ct. 399, 402

(1978) (per curiam). This Court has recognized a fourth basis for

setting aside an award, in cases where the award failed to meet

the requirements of due process. See, e.g., Brotherhood of

Locomotive Engineers v. St. Louis Southwestern Railway Co., 757

F.2d 656, 660-61 (5th Cir. 1985). Santa Fe urged the district


                               -4-
court to adopt a fifth ground for denying enforcement of an

arbitration award under the RLA, namely, in cases where the award

contravenes public policy. The district court rejected Santa Fe’s

argument for a fifth ground and, finding that none of the four

recognized grounds for setting aside the award applied, granted

the UTU’s motion for summary judgment.

     Santa Fe makes two arguments to this Court as to why the

arbitration award should be set aside. First, Santa Fe argues

that the PLB exceeded its jurisdiction when it reinstated

Richardson. According to Santa Fe, the record before the Board

contained no evidence that Richardson was taking the medications

at the time of the drug test (instead of merely at the time of

the hearing) and no evidence that the medications could have

caused a false positive test result. Furthermore, according to

Santa Fe, the Board improperly relied on Richardson’s statement

that he was taking medications, because the statement was not

made until two months after the drug test at the hearing. This

argument is without merit. The Board’s finding was that Santa Fe

failed to have its MRO investigate Richardson’s medications.

Because of that failure, the Board held, the positive test result

could not be considered valid. The Board’s factually based

findings in this regard are conclusive. See Eastern Air Lines,

632 F.2d at 1323. Without a valid positive test result, Santa Fe

had no grounds under the collective bargaining agreement for



                               -5-
dismissing Richardson, and the PLB was within its jurisdiction in

reinstating him.

     Second, Santa Fe urges this Court to follow several other

circuits and hold that a court may overturn an RLA arbitration

award if the award contravenes public policy. See, e.g., Union

Pacific Railroad Co. v. United Transport Union (“Madison”), 3

F.3d 255, 261 (8th Cir. 1993) (specifically holding that

precedent concerning public policy review under the National

Labor Relations Act applies as well to the RLA); Delta Air Lines,

Inc. v. Air Line Pilots Association, International, 861 F.2d 665,

669-71 (11th Cir. 1988) (assuming without discussion that public

policy review is available under the RLA as well as under the

NLRA); Northwest Airlines, Inc. v. Air Line Pilots Association,

International, 808 F.2d 76, 83-84 (D.C. Cir. 1987) (same). We

need not reach this issue. Even if Santa Fe is correct that there

is a well-defined public policy against reinstating a drug user

to a safety-sensitive position in the railroad industry, the

PLB’s decision in this case would not violate that policy.

Because the Board found the test invalid, it did not assume that

Richardson in fact used cocaine. This is not a case in which a

PLB, after finding or not questioning that an employee used drugs

or alcohol in violation of company policy, nonetheless ordered

the employee reinstated to a safety-sensitive position, as might

require us to consider public policy review. Cf. Madison, 3 F.3d


                               -6-
at 262-63 (refusing on public policy grounds to enforce an award

reinstating a safety-sensitive employee whose due process rights

were violated at his hearing but who nonetheless was found to

have violated his company’s alcohol regulation)4; Delta Air

Lines, 861 F.2d at 668, 674 (refusing on public policy grounds to

enforce an award reinstating an airline pilot where the

adjustment board found that the pilot in fact had flown a plane

while drunk).

     Regardless of whether we agree with the PLB’s award, we have

no basis under law upon which to overturn it. We therefore must

AFFIRM the district court’s grant of summary judgment to the UTU.




     4. In Madison, the company hearing officer made improper
remarks on the hearing record--stating that the employee
“reek[ed] of alcohol”--before the company determined that the
employee had violated an industry-wide rule prohibiting the use
of drugs or alcohol on the job. A public law board reinstated the
employee without considering whether he had in fact violated the
regulation. See Madison, 3 F.3d at 257. The Eighth Circuit found
the board’s award contrary to public policy because the board had
failed to determine the employee’s likelihood of future alcohol
violations. See id. at 262. Madison may be distinguished from the
instant case insofar as nothing in Madison suggested that the
testing procedures used by the company might be invalid, only
that the hearing officer made prejudicial remarks. Although the
Madison court stated that it did not decide the case on the
assumption that the drug test results were positive, see id. at
257 n.3, it acknowledged, “If the Board had reinstated [the
employee] after finding that the allegedly positive test results
were invalid due to faulty testing procedures or some other
reason, we would be obliged to enforce the award.” Id. at 262.

                               -7-
