9th Circuit Asked to Reverse Worker’s Firing

(CN) - A railroad worker fired after a company rep allegedly threatened an arbitrator who didn't vote in favor of the dismissal appealed to the 9th Circuit to review the decision.

Richard Kite was fired in 2005 after testing positive for alcohol a second time within ten years. Kite and the United Transportation Union appealed the decision to an arbitration board composed of a BNSF Railway representative, a union representative and a neutral arbitrator. The board issued a draft award in 2008, reinstating Kite but the railroad called an executive session so the arbitrator could explain her decision.

During the 2009 executive session, the railroad representative on the board told the arbitrator, "If you are going to issue these kinds of opinions, you will never work for a Class One railroad again," according to Kite's federal complaint. The arbitrator then recused herself and a final award was issued upholding Kite's firing.

Kite and the union sued in federal court for review of the decision, claiming BNSF Railway engaged in "fraud and corruption."

U.S. District Court Judge Ronald B. Leighton dismissed the complaint, finding "the alleged corruption did not allow BNSF to obtain an award." Leighton said "at most" the alleged threat led only to the arbitrator recusing herself, a dismissal without prejudice and a new arbitration.

Rick Pope, representing Kite and the union, argued before the three-judge panel that the lower court improperly found no fraud or corruption contributed to the final arbitration decision.

"You don't exhort neutral arbitrators," Pope said. "She recused herself because of the threat."

Judge Milan Smith asked Pope if his client filed a police report. "Fraud and corruption are crimes." Smith said. Pope said no police report was filed, but the case still met the legal definition of corruption. Pope said the arbitrator was just starting her own business and feared being "blackballed."

"If there is no extortion there under the law, you lose," Smith said.

David Pryor, representing BNSF, told the panel that under the Railway Labor Act, fraud needs to be "secret bias."

"This was not secret bias," Pryor said."

"You mean if it's open bias it's O.K.?"Judge Stephen Reinhardt asked.

Pryor said both parties had a chance to cure the bias, so the comment didn't meet fraud and corruption under the law.

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