Jackson v. Brotherhood's Relief & Comp. Fund

G erald Jackson, appellee , v. Brotherhood’s relief
and compensation fund, appellant.
779 N.W.2d 589
Filed March 19, 2010. 	No. S-09-812.
1. Contracts: Judgments: Appeal and Error. The meaning of a contract is a ques-
tion of law, in connection with which an appellate court has an obligation to reach
its conclusions independently of the determinations made by the court below.
2. Judgments: Appeal and Error. In a bench trial of a law action, the trial court’s
factual findings have the effect of a jury verdict and will not be disturbed on
appeal unless clearly wrong.
3. Employer and Employee: Blood, Breath, and Urine Tests. An employee
refuses to take a drug test if he or she fails to provide a sufficient amount of urine
when directed and there is no adequate medical explanation for the failure.
4. Stipulations. The construction of a stipulation is a question of law.
5. ____. Parties have no right to stipulate as to matters of law, and such a stipula-
tion, if made, will be disregarded.
Appeal from the District Court for Box Butte County: Brian
c. silverman, Judge. Reversed and remanded with directions
to dismiss.
Renee Eveland, of Wolfe, Snowden, Hurd, Luers & Ahl,
L.L.P., for appellant.
Andrew 	W. 	Snyder 	and 	Maren 	Lynn 	Chaloupka, 	of
Chaloupka, Holyoke, Hofmeister, Snyder & Chaloupka, L.L.C.,
for appellee.
heavican, 	c.J., 	WriGht, 	connolly, 	G errard, 	stephan,
mccormack, and miller-lerman, JJ.
G errard, J.
This is the second time this case has been before us.1 It
remains a case about an alleged breach of contract. Gerald
Jackson, a railroad employee, sued Brotherhood’s Relief and
Compensation Fund (the Fund), alleging that the Fund breached
its member agreement to pay him “‘Held Out of Service’”
benefits in the event he was suspended by his employer. The
1 See Jackson v. Brotherhood’s Relief & Comp. Fund, 273 Neb. 1013, 734
N.W.2d 739 (2007).
JACkSON v. BROTHERHOOD’S RELIEF & COMP. FuND 	593
Cite as 279 Neb. 593
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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district court found in favor of Jackson. The primary issue
presented in this appeal is whether Jackson is entitled to “held
out of service” benefits pursuant to the member agreement.
We conclude as a matter of law that Jackson is not entitled to
benefits, and we reverse the judgment of the district court and
remand with directions to dismiss Jackson’s complaint.
BACkGROuND
Jackson was employed as an engineer at Burlington Northern
Santa Fe Railway (BNSF). On January 2, 2003, Jackson
reported to work and was asked to submit to a random drug
test. The drug test required both a breath test and a urine
sample. Jackson performed the breath test but did not provide a
urine sample. Jackson testified that if he had been able to give
a sample, he would have done so.
karen Donker, who was hired by BNSF to perform the drug
test, testified that over a 3-hour timespan, she asked Jackson
three to five times to urinate. Jackson never went into the rest-
room or attempted to urinate. Jackson testified that he urinated
5 minutes before he went to work and did not “have the urge
to go.” Donker testified that at the end of the 3-hour waiting
period, Jackson told her “no, he was not going to go.” Jackson
said that he ate a large meal before coming to work and refused
to drink any liquid because he would suffer indigestion and
heartburn. Jackson also testified that in the week before the
drug test, he had been ill with flu-like symptoms, dehydra-
tion, and diarrhea. A week after the drug test, Jackson was
diagnosed with prostatitis, a bacterial infection of the prostate
gland that (according to Jackson) can be a “contributing factor”
to an inability to urinate.
Because Jackson did not provide a urine sample, he was
suspended by BNSF and a formal investigation was initiated
by the railway. Following the formal investigation, Jackson
was “held out of service” for 9 months for refusal to pro-
vide a urine specimen, in violation of the BNSF alcohol and
drug policy.
At the time Jackson was suspended, he was a member of
the Fund in “good and regular” standing. The Fund provides
its members “held out of service” benefits, an accidental
594 	279 NEBRASkA REPORTS

death and dismemberment insurance policy, and the potential
of small retirement benefits, in consideration for the pay-
ment of dues. The Fund bases its determination of benefits
eligibility upon the results of the grievance process provided
under the member’s collective bargaining agreement. The
terms of the agreement between the Fund and a member are
contained in the Fund’s “constitution,” which governs the
claims process.
In accordance with the constitution, Jackson timely submit-
ted a claim to the Fund for benefits, along with the transcript
and exhibits from the BNSF investigative hearing. The Fund
denied Jackson’s claim in a written letter, stating: “After
closely studying the facts submitted in your claim, we regret
to advise you that it cannot be approved since it does not
come within the provisions of the Constitution. We refer you
specifically to Article XII, Sec. 4 and Article XXXIII, Sec.
1-a.” (Emphasis in original.) Section 4 of article XII states in
relevant part: “Member shall not be eligible for any benefits
or compensation whatsoever for ‘Held Out of Service’, as
hereinafter defined, where such claim is based in whole or in
part upon . . . failure to take training or to take or pass any
examination . . . required by the employer . . . .” Section 1-a
of article XXXIII of the constitution defines the term “held out
of service” as follows:
“Held Out of Service”, as used in this Constitution, shall
include all cases where an employee of the Motive Power
or Transportation Department has been entirely and per-
manently, or temporarily, relieved by his employer from
the performance of his said usual duties after formal
investigation, at which said employee was properly rep-
resented by a representative of the local grievance com-
mittee or other employee, as discipline for an offense or
offenses, not, however, because of any willful or inten-
tional violation or infraction of any order or orders,
rule or rules, regulation or regulations, expressed or
implied, of his employer, or of any violation or infrac-
tion of any Federal or State Law now in force or here-
after enacted.
(Emphasis supplied.)
JACkSON v. BROTHERHOOD’S RELIEF & COMP. FuND 	595
Cite as 279 Neb. 593

After his claim was denied, Jackson filed a complaint against
the Fund in the district court. He alleged that the Fund had
breached its contract with him by failing to compensate him
while he was suspended. Jackson sought damages and attorney
fees and costs. Following the initial trial, a jury found in favor
of Jackson and awarded him $53,010, the amount of damages
to which the parties had stipulated. The district court also
sustained Jackson’s motion for attorney fees and costs. The
Fund appealed, and we transferred the appeal to our docket.
On appeal, we held that the district court erred in admitting
certain exhibits into evidence, and we vacated the jury’s ver-
dict and the judgment entered against the Fund.2 The case was
remanded for a new trial.
A bench trial was held on remand, and the district court
found that Jackson’s failure to give a urine sample was not
willful or intentional and that he was entitled to $53,010 as
damages for being held out of service. The court awarded
Jackson attorney fees and costs and denied the Fund’s motions
to dismiss and for a new trial. The Fund appeals.
ASSIGNMENTS OF ERROR
The Fund assigns, consolidated and restated, that the district
court erred in (1) finding Jackson was entitled to benefits under
the constitution, (2) using an improper standard of review, and
(3) awarding attorney fees and costs.
STANDARD OF REvIEW
[1] The meaning of a contract is a question of law, in con-
nection with which an appellate court has an obligation to
reach its conclusions independently of the determinations made
by the court below.3
ANALySIS
The primary issue presented in this appeal is whether Jackson
was entitled to benefits pursuant to the Fund’s constitution. The
2 Id.
3 Builders Supply Co. v. Czerwinski, 275 Neb. 622, 748 N.W.2d 645
(2008).
596 	279 NEBRASkA REPORTS

Fund argues that Jackson is not entitled to benefits under the
plain language of the constitution, because he refused to take
a federally required drug test by not providing a urine sample.
First, the Fund argues, proof that Jackson’s conduct was willful
or intentional is unnecessary because under article XII of the
constitution, a failure to provide a urine sample is a sufficient
basis for the denial of benefits. Second, the Fund asserts that
under article XXXIII, Jackson willfully or intentionally vio-
lated an order, rule, or regulation of his employer. Because, as
explained below, we conclude that the denial of benefits was
warranted by article XXXIII, we need not address whether the
urine test was an “examination . . . required by the employer”
within the meaning of article XII.
As noted above, article XXXIII defines “held out of service”
as having been “relieved by his employer from the perform-
ance of his said usual duties after formal investigation,” but
excludes a suspension based on “any willful or intentional vio-
lation or infraction of any order or orders, rule or rules, regu-
lation or regulations, expressed or implied, of his employer,
or of any violation or infraction of any Federal or State Law
now in force or hereafter enacted.” We have no difficulty in
concluding that a “refusal” to provide a urine sample required
by federal law is a willful or intentional violation or infrac-
tion within the meaning of article XXXIII. And based on our
review of the record, there is little doubt that Jackson inten-
tionally refused to provide a urine specimen for a random drug
test, in violation of the federal regulations we will explain in
more detail below.
It is undisputed that Jackson was required by BNSF—and
federal law—to submit to a random drug test requiring both
a breath and a urine specimen. And it is also undisputed that
Jackson did not give, or even try to give, a urine sample.
Following his refusal to provide a urine sample at the random
drug test, BNSF sent a letter to Jackson informing him that he
was suspended because he violated the BNSF policy on drug
and alcohol use. The letter also stated that the suspension was
“in accordance with 49 CFR Part 219.107,” which provides that
“[a]n employee who refuses to provide breath or a body fluid
specimen or specimens when required to by the railroad under
JACkSON v. BROTHERHOOD’S RELIEF & COMP. FuND 	597
Cite as 279 Neb. 593

a mandatory provision of this part must be deemed disqualified
for a period of nine (9) months.”4
In 	1991, 	Congress 	passed 	the 	Omnibus Transportation
Employee Testing Act of 1991,5 amending the Federal Railroad
Safety Act of 1970 to require drug testing of railroad workers
in safety-sensitive positions.6 Federal Railroad Administration
regulations, as amended, establish minimum federal safety
requirements for the control of alcohol and drug use in rail-
road operations.7 Those regulations establish when testing is
required, who is to be tested, and the actions which must be
taken when an employee passes or fails a required test.8 In
addition, the Department of Transportation (DOT) promulgated
regulations which support Federal Railroad Administration
testing, essentially providing the technical, scientific, and
medical 	detail 	on 	how 	Federal 	Railroad 	Administration
drug and alcohol specimens are to be collected, analyzed,
reviewed, and reported.9 Drug testing procedures must com-
ply with the scientific and technical procedures set forth in
those regulations.10
The Fund points out that Jackson was deemed, as a mat-
ter of federal law, to have “refused” the test under 49 C.F.R.
§ 40.191(a), which lists 11 examples of what constitutes a
refusal to take a drug test. In particular, § 40.191(a)(3) states,
in pertinent part, that an employee has refused to take a drug
test if he or she “[f]ail[s] to provide a urine specimen for any
drug test required by this part or DOT agency regulations . . . .”
The Fund argues that a refusal to provide a urine specimen is a
willful or intentional act within the meaning of article XXXIII.
We agree.
4 49 C.F.R. § 219.107(a) (2009).
5 Omnibus Transportation Employee Testing Act of 1991, Pub. L.
No. 102-143, 105 Stat. 952 (codified at 49 u.S.C. § 20140 (2006)).
6 See id.
7 See 49 C.F.R. part 219.
8 See id.
9 See 49 C.F.R. part 40 (2009).
10 See 49 C.F.R. § 382.105 (2009).
598 	279 NEBRASkA REPORTS

[2] In a bench trial of a law action, the trial court’s factual
findings have the effect of a jury verdict and will not be dis-
turbed on appeal unless clearly wrong.11 But in this case, the
facts are undisputed. Jackson was required by his employer
and federal law to submit to a random drug test which required
both a breath and a urine specimen. Jackson failed to provide
a urine specimen—in fact, he did not even try over the course
of 3 hours. He has therefore willfully refused to submit to a
drug test within the meaning of DOT regulations. And because
Jackson refused to submit to the drug test, he is not permitted
to receive “held out of service” benefits under the terms of
the constitution.
[3] Even if we consider Jackson’s purported medical inability
to urinate, the evidence he submitted on that point was insuf-
ficient as a matter of law. under DOT regulations, a medical
excuse is permitted only if subsection 49 C.F.R. § 40.191(a)(5)
is satisfied. That subsection states that an employee has refused
to take a drug test if he or she “[f]ail[s] to provide a sufficient
amount of urine when directed, and it has been determined,
through a required medical evaluation, that there was no ade-
quate medical explanation for the failure (see § 40.193(d)(2)).”
under § 40.193, an employee who fails to provide a sufficient
sample is urged to drink 40 ounces of fluid during a period
of up to 3 hours or until a sufficient sample is produced.12 At
that point, if an insufficient sample is again provided, there are
medical interventions, including consulting the medical review
officer and directing the employee to obtain an evaluation from
a licensed physician, acceptable to the review officer, who has
expertise in the medical issues raised by the employee’s failure
to provide a sufficient specimen.13
In this case, although the record is not completely clear
on the point, it appears that Donker followed the insufficient-
sample procedure despite Jackson’s unwillingness to try to
produce a specimen, because she waited for 3 hours and urged
11 Anderson Excavating v. SID No. 177, 265 Neb. 61, 654 N.W.2d 376
(2002).
12 § 40.193(b)(2).
13 § 40.193(c).
JACkSON v. BROTHERHOOD’S RELIEF & COMP. FuND 	599
Cite as 279 Neb. 593

him to drink liquids. But a referral physician conducting an
examination pursuant to § 40.193(d) is asked to determine
either that “[a] medical condition has, or with a high degree of
probability could have, precluded the employee from provid-
ing a sufficient amount of urine”14 or that “[t]here is not an
adequate basis for determining that a medical condition has,
or with a high degree of probability could have, precluded the
employee from providing a sufficient amount of urine.”15 And
in this case, although evidence at trial indicates that Jackson
had been diagnosed with prostatitis a week after the attempted
test, no evidence sufficiently established a causal connection
between this condition and Jackson’s failure to provide a urine
sample for the BNSF drug test.
The office notes of Dr. Robert Graves, a urologist, were in
evidence. He examined Jackson and diagnosed him with pros-
tatitis a week after the BNSF drug test, but the notes do not
state that prostatitis caused (or could have caused) Jackson to
be incapable of providing a urine sample. In fact, in a letter to
Jackson dated January 23, 2003, and forwarded to a medical
review officer for BNSF, Graves said he was unable to “give
a medical explanation for [Jackson’s] inability to give a urine
specimen during the three-hour period” on January 2. Graves
wrote that “the inability to give the urine specimen would be
more related to dehydration rather than from the prostatitis
itself,” and he encouraged Jackson to “drink several glasses of
water” the next time he was required to provide his employer a
urine sample. This opinion was obviously insufficient to meet
the standards set forth by § 40.193(d)(1) for excusing a failure
to provide a urine sample. And an unsupported assertion of
dehydration is specifically excluded as a medical condition that
can excuse the failure to provide a sufficient sample.16 Even if
Jackson’s medical evidence is considered, under the standards
established in the Code of Federal Regulations, Jackson still
“refused,” as a matter of law, to comply with BNSF and federal
regulations requiring drug testing.
14 § 40.193(d)(1).
15 § 40.193(d)(2).
16 See § 40.193(e).
600 	279 NEBRASkA REPORTS

Considering the undisputed facts in this case, we conclude
that the Fund is not required to pay Jackson “held out of serv-
ice” benefits. The district court erred in finding otherwise.
The Fund also argues that the district court erred in using an
improper standard of review, because under the constitution,
“[w]hen the cause for discipline in the employer’s official
notification is excluded from benefits hereunder, no benefits or
compensation shall be paid by the Organization, even though
it may appear such discipline was erroneously assessed, and
the member’s redress for such discipline shall be against
the employer.” The Fund argues that under this provision, if
Jackson was erroneously found to have refused a drug test, his
remedy was against BNSF, not the Fund.17 Given our resolution
of the first assignment of error, however, we need not address
this assignment of error.
And the award of attorney fees and costs to Jackson
was based upon his obtaining a judgment against the Fund.
Because we have concluded that the court erred in finding
that Jackson was entitled to benefits under the constitution,
we also conclude Jackson was not entitled to attorney fees
and costs.
[4,5] Finally, we note, as an aside, Jackson’s argument that
the Fund’s position is barred by a pretrial stipulation. The par-
ties stipulated that Jackson “was ‘held out of service’ from
performing his regular duty for a period of nine months by his
employer.” On appeal, Jackson argues that this means the Fund
stipulated that Jackson fell within the constitution’s definition
of “held out of service,” which excludes willful or intentional
violations of orders, rules, or regulations. But the construction
of a stipulation is a question of law,18 and it is clear from the
record that no one understood this stipulation to be, in effect,
an abandonment of the Fund’s case. Rather, the stipulation
simply meant there was no dispute that Jackson had been sus-
pended. In any event, whether the undisputed facts fell within
the contractual definition of “held out of service” depends on
17 See, e.g., Brandt v. Brotherhood’s Relief and Compensation Fund,
No. 07 C 2204, 2008 WL 4899630 (N.D. Ill. Nov. 12, 2008).
18 Foote v. O’Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001).
JACkSON v. BROTHERHOOD’S RELIEF & COMP. FuND 	601
Cite as 279 Neb. 593

the meaning of the constitution, which is a question of law.19
And parties have no right to stipulate as to matters of law; such
a stipulation, if made, will be disregarded.20 We find no merit
to Jackson’s argument.
CONCLuSION
For the foregoing reasons, we reverse the judgment of the
district court and remand the cause with directions to dismiss
Jackson’s complaint.
reversed and remanded With
directions to dismiss.
19 See Builders Supply Co., supra note 3.
20 City of Omaha Human Relations Dept. v. City Wide Rock & Exc. Co., 201
Neb. 405, 268 N.W.2d 98 (1978).
602 	279 NEBRASkA REPORTS