Gonzalez v. Southern Pacific Transp. Co.
| Decision Date | 15 October 1985 |
| Docket Number | No. 84-1149,84-1149 |
| Citation | 773 F.2d 637 |
| Parties | 121 L.R.R.M. (BNA) 2375, 103 Lab.Cas. P 11,715 Armando GONZALEZ, Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Western District of Texas.
ON PETITION FOR REHEARING
(Opinion March 28, 1985, 5th Cir.1985, 755 F.2d 1179).
Before RUBIN, TATE, and HILL, Circuit Judges.
While the suggestion for rehearing en banc was pending following the publication of our opinion, 1 Gonzalez pursued his administrative remedies to culmination by arbitration. The arbitrator resolved the sole factual issue on which we had intended to remand the case and ordered Gonzalez reinstated. Although the arbitrator's conclusions neither moot nor estop Gonzalez's claims in this court, they do raise the question whether we should defer to the arbitrator's findings, consistent with Congress's command that arbitration awards in employment disputes be final and binding. We now hold that, under the specific facts of this case, deference to the arbitrator's finding of fact is appropriate and it is no longer necessary to remand the case, or even to reach the issue of statutory interpretation discussed in our earlier opinion. We, therefore, withdraw our earlier opinion and affirm on different grounds the district court's dismissal of Gonzalez's case.
On August 26, 1983, an employee of Southern Pacific was told by his doctor that he had a hernia requiring expensive surgical repair. The employee filed an accident report with his employer the same day, describing an accident that supposedly occurred on August 15 and caused his hernia. On August 17, before going to the doctor, the employee had asked his friend and coworker, Armando Gonzalez, to feel a bump on his chest. When the employee filed his report on the 26th, he asked Gonzalez to file an additional report supporting his claim. Although Gonzalez was not at work when the accident supposedly occurred, he filed a report on August 27 that implied that Gonzalez had witnessed the accident.
The front of Gonzalez's report was dated August 15, 6:30 a.m. to 2:30 p.m. shift, although the date of August 27 appears under Gonzalez's signature on the back. In answer to the question on the report, "Where were you when accident occurred," Gonzalez replied, "Right next to his unit 2673 on unit." However, in response to the inquiry, "State how the accident occurred," Gonzalez described no events that occurred on August 15, but replied that the injured employee "was working by himself" and that on August 17, the employee was working "by himself again, that's when he ask [sic ] me ... to see if I could feel something in his right side, under the right hand shirt pocket, and I could feel a small bump." Gonzales also described conversations that occurred after the 17th discussing his friend's hernia.
The accident report of the injured employee is similarly ambiguous, listing Gonzalez as a witness, but stating that the employee was working alone when the accident occurred. Gonzalez claims that he did not knowingly or intentionally file a false report. He meant to attest only events that occurred after the injury but misunderstood the responses called for by the form.
After a company investigation and hearing, the railroad concluded that Gonzalez's report was false and discharged him for dishonesty. Under the terms of the collective bargaining agreement between the railroad and his union, Gonzalez filed a grievance seeking reinstatement and back pay.
At the same time, Gonzalez brought an action in district court for a preliminary injunction to prevent the railroad from dismissing him or withholding his pay. Gonzalez based his claim on a right of action implied from 45 U.S.C. Sec. 60. The full text of the statute is set forth in the footnote 2 but, in relevant part, it provides Any ... rule ... or device whatsoever, the ... effect of which shall be to prevent employees of any common carrier from furnishing voluntarily information to a person in interest as to the facts incident to the injury or death of any employee, shall be void, and ... whoever discharges or attempts to discipline any employee for furnishing voluntarily such information to a person in interest, shall, upon conviction be punished by a fine of not more than $1,000 or imprisoned for not more than one year, or ... both...."
The district court dismissed Gonzalez's claim for lack of jurisdiction, holding that the term "person in interest," as used in the statute, does not include railroad employers and, therefore, that Sec. 60 does not create an implied cause of action when an employee has been disciplined for furnishing information to his employer. Gonzalez appealed to this court.
Our opinion held that, absent ambiguity, statutes are to be interpreted according to their plain meaning and without resort to the uncertainties of legislative history. We found that the plain meaning of the statutory phrase "person in interest" necessarily included the railroad but that the furnishing of information known to be false, with deliberate deceptive intent, would not fall within the protection of the Act. 3 We therefore remanded the case to the district court to resolve the single determinative factual issue: whether Gonzalez knowingly filed a false accident report with the intention of deceiving the railroad.
After publication of our opinion, Southern Pacific promptly filed a suggestion for rehearing en banc, joined by the Association of American Railroads as amicus curiae. Issuance of our mandate was stayed while the suggestion for rehearing remained under consideration.
During this time, Gonzalez's grievance proceedings progressed to arbitration under the terms of the Railway Labor Act. 4 The arbitrator found that Gonzalez had been "responsible for a major violation of [the] carrier's rules" and that the report was false. Because of Gonzalez's favorable employment record, and because he did not stand to make any personal gain by his violation, the arbitrator ordered Gonzalez reinstated, but without back pay. We requested supplemental briefs from both parties addressing the effect we should give the arbitrator's decision.
Both Gonzalez and Southern Pacific agreed that the arbitrator's decision does not moot this appeal. Gonzalez's request for nearly two years of back pay remains unsatisfied. As we wrote, facing a nearly identical situation in Hendley v. Central of Georgia Railroad, 5 "[t]he continued denial of back pay for the year that Hendley was unemployed is a present unlawful interference with Hendley's right of employment, and constitutes a continuing violation of Sec. 60" that justifies an implied action in federal court for an injunction. 6 Even though, for reasons set forth below, we do not find it necessary to decide whether Gonzalez had a protected right under Sec. 60, a live controversy remains between the parties.
Although the arbitrator's decision does not end the matter, Southern Pacific urges that any remand would offend congressionally declared policies of deference to, and finality of, arbitration proceedings in labor disputes subject to collective bargaining agreements. We now grant a panel rehearing to address this issue and to respond to the arguments raised in the supplemental briefs.
Southern Pacific has sought rehearing en banc, not by the panel. Nevertheless, a suggestion for rehearing en banc remains within the plenary control of the panel deciding the case unless voted en banc by a majority of active circuit judges. As the Internal Operating Procedures of the Fifth Circuit provide, 7
Our Internal Operating Procedures demarcate the circumstances appropriate for rehearing en banc and for panel rehearing. En banc consideration is 8
The issues raised by Southern Pacific's brief and the question of deference to arbitral findings of fact are properly within the ambit of a panel rehearing and do not warrant consideration en banc.
In Hendley we held that Sec. 60 protects an employee from formal investigation, discharge, or loss of pay after reinstatement, for assisting in the investigation of an injury to a fellow employee and giving a deposition to be used in the fellow employee's case. 9 Specifically, we stated, "[i]f an employee can show that the object of a railroad's investigation is to discipline the employee for furnishing information in an FELA case, ... injunctive relief by a federal district court is 'appropriate if not compelled,' " and that "a district court's ability to enjoin a hearing or conduct which violates Sec. 60 is essential to effectuate the purpose of the section." 10
As we interpreted Sec. 60 in Hendley, its purpose is to prohibit the "overwhelming coercive effect" that disciplinary actions by railroads have on an employee's willingness to testify in a FELA case, notwithstanding the availability of grievance procedures that might later remedy the specific disciplinary action taken against the employee:
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