Shafii v. PLC British Airways

• Decision Date: 20 April 1994
• Docket Number: D,AFL-CI,1200,Nos. 600,s. 600
• Citation: 22 F.3d 59
• Parties: 146 L.R.R.M. (BNA) 2147, 62 USLW 2674, 127 Lab.Cas. P 11,077 Seyed N. SHAFII, Plaintiff-Appellant-Cross-Appellee, v. PLC BRITISH AIRWAYS, Defendant-Appellee-Cross-Appellant, International Association of Machinists and Aerospace Workers,istrict Lodge 100, Defendant. ockets 93-7141, 93-7189.
• Court: U.S. Court of Appeals — Second Circuit

Page 59

22 F.3d 59

146 L.R.R.M. (BNA) 2147, 62 USLW 2674,

127 Lab.Cas. P 11,077

Seyed N. SHAFII, Plaintiff-Appellant-Cross-Appellee, v. PLC BRITISH AIRWAYS, Defendant-Appellee-Cross-Appellant International Association of Machinists and Aerospace Workers, AFL-CIO, District Lodge 100, Defendant.

Nos. 600, 1200, Dockets 93-7141, 93-7189.

United States Court of Appeals Second Circuit.

Submitted Jan. 25, 1994.

Decided April 20, 1994.

Seyed N. Shafii, pro se.

Harry N. Turk, New York City, Kenneth W. DiGia, Epstein Becker & Green, P.C., for defendant-appellee PLC British Airways.

Before: WALKER and JACOBS, Circuit Judges, and DALY, District Judge. ^*

WALKER, Circuit Judge:

Plaintiff Seyed N. Shafii brought suit against his former employer PLC British Airways ("British Air") and his former union, the International Association of Machinists & Aerospace Workers, AFL-CIO, District Lodge 100 ("Union"), which per stipulation is no longer party to this action, to vacate an arbitration award in British Air's favor rendered pursuant to the Railway Labor Act, 45 U.S.C. Sec. 151 et seq. ("RLA"). Plaintiff now appeals, pro se, from a judgment of the United States District Court for Eastern District of New York (John R. Bartels, Judge ), granting summary judgment for British Air because the only evidence offered by plaintiff in support of his claim that the award should be vacated for a denial of due process constituted inadmissible hearsay. British Air cross-appeals from the same judgment as well as an earlier ruling of the United States District Court for the Northern District of New York (Neal P. McCurn, Judge ), both of which held that the district court had jurisdiction over plaintiff's action. British Air contends that jurisdiction to review an arbitration award is limited by 45 U.S.C. Sec. 153 First (q) to the grounds specified therein, and that denial of due process, the claim at issue, is not one of these grounds.

For the reasons stated below, we vacate the judgment below and remand this matter to the district court for further proceedings consistent with this opinion.

BACKGROUND

Plaintiff was a Reservation Sales Agent for British Air. On January 30, 1989, British Air discharged him for insubordination, and plaintiff promptly filed a grievance through the Union. Pursuant to the collective bargaining agreement, the plaintiff and British Air agreed to bypass the System Board of Adjustment and proceed directly to arbitration.

The arbitration was held on January 25, 1990; plaintiff was represented by his own attorney, Ira Kazlow, as well as the General Chairman of the Union. Plaintiff, through his attorney, presented numerous witnesses, conducted cross-examination of British Air's witnesses, and filed a post-hearing brief. The hearing was transcribed upon agreement of the parties by a certified shorthand reporter. The mutually selected arbitrator rendered his decision on May 7, 1990, upholding plaintiff's discharge.

On August 7, 1990, the plaintiff filed a Verified Petition in the United States District Court for the Northern District of New York to set aside the arbitration award, pursuant to 45 U.S.C. Sec. 153 First (q). Plaintiff claimed that he was denied due process in the arbitration proceeding. Specifically, he alleged that the arbitrator, during off-the-record conversations, denied his attorney's request to present one witness and several documents during the proceeding. The proffered witness was Jodi DeVido-Esaili, a Union shop steward who allegedly was present during plaintiff's disciplinary hearing held on January 24, 1989 and a subsequent investigative hearing on January 30, 1989. The two documents allegedly offered were the minutes Plaintiff submitted proof of the arbitrator's exclusion of this evidence in the affidavit of Michael McAllister, a Union shop steward who attended the arbitration hearing. McAllister's affidavit recounted that the arbitrator had stated more than once that he had to catch a flight at about 6:00 p.m., and that he had to conclude the hearing at 5:00 p.m. Further, the McAllister affidavit stated:

of those two proceedings as recorded by DeVido-Esaili.

Toward the end of the hearing, I heard Ira Kazlow, the attorney who represented Mr. Shafii, tell [the arbitrator] that he wanted to call Jodi DeVido-Esaili ... as a witness. Mr. Kazlow also stated that he wanted to offer two documents as evidence....

McAllister's affidavit stated that the arbitrator declined to hear DeVido-Esaili's testimony or even consider the two documents, purportedly stating that he "had heard enough and that it was too late to get bogged down in technicalities." McAllister posits in his affidavit that the stenographer likely did not record this exchange because the parties were "off the record."

British Air first moved before Judge McCurn to dismiss the plaintiff's Verified Petition for lack of subject matter jurisdiction. British Air argued that an alleged denial of due process is not a permissible basis for vacating an arbitration award under the RLA. Judge McCurn denied the motion and held that judicial review is available "when there has been a denial of due process by some act of the board." Judge McCurn thereafter granted British Air's request to transfer the matter to the Eastern District of New York.

Before Judge Bartels in the Eastern District of New York, British Air reiterated its argument that alleged due process violations are not judicially cognizable, and it further moved for summary judgment on the grounds that the sole evidence adduced by plaintiff in support of his Verified Petition, the McAllister affidavit, constituted inadmissible hearsay. Judge Bartels expressly refused to disturb Judge McCurn's earlier ruling that a denial of due process in an RLA arbitration was reviewable, but he granted the motion for summary judgment on the basis that the McAllister affidavit was inadmissible hearsay.

Plaintiff appeals from Judge Bartels's decision to grant summary judgment to British Air. British Air cross-appeals from the holding that the district court had jurisdiction to review the arbitration award on due process grounds.

DISCUSSION

I. Reviewability of Denials of Due Process

We note at the outset that the parties agreed to proceed directly to voluntary binding arbitration and bypass the System Board of Adjustment set up pursuant to 45 U.S.C. Sec. 153 Second, the voluntary counterpart to the mandatory National Railroad Adjustment Board ("NRAB" or "Board"), created under the RLA Sec. 153 First. See Baylis v. Marriott Corp., 843 F.2d 658, 662 (2d Cir.1988). However, this fact does not affect our analysis. Because the arbitrator occupies the position of the statutorily-created NRAB, he or she is subject to the same statutory and constitutional constraints as the NRAB. See, e.g., Chernak v. Southwest Airlines Co., 778 F.2d 578, 580 (10th Cir.1985) (stating that Sec. 153 First (q)'s "narrow scope of review applies equally to judicial review of awards made by" an arbitrator selected "by an agreement of the parties"); Brotherhood of Ry., Airline & S.S. Clerks v. Jacksonville Terminal Co., 591 F.2d 1387, 1390 (5th Cir.1979) (per curiam) ("[I]t is settled that voluntary arbitration awards can be reviewed and the scope of review by the Court is the same as that applied to statutory arbitration awards.").

We begin our inquiry by examining the language of the statute. The NRAB is composed of four divisions, each with particular jurisdiction over distinct matters. See 45 U.S.C. Sec. 153 First (h). Section 153 First (q) provides for judicial review of decisions rendered by divisions of the NRAB. This provision lists three grounds upon which courts have jurisdiction to disturb an order of an NRAB division:

(1) "for failure of the division to comply with the requirements of [the RLA]" (2) "for failure of the order to conform, or confine itself, to matters within the scope of the division's jurisdiction"; or

(3) "for fraud or corruption by a member of the division making the order."

Despite this narrow language, courts historically reviewed NRAB proceedings to ensure that a participant's rights to due process were not violated. See D'Elia v. New York, N.H. & H. R.R., 338 F.2d 701, 702 (2d Cir.1964) (per curiam), cert. denied, 380 U.S. 978, 85 S.Ct. 1340, 14 L.Ed.2d 272 (1965); see also Kotakis v. Elgin, J. & E. Ry., 520 F.2d 570, 574 (7th Cir.), cert. denied, 423 U.S. 1016, 96 S.Ct. 451, 46 L.Ed.2d 388 (1975); Rosen v. Eastern Air Lines, 400 F.2d 462, 464 (5th Cir.1968), cert. denied, 394 U.S. 959, 89 S.Ct. 1307, 22 L.Ed.2d 560 (1969). In D'Elia, after reviewing the plaintiff's claim of a denial of due process during his NRAB hearing, we affirmed the district court's ruling that plaintiff was not denied due process: "D'Elia's conclusory allegations as to a denial of due process are wholly insufficient to resist the defendants' motion for summary judgment." 338 F.2d at 702.

Subsequent confusion on this issue was engendered by the Supreme Court's decision in Union Pacific Railroad v. Sheehan, 439 U.S. 89, 99 S.Ct. 399, 58 L.Ed.2d 354 (1978). In Sheehan, an employee claimed that he was denied due process because the NRAB rejected his argument that the limitations period for his claim should have been tolled during the period his claim was pending in state court prior to an intervening change in the law that mandated that such claims be brought exclusively before the NRAB. See Andrews v. Louisville & Nashville R.R., 406 U.S. 320, 92 S.Ct. 1562, 32 L.Ed.2d 95 (1972), overruling Moore v. Illinois Cent. R.R., 312 U.S. 630, 61 S.Ct. 754, 85 L.Ed. 1089 (1941). Dismissing Sheehan's petition, the district court ruled that it could not disturb the NRAB's decision without violating the RLA because the respondent had failed to offer any grounds under Sec. 153 First (q) that would give the court power to review his claims. The Tenth Circuit reversed. 576 F.2d 854 (10th Cir.1978). It held that the NRAB's...