Seventh Circuit Refuses to Review Arbitrator’s Decision to Allow Expert-Prepared Accident Report

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

Last week, the Seventh Circuit Court of Appeals decided Brotherhood of Maintenance of Way Employees Division/IBT v. Norfolk Southern Railway Company, No. 12-3415 (March 11, 2014). In the case, an employee claimed to have suffered injuries after driving the carrier’s truck over a bump in the road and hitting his head on the ceiling of the cab. The carrier hired an expert to reconstruct the accident, and the expert’s report concluded that it had been an “extremely remote” chance that the bump in the road had caused the employee’s injury. Later, the carrier held an investigative hearing to determine whether the employee had made false statements concerning his injuries. At the investigation, and without disclosing it prior to the hearing, the employer presented the expert’s report. After the investigation, the employee was discharged. The union tried to vacate the employee’s dismissal in court, but was unable to do so.

Subsequently, the union filed a separate lawsuit seeking a permanent injunction to limit the carrier’s use of expert reports in future employee investigations unless certain court-imposed procedures were followed. Specifically, the union wanted the court to require the carrier to disclose expert witnesses to the union before investigations, provide copies of experts’ reports before investigations, present experts at investigations for cross-examination, allow the union to hire its own experts, and qualify the experts under the same standards used in federal court. The district court dismissed the case for lack of jurisdiction, finding that it raised a minor dispute under the Railway Labor Act (RLA).

On appeal, the union argued that the court had had jurisdiction over the matter because it raised a federal question: whether the employer had breached its duty to “maintain agreements” under section 2, ¶ First of the RLA by not providing a fair and impartial investigation, as mandated by the collective bargaining agreement (CBA). The carrier argued its use of an expert report was justified by a discipline rule in the CBA that required a “fair and impartial” investigation prior to any employee discipline or dismissal, but did not specify particular procedures.

Applying the standard set by the Supreme Court of the United States in Consolidated Rail Corp. v. Ry. Labor Executives’ Ass’n, the Seventh Circuit sided with the carrier, holding that the carrier’s actions were “arguably justified” by the terms of the CBA, which was silent on the issues of pre-investigation disclosures, the admissibility of hearsay evidence, and the role of expert witnesses. Moreover, the Seventh Circuit noted that the carrier had introduced evidence regarding the union’s use of expert reports in prior investigative hearings (without making the expert available for cross-examination by the carrier). Accordingly, the case constituted a minor dispute within the exclusive jurisdiction of an RLA Adjustment Board, not the federal courts.

The Seventh Circuit’s decision illustrates the reluctance of courts to insert themselves into disputes between unions and carriers, and supplant the exclusive role that arbitrators play under the RLA in determining whether a party’s conduct violates a CBA. Clearly, the arbitrator in this case could have decided that the carrier’s use of an expert—without prior disclosure or cross-examination—denied the employee a fair and impartial hearing, but he or she did not. The circuit court was unwilling to supplant its opinion for that of the arbitrator’s.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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