was not informed that Filipovic was a Second Division member, a panel member at the time of the deadlock, or one of the division members who sat at the hearing with the referee.
Filipovic recalls that, after the hearing, Suntrup informally asked Hicks and Filipovic if either had anything to say about the case. Both said that they had nothing to add to the parties' presentations. Filipovic states that he had no subsequent personal contact with Suntrup and that he never directly or indirectly tried to influence his decision in this case. In due course, Suntrup completed his decision. He ruled in favor of IAM. Suntrup then sent the decision to the Executive Secretary, who circulated it to the division members, including Filipovic. Filipovic declares that the first time he saw Suntrup's decision was when he received it from the Executive Secretary.
On July 22, 1992 the Second Division held a session to approve Suntrup's decision. Apparently this was not a public session. The referee's ruling in favor of IAM was adopted by a unanimous vote of the six division members who were present. Filipovic did not attend.
According to 45 U.S.C. § 153 First (q), the order of a division can only be set aside (1) for failure of the division to comply with the Railway Labor Act; (2) for failure of the division to remain within its jurisdiction; and (3) for fraud or corruption by a member of the division making the order.
Courts have also recognized a fourth ground for the judicial review of a decision by the NRAB -- denial of due process. See, e.g., Edelman v. Western Airlines Inc., 892 F.2d 839, 847 (9th Cir. 1989) (holding that a constitutional challenge constitutes an independent ground for judicial review of NRAB decisions).
The present case is a difficult one. TWU has not been able to demonstrate, on the present record, fraud or corruption in the usual sense. There has been no showing of bribery or other malign actions to influence the referee or the division members who made the final decision.
However, Filipovic's role involved a conflict of interest of the kind that is completely unacceptable in adjudicative bodies. IAM was one of two contesting parties. Filipovic was a member of IAM and signed the papers filed by IAM arguing its case. He was also a member of the Second Division. He actually participated in the initial step of the proceedings, which resulted in the deadlock and the reference to the referee. He sat as a member of the division during the hearing before the referee. He was a member of the division at the time the vote was taken to approve the referee's decision. Although it appears that he was absent from the session when the vote was taken regarding the referee's decision, and although he did not vote, he did not formally disqualify himself and he was still a member of the division. There is no evidence as to whether he did or did not have informal discussions with other members of the division prior to the vote.
It may be that in fact Filipovic's activity did not influence the decision that was made. IAM has argued that the initial submission resulting in the deadlock was not crucial since apparently deadlocks usually occur, and this step is mainly a formality leading to reference to the referee. It may be that Filipovic, although present to some extent at subsequent proceedings, was passive and did not really attempt to exert influence.
The problem is that these are speculative hypotheses. Without a detailed development of evidence, it cannot really be known how much Filipovic did or did not influence the outcome. There are questions about what influence he had by virtue of signing IAM's papers, and about what influence he had by his mere membership in the division. Also, there is nothing in the present record which excludes the possibility of some informal discussion by Filipovic with the other division members who voted.
TWU has requested discovery on these issues. The request is not unreasonable. However, it is totally anomalous to contemplate the gathering of detailed evidence, by way of discovery and trial, with regard to the processes of an adjudicative body.
The salient fact is that these problems should and could have been entirely avoided by the most elementary attention to proper procedure. Filipovic was required to disqualify himself from participating in any way in the activities of the division in this matter. This disqualification should have been made plain to the division members, to the referee, and to the parties to the dispute.
It is the court's finding that Filipovic's activities corrupted the process and are cause for vacating the order of the NRAB. The matter is remanded to the NRAB for a new proceeding with proper procedural safeguards.
Metro North is to continue the status quo, with IAM members in place, until and unless there is a contrary ruling by the NRAB or further order of the court.
Dated: New York, New York
August 24, 1993
THOMAS P. GRIESA
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