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SHAFII v. BRITISH AIRWAYS

January 9, 1995

SEYED N. SHAFII, Plaintiff, against BRITISH AIRWAYS and INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, AFL-CIO, DISTRICT LODGE 100, Defendants.

J R Barlets, UNITED STATES DISTRICT JUDGE


The opinion of the court was delivered by: J R BARLETS

In this action to review an arbitration award rendered pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq. (the "RLA"), defendant British Airways moves this Court under Rule 56 of the Federal Rules of Civil Procedure for summary judgment. *fn1" For the reasons set forth below, defendant's motion for summary judgment is granted and the action is dismissed.

 Background

 This Court then addressed defendant's motion for summary judgment in Shafii v. British Airways, 799 F. Supp. 292 (E.D.N.Y. 1992), vacated and remanded, 22 F.3d 59 (2d Cir. 1994). In opposition to defendant's motion, Shafii offered only the affidavit of Michael McAllister (the "McAllister Affidavit"), a Union shop steward who attended the arbitration hearing. In his affidavit, McAllister avers that he overheard the arbitrator refuse to admit testimonial and documentary evidence proffered by Shafii's counsel. Specifically, McAllister quotes the arbitrator as saying that he had "heard enough and that it was too late . . . to get bogged down in technicalities." McAllister Affidavit, P 6. This Court found it unnecessary to decide the merits of plaintiff's due process claim, however, in light of its holding that McAllister's recitation of the arbitrator's statements constituted inadmissible hearsay. Without McAllister's hearsay statements, the foundation for Shafii's due process claim evaporated, warranting a grant of summary judgment in favor of British Airways.

 The Court of Appeals for the Second Circuit vacated this Court's holding in Shafii v. British Airways, 22 F.3d 59 (2d Cir. 1994). There the Second Circuit held that McAllister's recitation of the arbitrator's alleged remarks was not hearsay because McAllister's testimony was "not offered for the truth that [the arbitrator] had in fact heard enough or that it was in fact too late to get bogged down in technicalities, but rather for the fact that these were the reasons given for refusing plaintiff's request." 22 F.3d at 65. The Court of Appeals then remanded to this Court the issue of "whether plaintiff's allegations, taken as true, would constitute a denial of due process that would warrant vacating the arbitration ruling." Id. Assuming McAllister in fact overheard the arbitrator utter the alleged statements, and drawing all other reasonable inferences in plaintiff's favor, Coach Leatherware Co. v. Ann Taylor, Inc., 933 F.2d 162, 167 (2d Cir. 1991), the Court now must determine whether the arbitrator's conduct violated Shafii's constitutional rights.

 Discussion

 1. The RLA Does Not Accord Plaintiff the Right to a Jury Trial

 Although his motion papers do not address the issue, at a status conference held before this Court on June 24, 1994, plaintiff asserted the right to try his employment grievance before a jury in the event the Court vacates the arbitration award. Section 3 First (q) of the RLA (45 U.S.C. § 153) sets forth clear limitations on the scope of judicial review, granting the district courts the option of affirming or setting aside an arbitration award or remanding the proceeding to the arbitrator. Nowhere does the statute empower the reviewing court to order a trial, whether before a court or a jury. Moreover, the Court of Appeals for the Second Circuit has held that the right to trial by jury as guaranteed by the Seventh Amendment does not extend to situations where, as here, "Congress has seen fit to set up an administrative procedure for adjudication of disputes arising out of statutorily created rights." Skidmore v. Consolidated Rail Corp., 619 F.2d 157, 159 (2d Cir. 1979) (relying on Atlas Roofing Co. v. Occupational Safety Comm'n, 430 U.S. 442, 460, 97 S. Ct. 1261, 1271, 51 L. Ed. 2d 464 [1977]), cert. denied, 449 U.S. 854, c 101 S. Ct. 148 (1980). Accordingly, Shafii enjoys no right to try his claim before a jury.

 The Court's function on the present motion is to perform a limited review of the manner in which the arbitrator conducted the proceeding. The scope of judicial review of arbitration awards rendered pursuant to the RLA is "'among the narrowest known to the law.'" CSX Transp., Inc. v. United Transp. Union, 950 F.2d 872, 877 (2d Cir. 1991) (quoting Union Pacific R.R. Co. v. Sheehan, 439 U.S. 89, 91, 99 S. Ct. 399, 401, 58 L. Ed. 2d 354 [1978]); American Fed'n of R.R. Police, Inc. v. National R.R. Passenger Corp., 1989 U.S. Dist. LEXIS 3475, 112 Lab. Cas. (CCH) P 11,388 (E.D.N.Y. 1989). The court's "power is circumscribed sharply," Skidmore, 619 F.2d at 159, and is limited to inquiring only "'whether the arbitrators did the job they were told to do -- not whether they did it well, or correctly, or reasonably, but simply whether they did it.'" CSX Transp., Inc., 950 F.2d at 877 (quoting Brotherhood of Locomotive Engineers v. Atchison, Topeka and Santa Fe Ry. Co., 768 F.2d 914, 921 [7th Cir. 1985]).

 Shafii petitions to set aside the arbitration award on due process grounds. The Court of Appeals for the Second Circuit has held that in the context of a statutory scheme invoking compulsory arbitration, "'due process is flexible and calls for such procedural protections as the particular situation demands.'" Lyeth v. Chrysler Corp., 929 F.2d 891, 895 (2d Cir. 1991) (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S. Ct. 2593, 2600, 33 L. Ed. 2d 484 [1972]). Due process in the arbitration context typically requires no more than provision of a "fair hearing." NLRB v. Washington Heights Mental Health Council, Inc., 897 F.2d 1238, 1244 (2d Cir. 1990). The courts consider an arbitration proceeding fair if, in general, each party has had "sufficient opportunity to prepare its case . . . and the opportunity to call and cross-examine witnesses and to present pertinent evidence in support of its case." Id. at 1244-45 (citations omitted). See also Grannis v. Ordean, 234 U.S. 385, 394, 34 S. Ct. 779, 783, 58 L. Ed. 1363 (1914) (the "fundamental requisite of due process of law is the opportunity to be heard"). Where, as here, a due process challenge questions the propriety of an evidentiary ruling, the reviewing court will sustain the award absent a showing that the evidentiary error so prejudiced the rights of a party that it may be said that he was deprived of a fair hearing. Newark Stereotypers' Union No. 18 v. Newark Morning Ledger Co., 397 F.2d 594, 599 (3d Cir.), cert. denied, 393 U.S. 954, 89 S. Ct. 378, 21 L. Ed. 2d 365 (1968). Accord Forsythe Int'l, S.A. v. Gibbs Oil Co., 915 F.2d 1017, 1023 (5th Cir. 1990); National Post Office Mailhandlers v. United States Postal Serv., 751 F.2d 834, 841 (6th Cir. 1985).

 Shafii's proof fails to support the alleged due process violation. Careful review of the transcript of the arbitration proceeding reveals that plaintiff was accorded a full and fair opportunity to present his case. Shafii was represented both by independent counsel and a Union representative at the arbitration hearing. The record clearly shows that plaintiff's counsel was afforded ample opportunity to present supporting evidence, argue the merits of Shafii's grievance, cross-examine defendant's witnesses, and formally note objections on the record. See, e.g., Transcript of January 25, 1990 Arbitration Proceeding ("Tr.") at pp. 13-16, 20-23, 78-79, 80-83, 92. Although plaintiff asserts that the arbitrator capriciously denied him the right to introduce what he claims is crucial evidence -- the minutes of two disciplinary hearings and the testimony of Jodi Devido-Esaili, a shop steward -- the record contains no attempt by plaintiff or his counsel to call Devido-Esaili, and, as defendant cogently observes, plaintiff's counsel actually introduced into evidence the minutes of one of the subject disciplinary hearings, but then later voluntarily withdrew the document. Tr. at pp. 184-85, 192. Moreover, the transcript reflects that when asked by the arbitrator if he had any additional evidence to present, plaintiff's counsel unequivocally answered in the negative and rested his case. Tr. at p. 202. No objection to the alleged exclusion of the subject evidence was noted at that time. Indeed, the record remains utterly bereft of any objection -- by plaintiff, his counsel, or his Union representative -- to the exclusion of evidence or the manner in which the arbitrator was conducting the proceeding. Approximately six weeks after conclusion of the arbitration, plaintiff's counsel submitted to the arbitrator an extensive post-hearing brief which pursued several lines of argument challenging the merits of the insubordination charge underlying plaintiff's termination. Again, Shafii's post-hearing brief entirely ignored any discussion of arbitrator partiality or improper exclusion of evidence. *fn2"

 Assuming Shafii adequately demonstrated that the arbitrator improperly excluded evidence, the petition still fails to establish that plaintiff was denied due process of law. In order to sustain his constitutional challenge, plaintiff must establish that the refusal to admit the subject evidence was incorrect and that such exclusion prejudiced the plaintiff, depriving him of a fair hearing. See Newark Stereotypers' Union No. 18, 397 F.2d at 599; Forsythe Int'l, 915 F.2d at 1023; National Post Office Mailhandlers, 751 F.2d at 841. Here, plaintiff has failed to demonstrate both. Shafii asserts that Devido-Esaili's testimony and the minutes of the prior disciplinary hearings were necessary to complete presentation of his case. He claims that the testimony would have had a "tremendous impact on the outcome" of the hearing, Plaintiff's Memorandum of Law, dated July 22, 1994 ("Plaintiff's Brief"), p. 25, in that the proffered testimony would have "negated the detrimental effect" of the testimony provided by defendant's witnesses. Plaintiff's Brief, p. 7. The Court fails to see the dire need for this evidence. At the arbitration hearing, plaintiff's counsel introduced documentary evidence, offered the testimony of plaintiff and his co-workers Michael McAllister and Carol Creamer, presented oral and written argument, and thoroughly cross-examined each of defendant's witnesses. The cross-examination of defendant's witnesses alone was sufficient to "negate" any "detrimental effect" their ...


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