Daniel L. Kulavic, Cross-Appellee v. Chicago & Illinois Midland Railway Company

RIPPLE, Before FLAUM and Circuit Mr. Kulavie was involved an altercation Judges, KAUFMAN, Senior District during supervisor which his physically as- Judge.* saulted him. Mr. Kulavie supervisor and his had disagreed proper over the method RIPPLE, Circuit Judge. testing air brakes on railroad ears submitted Daniel Kulavie was an to department the car for inspection. After Chicago & Railway Illinois Company Midland discussion, heated supervisor attacked (C IM) injured he job when was on in behind, Mr. Kulavie from punching and kick- a physical altercation supervisor. with his ing him and causing him to fall on a brake Subsequently, his employment was terminat- beam.1 Mr. injured Kulavie was in this inci- ed when he failed to follow request C & IM’s dent. conduct, Because of their C & IM report and, to view, work in the company’s temporarily suspended both Mr. Kulavie and sufficient evidence, medical supervisor his duty. from Suffering from excuse his pursued absence. Mr. Kulavie injuries attack, incurred Mr. Kulavie under relief the Railway (RLA), Labor Act began consulted and treatment with several §§ (1988), 45 U.S.C. 151-188 but his termi- different doctors. He was treated for abra- nation upheld. was He brought then suit in sions to right forearm, his arm, left and left federal court under the Federal Employers’ leg. Over the course several months, he Liability (FELA), Act §§ 45 U.S.C. 51-60 was also treated pain, for rib temporal man- (1988), injuries for recover sustained in the joint dysfunction, dibular tinnitus, and ex- supervisor. incident with his The district nervousness, treme anxiety, depression, court, however, determined that Mr. Kulavie allegedly all stemming from the altercation was barred presenting any from evidence of supervisor. with his wages, benefits, future lost and earning ca- pacity from the date of his discharge. The Mr. suspension Kulavic’s work was set to court held that Mr. Kulavie precluded was January 6,1986, on terminate January on but presenting the issue of these damages 2, Mr. Kulavie advised the head of his de- jury in his FELA action because the partment, Bast, by Hal letter that he was issue had been resolved proceed- RLA still under his doctors’ care and would be ings. F.Supp. 137. Although unable to return to work. R. 2 at the FELA ultimately action awarded dam- Carrier’s Ex. C. Mr. Kulavie informed Bast ages Kulavie, to Mr. he moved for a new trial that he would advise railroad when he or, on damages alternative, judg- was able to return. 3,1986, Id. January On ment notwithstanding the verdict and addi- general C & IM’s surgeon, Dr. John Meyer, tur. The district court denied the motion examined Mr. Kulavie to determine whether and Mr. appeals. Kulavie now C & IM also he physically capable was of returning to appeals from several evidentiary rulings the work. Meyer Dr. requested also that Mr. district court during made Kulavie make available all medical records phase of trial. We reverse the judgment of compiled by any doctors who had examined the district court and remand for a new trial him during treated suspension. his work on damages. C & cross-appeal IM’s is dis- Based on the examination and the informa- missed. tion he received from some of Mr. Kulavic’s treating physicians, Meyer Dr. had come to

I conclusion, by the beginning of June BACKGROUND 1986, that Mr. capable Kulavie was of re- turning to work. A. Facts Mr. employed Kulavie was C & IM as a Bast then notified Mr. Kulavie that he was carman. at work August While report 9, 1986, for work on June because * Kaufman, The Honorable trial, Frank A. Senior Dis- 1. In a supervisor state Mr. Kulavic's was Judge trict for the Maryland, District sitting guilty battery. found by designation. Kulavic at- employees. Mr. railroad regular were approved him Meyer had Dr. represented was proceedings and tended part 3 at B. On R. as a carman. work medical Mr. Kulavic’s union official. however, Kulavic did day, Mr. appointed correspondence physicians’ and his instead, records work; telephoned report not was allowed Mr. Kulavic were examined him and informed foreman general car case to the railroad. present his yet been sick and had was still that he part 3 C. R. doctor. released later, Hearing sent Officer days Ten notifying Kulavic a letter Mr. then sent Bast findings of detailing the Kulavic a letter Mr. unless not valid that his excuse him informing Mr. Kulavic investigation and from a prove by medical you can employment. IM terminated that C & had you physically physician reputable that none of concluded Hearing Officer The date, each date and to work unable investigation at the presented the evidence your return to prior to you are absent absence; Kulavic’s work Mr. served to excuse as always, final determination As service. present sufficient failed to Kulavic had Mr. mental physical and employe’s [sic] to an inability to return to of his evidence medical compa- made the ability will be to work 54, part 5. R. work. ny physician. by the procedures to con- the dictated no but Pursuant to alternative We will have RLA, to a appealed until his dismissal permission Mr. Kulavic you absent without sider (PLB). that work, claimed or show Board He you return to Public Law time as such the collective bar- why you cannot. had violated the railroad by medical evidence (CBA) unfairly dis- gaining agreement response, Mr. Kulavic D. In part R. 3 at rail- him, alleged that and he missing report an insurance to & IM submitted C improper and had been investigation road’s physi- his filled out an attachment with Thus, that his unjust. Mr. Kulavic submitted cian, determined the railroad but him and restored to employment should be required standard meet the did not document benefits, plus inter- other wages and all his physi- reputable from of “medical evidence R. est, granted to him as relief. should to return you physically unable are cian PLB, majority 1. A part 8 at Thus, K. Mr. 3 at R. section to service.” with however, to interfere found no reason be excused absences could not Kulavic’swork of Mr. Kulavic’s termination the railroad’s continuing disabili- of his on the basis The PLB stated: employment.2 Kulavic to Bast advised Mr. ty. On June investigation and IM for an report to C & review, investigation Upon we find hearing to man- impartial in a fair and was conducted facts, if your responsibility, develop and agreement of claimant’s ner. None alleged failure your any, in with connection ob- We have considered was violated. instructed, your ... report for work to not find Organization and do jections of the ... permission, alleged absence without significance to invalidate them of sufficient notify timely your alleged failure to proceedings. on you be absent your supervisor was adduced Substantial 12, 13, 16, 10, 11, June charge support investigation in representation, You entitled no evidence There was against claimant. your behalf present own witnesses investigation that claim- presented in any witness- examine and cross-examine ser- being from Carrier’s withheld ant was investigation and at such appearing es It from by any is clear vice doctor. hearing. attempting to was that claimant record LL. Ex. R. 7 at Carrier’s opinion as to his personal his substitute profession- ability to work for July to return on hearing held investigative The medical doctors opinions the several al IM and both 15,1986, premises of C Hearing involved. Officer Interrogator and majority's award. PLB dissented 2. The labor member

5H Thus, Id. at 4. the PLB denied Mr. Kulav- Kulavie had no wages future upheld ic’s claim and the railroad’s compensation termi- for loss of earning capacity nation. Mr. Kulavie appeal did not from the because he was able to return to work. Al- award. lowing Mr. Kulavie argue jury wages, benefits, had lost and earning ca- B. District Court Proceedings: The FELA pacity subsequent to would, his termination Action concluded, district court nullify the August On Mr. Kulavie filed an decision, PLB’s thus ignoring the finality action in federal alleging liability such given by decisions are the RLA. See 45 against C & IM under the FELA. See 45 (m) U.S.C. 153 First and 153 Second. Ad- §§ U.S.C. 51-60. sought Mr. Kulavie re- ditionally, the district court stated giving injuries dress for the he had sustained in the decision effect in a subse- with supervisor. altercation his Mr. Kulavie quent FELA action deny Mr. Kulavie claimed that C & IM negligently caused, statutory right injuries, redress part, least in injuries. his numerous Op. 10; Mem. at Mr. Kulavie was allowed to district court bifurcated the trial into a liabil- present to jury evidence regarding past ity phase and a damages phase. In the bills, future medical pain and suffering, liability phase, found C & eighty- IM disability resulting from injury, and lost percent five negligent and Mr. Kulavie fifteen earnings between the time of injury and the percent negligent injuries. Thus, for his the date discharge. Thus, the court held that responsible railroad was eighty-five per- compensation under the FELA was not en- any cent of damages that the jury might tirely foreclosed. award to Mr. Kulavie in the phase second Subject to C & limine, IM’s motion in the

trial. damages phase of Mr. Kulavie’s case was liability, Prior to trial on C & IM had tried to jury. filed jury the $75,000 awarded a motion $63,750 in limine seeking damages, to bar Mr. Kulavie respon- which was the from seeking sibility earnings, benefits, lost fringe parties Both railroad. then and earning post-trial loss of submitted capacity from the date of motions. Mr. Kulavie discharge moved for a new damages or, onward. C & trial argued IM in the alternative, judgment these damages already notwithstanding been addressed the verdict and additur. and C & resolved the IM also PLB moved for when it reviewed a new damages or, trial on alternative, in the railroad’s dismissal of Mr. Kulavie. The to alter or amend judgment district agreed court reflect granted the rail- certain setoffs and liens. The district road’s court However, motion. after denied all of the parties motions and both brought allocations, back the negligence but appeal. now Mr. Kulavie contends that the prior to damages, trial on the district court district court erred prohibited when it him revisited the preclusive issue of the effect of from presenting certain economic damages to the PLB’s decision. Because the court be- jury. He asserts that determinations lieved question be important both pursuant made to RLA-mandated arbitration litigation novel, it parties ordered the given should not preclusive be effect in a supplemental to submit briefs on the issue. separate FELA action. In its cross-appeal, 2, April On again the district court C & IM raises alleged several evidentiary ruled that the precluded PLB’s decision errors made the district in the availability of some of Mr. alleged Kulavie’s damages phase of trial and contends that damages economic in the FELA claim. R. certain set-offs should have been assessed Op. Mem. at that, 10. The court found against the damages amount of awarded Mr. course the PLB’s review of the rail- Kulavie. investigatory road’s hearing, the PLB had examined Mr. Kulavic’s medical records and II

physicians’ reports and had determined that ANALYSIS Mr. Kulavie physically capable of re- turning work. According court, to the Mr. that, acknowledges Kulavie under the required determination RLA, that Mr. conclusion regarding PLB’s award his dis- 512 (1987); v. Lancaster L.Ed.2d U.S.C. binding. See 45 Norfolk final and missal Cir.1985), 807, 812 F.2d (both Ry., 773 provi- Western (m) Second First § 153 denied, 107 S.Ct. 480 U.S. rt. be final shall “awards stating that ce 1602, sions (1987). Independent Mr. 94 L.Ed.2d dispute”). to the parties both binding on CBA, the its obligations under at- railroad’s not that he is clear also makes Kulavie only not workers provides railroad FELA discharge wrongful relitigate a tempting to negligent against protection with substantive he does Although action. in the FELA claim railroad, but also affords PLB, by the conduct he the decision agree with not needs, remedy to his suited injured relitigate the worker he cannot acknowledges that by many defenses traditional untrammeled discharge was of whether question Buell, U.S. at liability. Instead, against tort CBA. and violative

wrongful thus statute serves 1415. This 107 S.Ct. brought Kulavie states Mr. expedi injured worker with provide an injuries for the suit recover FELA gives a railroad recovery and also tious his su- with altercation in the he sustained over the safe vigilance to maintain incentive injuries ishe He denies pervisor. and, concomitantly, the workers ty of Rely- discharge. to his claiming are related An they work. must in which conditions extensively Gardner- on Alexander ing can recover under injured railroad Co., 94 S.Ct. 415 U.S. Denver negli employer’s long as the the FELA (1974), argues Mr. Kulavie L.Ed.2d slightest, even “played part, gence given should the award which injury ... statutory rights producing federal effect over Rogers v. Missouri sought.” FELA. Pacific embodied 500, 506, R.R., however, awards IM, emphasizes that C & Moreover, (1957). FELA L.Ed.2d binding on PLB are final by the made at least interpreted to reach also has been that an It states dispute. parties both Lancaster, 773 See torts. intentional some be RLA cannot under the issue resolved therefore, is, a FELA at The F.2d 812. Con- judicial forum. separate in a relitigated lib to be construed statute broad remedial under rendered decisions gress intended that purpose. its effectuate erally order to IM, and, according to C & be final the RLA 562, at 1414. Buell, 107 S.Ct. at U.S. 480 the FELA relitigation under allowing Moreover, & IM intent. C frustrate decision court’s the district contends to achieve RLA was established Mr. not eliminate preclusion did regarding goal. Enacted altogether different FELA. recovery under the right to Kulavic’s 1926, admin provides extensive the RLA Mr. portion a only The court disallowed dis resolving labor framework istrative allowing the damages, while Kulavic’s Id. Under industry. in the railroad putes Thus, IMC & the rest. jury to consider involving RLA, disputes minor correctly respected —those believes district employ daily between that arise “grievances by finding PLB’s award finality of the pay, rates of regarding carriers ees asking precluded Mr. Kulavie conditions,” i.e., disputes rules, working wages, damages due to lost jury for be resolved operative CBA—are under the after benefits, capacity incurred earning (i). § 153 First See 45 U.S.C. out of court. his termination. stability manner, promoted Congress In this creating a industry by manda railroad RLA FELA and A. The Frameworks rail judicial resolution tory alternative arising out of disputes road-employee originally enacted Congress R.R. Union of CBAs. interpretation Pacific remedy for create a federal in 1906 to FELA 402, 399, 94, Sheehan, 99 S.Ct. 439 U.S. v. job by the injured on the employees railroad (1978). 354 L.Ed.2d co employers their of their negligence RLA, dispute minor a Buell, Pursuant Atchison, Ry. v. T. S.F.& workers. railroad’s through the handled be must first dispute usual procedures. internal resolution should fall purview under the RLA, usually This of an investigation consists held Supreme Court has noted that “absent an premises. on the railroad’s If dispute intolerable conflict statutes, between the two unsettled, remains party may submit it to we unwilling to read the RLA repeal- Adjustment National Railroad Board ing any part of the FELA.... As far aas (NRAB) (which or to a PLB merely is worker’s to damages under the FELA smaller version of the NRAB and is fre- concerned, is Congress’ enactment of the quently stipulated parties in order RLA Buell, has had no effect.” 480 U.S. at resolution, dispute hasten see 45 -U.S.C. 566-67, 1416; 107 S.Ct. at Capraro see also Second). Buell, § 153 562-63, v. Co., United (3d Parcel Serv. 993 F.2d 328 107 S.Ct. at 1414. A PLB composed is of a Cir.1993) (noting that the RLA does not member, labor member, a railroad and a preempt claims may also be brought neutral member essentially and is an arbitral FELA). under the tribunal that reviews the outcome of rail- above, As noted Mr. Kulavic does con- investigative road’s hearing to ascertain test the PLB’s ultimate determination that whether the result is consonant with the he was not wrongfully terminated from his terms of the CBA between the railroad and position as a C & Thus, IM carman. its employees. union See Chicago Elmore v. acknowledges the finality and binding effect (7th & I.M. Ry., 782 F.2d Cir.1986); of the PLB’s award. court, The district how- FRANK Elkouri & Edna A. Elkouri, How ever, held that in reaching result, (4th 1985). Arbitration Works ed. A PLB implicitly considered and resolved the may award appealed court, in federal issues underlying Mr. Kulavic’s discharge. but the scope of “among review is Op. Mem. at 8. “This included whether at nairowest Sheehan, known to the law.” the time of his discharge, physi- Kulavic was 401; U.S. at 99 S.Ct. at see also Ameri- cally capable of preforming [sic] the duties of Dispatchers can Train Ass’n Norfolk carman.” Id. Because the district court Western Ry., 937 F.2d Cir. believed that the PLB had 1991). implicitly found “Judicial review of Board orders Mr. Kulavic healthy enough to continue his specific (1) limited to three grounds: failure carman, work as a the court ruled that he comply Board to with the require- present could not question (2) Railway Act; ments of the Labor failure whether he lost future income and benefits of the Board to confine itself to matters injuries. from his of Submission this within matter scope jurisdiction; (3) of its constitute, in the district corruption.” fraud or American Train Dis- view, relitigation court’s a patchers, the same issue F.2d at (citing 937 366 45 U.S.C. in his FELA action. § We must 153 determine (q)). First

whether the correctly gave preclusive effect to an issue purportedly by resolved PLB. Although the RLA many was enacted

years after the established, FELA had been the text FELA, makes no mention of the B. Reconciliation Statutory Schemes Buell, 562, 1414, 480 U.S. at 107 S.Ct. at much less any preclusive mention of effect a might award have on issues in a raised PLB resolution of disputes minor is Moreover, FELA claim. there is no indica- “compulsory deemed arbitration” for the lim tion in the rights RLA that the FELA were ited field of the RLA. See Brotherhood of in way diluted the enactment of the R.R. R.R., Trainmen Chicago v. River & I. RLA. merely The RLA 30, states that 39, 353 635, 640, awards U.S. 77 S.Ct. 1 L.Ed.2d of the PLB “shall (1957). and binding up'on final Thus, 622 an award made parties both dispute.” 45 U.S.C. 153 PLB has the finality same as a decision made (m) First and 153 Second. In discussing by arbitrators. Gunther v. Diego San A.& whether a inju- worker’s action for 257, emotional Ry., 263, 368, Eastern 382 U.S. 86 S.Ct. ry should be 371, (1965). considered a FELA claim 15 L.Ed.2d Supreme 308 514 VII on a Title effect preclusive no tration has that stated, principle, general aas has Court availability that claim; Buell states pro certain far from “it is pre- RLA does under the anof action effect on any preclusive ceedings will have filing a FELA claim. clude the claims.” federal nonarbitrable litigation of Byrd, 470 U.S. v. Reynolds Inc. Witter

Dean discussing reluctance this In 1238, 1243, 158 L.Ed.2d 222, 105 84 decisions, 213, S.Ct. effect to arbitration give preclusive deter courts to (1985). task It is the Al in opinion for the Court Powell’s Justice given will be effect preclusive 36, Gardner-Denver, whether 94 mine U.S. 415 exander v. arbitration; determi in (1974), finding made set 1011, forth 39 L.Ed.2d S.Ct. in other federal directly safeguards nation re to surface were the considerations 1243; see at 105 S.Ct. Id. at terests. In Gardner- subsequent cases. in peatedly Branch, 466 City West CBA, v. McDonald also Denver, pursuant to a employee, an L.Ed.2d 104 S.Ct. U.S. claim to race discrimination submitted ' rules Thus, framing preclusion (1984). “in employee’s rejected the who arbitrator arbitration,] shall courts context brought [in in suit then claims. The interests war into account federal VII, take he in which Title under federal court Witter, 470 U.S. Dean ranting protection.” discharged from had been at 1244. 105 S.Ct. at racially dis consequence of as a employment practices. The Su employment criminatory has cases, Supreme Court several deci held that arbitrator’s preme Court claims give arbitrated refused preclusive effect have sion judicial proceedings: subsequent effect action, fact that despite the VII Title occasions, has, on numerous This Court virtually same claim was employee’s employees that individual to hold declined for this As of its rationale both actions. availability of arbitra are, because that Title VII is noted holding, Court bringing claims under tion, barred enforce congressionally created important See, e.g., McDonald statutes. federal remedying racial dis ment mechanism Branch, [104 S.Ct. 466 U.S. West courts have the federal and that crimination (1984); v. Ar Barrentine 302] L.Ed.2d power to enforce given plenary been Inc., 450 Freight System, kansas-Best Id. statutory requirements. at 641] 67 L.Ed.2d [101 S.Ct. emphasized dis also 1019. The Court at Co., (1981); v. Gardner-Denver Alexander asserting contractual tinction between 147] 39 L.Ed.2d [94 S.Ct. in asserting independent, under CBA ques analysis (1974). Although the statutory rights accorded dividually-based distinct, quite each statute tion under 49-50, at 1020. S.Ct. Congress. Id. cases is through theory running these preclu- rejection of Thus, based the Court policies notwithstanding strong effect, its belief large part, on sive consid “different encouraging arbitration judicially to be the statute Congress intended claim employee’s where the apply erations does not and that enforceable arising a statute rights out of is based judicial adequate substitute provide an substantive provide minimum designed to under that adjudicating claims in proceedings Bar workers.” to individual guarantees statute. at rentine, 737 S.Ct. [101 at U.S.] [450 emphasized arbi- The Court further 14.43]. “system role in tration has well-defined Inc., Magic Chef, 486 Norge Div. Lingle v. 52, 94 Id. at self-government.” of industrial 1884, 1877, 411-12, 399, 108 S.Ct. omitted). (footnote at 1022 S.Ct. Buell, (1988) 480 U.S. (quoting L.Ed.2d bargain, the arbitra- McDonald, 1415). proctor theAs 564-65, 107 S.Ct. at at intent of is to effectuate pre tor’s task does that arbitration held the Court authority is the action; parties. His source Barren- subsequent § 1983 clude a and agreement, collective-bargaining has no states that arbitration tine agreement apply that interpret and must Fair Labor Stan under the on a claim effect “industrial common with the in accordance arbi- Act; holds that Gardner-Denver dards shop” law of the and the various needs and parties. desires of the We must now in examine some detail the procedures a PLB in reviewing utilizes 53, Id. at Consequently, S.Ct. at 1022. dispute minor making a final award. We procedures, arbitral while well-suited to the shall, course, particular focus on the arbi- resolution disputes, of arbitral make arbitra- process tration at issue in this case. tion comparatively inappropriate forum for rights the final resolution created Title RLA, Under the the PLB reviews a 56, VII. Id. at 94 S.Ct. at 1023. minor, dispute only after the claim is first presented to pursuant the railroad to its specialized competence [T]he of arbitrators usual reviewing procedures. 45 U.S.C. 153 pertains primarily to the shop, law of the (i). First The RLA govern does not land_ not the law of the Parties usual- procedures a railroad uses in investigative ly choose an they arbitrator because trust hearing. Edwards v. St. Louis-San Fran knowledge judgment concerning R.R., cisco Cir.1966). 361 F.2d the demands and norms of industrial rela- Instead, at stage grievance claim, of a hand, tions. On the other the resolution of dispute “the is private parties between [the statutory or pri- constitutional issues is a employee and the applica railroad] and the mary responsibility of courts.... procedure ble for (cid:127)settling dispute gov is Id. at S.Ct. erned the contract between them.” Id. at rights 954. The available to an employee, Justice Powell also stated that therefore, governed by may CBA and factfinding process in arbitration usual- vary agreement agreement; CBAs ly equivalent is not factfinding. required are not to contain a standard set of The record of proceedings the arbitration guarantees for investigative hearings. For is complete; not as the usual rules of example, employee necessarily does not apply; do not have the represented by to be an attor procedures trials, common to civil such as ney during proceedings. Id. In Ed discovery, process, compulsory cross-exam- wards, this court “[b]asically, stated that all ination, oath, testimony under are of- required that is of the initial conference on severely ten limited or unavailable. company property good is that ‘men of faith good get must in together faith in a sincere 57-58, Id. at 94 S.Ct. at 1024. He also noted ” effort to resolve their differences.’ Id. that arbitrators are obligation under no (quoting Ry. Rutland v. Brotherhood Lo give reasons for their award. Id. at Cir.1962), (2d Eng’rs, comotive 307 F.2d Moreover, S.Ct. at 1024. in the collective denied, rt. ce bargaining process, the manner and extent to (1963)). course, 9 L.Ed.2d 978 Of a CBA can which an grievance presented individual stringent procedural for more guar and the interests of the individual antees. may be subordinated to the collective inter- employees ests of all bargaining unit. C & dispute procedure pro- IM’s minor Id. at 58 n. 94 S.Ct. at 1024 n. 19. investigative hearing vides for an regarding guided Similar considerations the Court’s de- Mr. Kulavic’s work absence. The CBA be- termination in respect Barrentine with tween IMC & and Mr. Kulavic’s union was Fair Again, Labor Standards Act. party Mc- not included either the record on Donald, thus, appeal; Court came to a similar conclu- investiga- we do not know what § sion when it held that procedures 1983 claims are guaranteed tive were Mr. Kulav- important congressionally judi- know, however, that, created and ic. We do like most cially statutory rights, enforceable nature, investigations thus of hearing this the was that arbitration provide does not an “ade- premises held on the railroad’s and was con- quate substitute for a proceeding by in ducted railroad officials. At Mr. Kulavic’s protecting statutory the federal hearing, and constitu- Hearing superin- the Officer awas § tional designed that Interrogator is to safe- tendent of the railroad and the guard.” 466 U.S. at engineer 104 S.Ct. at 1803. was a chief who at that time had reiterat- into The railroad for fourteen ions the record.3 employed by C & IM been agree parties Meyer, did not years. part physician, 4 at The Dr. R. ed that right to not have the that Mr. Kulavic did had sufficient believe Mr. Kulavic submitted counsel; rep- by a union official represented he unable to show that was medical evidence Furthermore, Mr. carman, Mr. Kulavic. resented a R. perform to his duties as see discovery proce- that no Kulavic contends however, 15; part Meyer, Dr. 4 at preparation his to aid dures were available hearing. at appear the that, he had the hearing and while for the to had submitted Mr. Kulavic After witnesses, he no ability to cross-examine to appeal to hearing, he then able the was live or subpoena for either right to witnesses However, apparently does PLB. the importantly, testimony. he deposition Most investigatory pro railroad, not review the railroad’s employer, that his the was asserts that ceedings novo. Mr. Kulavic asserts judge proceedings. Ap- in de the both presid- pellant’s A official Br. at railroad PLBs hearing and that same official ed over the only disciplinary process stage the the of that Mr. Kulavic had both determined railroad, by they] the [but not controlled employment the of his breached terms ag- novo the do not a trial de terminating employ- disciplined him [they] grieved party, ... instead act much 54, part the R. ment with railroad. See in their appellate like courts review is Kulavic). (letter Hearing to Mr. from Officer disciplin- of limited to the record made the any of dispute not these asser- C & IM does ary proceedings the railroad conducted in the the and thus the absence of CBA tions “investigation.” at its is not of critical concern. record argument, at 10. At oral Mr. Appellant’s Br. investigative hearing purpose The of the point to no definitive Kulavic’s counsel could was to whether Mr. Kulavic had determine statement in the RLA’s text that mandates by not breached the terms of the CBA re- review; however, type & IM did not this of C porting for work after had been instructed of the take issue with this characterization investigation on do so. The centered review available from PLB. pro- evidence that Mr. Kulavic had medical The of the PLB’s review an extent regarding to C & IM inabil- vided ques- investigative hearing poses a difficult ity hearing to return to work. Much event, spent opin- unnecessary In it is reading was letters and medical tion.4 us parties objections during port party's position affirmatively must Both made various presented hearing, show the same have been we not know the course but do part party particular objections. other made what rules were the basis of these dispute. question objections. in do Nor we know the effect of such Elkourj & Edna A. Elkourj, transcript far as we can As tell How Arbitration Frank (4th 1985) (citations omitted). Works Hearing ed. investigation, response Officer’s Furthermore, regulations we for the note objections objections these was that the were a [to state that "all data submitted NRAB given matter of record and would be due consid- support the carrier's or the Board] [either eration. affirmatively employee's] position must show presented party] same to have been other [to previously entirely 4. We noted that it is have not particular question and made a only reviewing limited clear that a PLB is 301.5(d) (c). dispute.” 29 C.F.R. investigative presented hearing, evidence Atchison, particularly we it is As stated in although acknowledged arguably we have reviewing likely a PLB limited to is prohibited at introduction of new evidence premises” presented in the investi- evidence "on stage. Ry. Brotherhood Carmen Div. arbitral requires gation. RLA is true because the This Atchison, Ry., T. & F.2d S.F. grievance all of to exhaust the usual Cir.1992). support proposition, In further of this procedures will before PLB review be allowed. has stated that one treatise implies, requirement of exhaustion turn, issue, serving may party essential- raise [i]f arbitration tribunal is issue, concerning obviously present an old ly appellate capacity in an there is new stage, strong time the arbitration to what for the first reason confine the evidence stages bypass regard, doing the earlier he would considered below. so Adjustment provided the remedies rules of the National Railroad and thus fail exhaust stages. require sup- Board that all data submitted at those to determine whether generally PLBs are formed of the Supreme basis for' the considering restricted from pre- evidence not Gardner-Denver, Court’s decisions in Bar viously presented investigative rentine, at an hearing, and McDonald which determined - because Public Law Board No. that prior VII, FLSA, arbitration to Title appeal, PLB assessed Mr. §' Kulavic’s preclude actions could not the statu clearly beyond stated it could not look tory case, actions.5 In each the Court found the record made at the investigative hearing. procedures used in arbitral factfind- “[I]t is well settled disciplinary in railroad ing were protect insufficient to important proceedings that the parties dispute statutory employees constitutional having jurisdiction Board are limited seeking were subsequent judi to enforce in investigation, the evidence in the and such Gardner-Denver, cial actions. the Su may properly record not be added to after preme Court acknowledged that “it is the investigation award, closes.” PLB R. informality procedure of arbitral that enables PLB, therefore, part 8 4-5. This efficient, it to function as an inexpensive, and beyond look the record established rail- expeditious dispute means for resolution. management road investigative hear- characteristic, however, This same makes ar ing and give pause this fact must us bitration a less appropriate forum for final concern. resolution of Title VII issues than the federal courts.” 415 U.S. at 94 S.Ct. at 1024.

Because the PLB here functioned as an tribunal, appellate it reviewing was limited to C & IM has the burden establishing record created in the railroad-controlled judicata that res estoppel or collateral ought investigative Furthermore, hearing. C & IM post-termination to bar damages economic dispute factfinding process does not that the case, the FELA action.6 In this that burden hearing utilized at equivalent was not not has been met. C & IM has not demon- evidentiary procedures used in fact- strated procedures these were suffi- reasons, finding. For these we do not be- ciently protective Mr. Kulavic’s federal lieve that the PLB’s protect review could statutory right to recover under the FELA. adequately statutory rights set forth in

the FELA. 3. informality While the investigative We find support holding further for our

hearing and Circuit, circumscribed review were decision Coppinger Second provide expeditious intended to R.R., alterna- v. Metro-North Commuter 861 F.2d 33 (2d lengthy litigation Cir.1988). tive to court day-to-day In Coppinger, a railroad em- disputes, minor labor procedures ployee these same discharged posi- after he tested provide guarantees do sufficient for reli- presence tive for the sought, of narcotics. He factfinding able under the FELA. As we to have his termination rescinded through earlier, have noted however, same proceedings; rationale RLA arbitration Atchison, course, Polewsky by ner-Denver, 956 F.2d at But see the PLB. Of the rationales of Gard- R.R., (D.Vt. Bay Colony F.Supp. Barrentine, McDonald, and also 1992). Polewsky held that NRAB re Buell, equally applicable determining here in view presented is not limited to evidence at a adequacy fact-finding process to safe- prior hearing regula because RLA and the guard separate statutory substantive claim. presented tions that the is to be Board "with a sup full statement facts and all Labs., Blonder-Tongue University 6. See Inc. v. porting bearing disputes." upon data Id. Found., III. (i); (quoting § 45 U.S.C. 153 First 29 C.F.R. (1971) (stating judicata L.Ed.2d 788 that res is 301.2(a) (1992)). § The court did not discuss defense); Preferida, an affirmative La Inc. v. Cer meaning language set forth in 29 C.F.R. Modelo, C.V., veceria S.A. de 914 F.2d 301.5(d) (e). § 1990) (holding party claiming Cir. col question These cases deal with the of whether estoppel proving lateral effect has the burden of totally definitively preclude can appropriateness); A. Charles Wright et al.. judicial proceedings By identical claim. 4405 at 38 Federal Practice and Procedure contrast, acknowledges, as C & IM Mr. Kulavic (1981) (stating establishing that "the burden of separate has a to FELA and some it”). preclusion placed party claiming on the of the elements of that claim were not addressed forum, for the resolution though effective employee The his dismissal. upheld PLB bargain- court, collective under the disputes’ in federal ‘minor §a brought action then as a inadequate infringed patently agreement, are ing had the railroad charging that appellant’s constitutional right resolving to be free Amendment means Fourth seizure, Acknowledging it re- when § Id. and under 1983.” search claims unreasonable and urine sam- that the blood indicate him to quired the record that railroad asserted drug The had been the test. claims ples for constitutional employee’s PLB, full and given a had been the the the that or determined considered Fourth present his to opportunity fair decision that the arbitral concluded court thus, and, the claim respect to judicata Amendment with not res PLB was the preclude proceedings should arbitration court action. Id. the district § action. subsequent case, Benjamin subsequent In a Traffic grant to such refused The Circuit Second (2d R.R., 869 F.2d Eastern Exec. Ass’n the It effect. determined Cir.1989), determined the Circuit Second raised under factual and issues legal (one made finding apparently an arbitral arguably § are and Amendment Fourth PLB) not rate employees were before a whose competence of arbitrators beyond the Act Staggers employees under bureau encompasses industrial primarily expertise on claims preclusive effect given should be interpretation of CBAs. relations and breach and for fraud under RICO to inter- Furthermore, mandate is the PLB’s duty. Although the court discussed fiduciary CBA, statutes. not to enforce pret the concerns ex Coppinger, it found procedures arbitral that the court also stated inapplicable to opinion were in that pressed protective of by the PLB less used “are Benjamin.8 the circumstances proce- than are the guarantees constitutional Coppinger undis- Benjamin explicitly left employed in the United States dures not alter our anal- does turbed and therefore Finally, the court at 39. 861 F.2d courts.”7 emphasized Benjamin court ysis. The in the preclusive effect granting held that employees had been held that the specifically deny employee the action would litigate to opportunity fair given a full and would otherwise range of relief that full at Id. 110. board.9 before the arbitration compensate for the violation him available to heavily Furthermore, on court relied RLA for rights. Relief under in the arbitra- issue reviewed point that the been limited unjust would have dismissal tion, the com- after which was instituted pay, and back whereas reinstatement judicial proceedings, was iden- mencement all of employee would have district to the court for tical to the issue submitted recovery available. usual avenues the arbitral determi- novo decision. Had “Hence, in the arbitral de the remedies available preclusive effect between the difference in sis of specifically noted 7. The court estoppel. judicata and collateral res carry it with does not [a]rbitration generally jury; are not a trial arbitrators process as the arbitration court described 9.The decisions; give their required reasons follows: generally proceedings of arbitral the record record; action, complete Following as a trial of this de- not as commencement compel than is more limited arbitration on of Board decisions moved to review fendants agreed proceedings; employees Fed- Staggers district court Act claim. The review of binding aon of Civil Procedure Evidence and that count to eral Rules of submit up parties rights set informal such as testimo- basis. Both apply; and other classwide do not cross-examination, pro- oath, discovery, the arbitration procedural govern rules to ny under agreed presentation of oral ceeding. They process compulsory are restricted. briefing short, impor- testimony, extensive is often as or written where suits tried fact, did, discovery. engage in informal At sought to be the substantive tant as hearing plaintiffs cross-examined the' vindicated. orally, testified who defendants' witnesses Coppinger, 861 F.2d chosen, have, they called in and if could submitted witnesses who those cross-examined distinguish Circuit two Second we 8. Because testimony paper. their grounds, not decide we need on these cases Benjamin, F.2d at analy- Benjamin support court's we whether nation given preclusive effect, not been there 4. danger was a of inconsistent results. Pursu- Finally, that, we note while arising in a arbitration, ant to the the employees 'were different context us, than'the case'before the found not to be rate bureau employees under Supreme Court’s analysis in its recent deci Act, Staggers the but the possibility existed sion in Astoria Federal Savings & Loan they if go were allowed to to trial on the — Solimino, Association v. U.S. -, remaining claims, the factfinder could have S.Ct. (1991), L.Ed.2d 96 confirms

found them to be employees rate bureau the correctness of the methodology we have the result, other three counts. This employed. the ease, In that which dealt with the view, Second Circuit’s would have been un- circumstances in which the decision of an tenable. The court also administrative found that the na- an tribunal —not ture the proceeding ought of issue in front of to recognized the arbitrators— in later — judicial proceedings, employees the the whether Court were first considered noted rate that the matter preclusion is, of issue employees bureau funda under the Staggers Act— mentally, a matter legislative intent. was That closer arbitrators’ realm exper- legislative intent can be only by discerned an tise than was the Fourth Amendment claim examination of specific “the context of the Coppinger. rights stake, power the agency, the Benjamin simply is not controlling here. the relative adequacy of agency proce We — already have held the factfinding at -, dures.” 111 S.Ct. at 2170. procedures used in Mr. Kulavic’s case are As we have previously noted, is there no inadequate to convince us that allegedly facts indication that Congress intended to subor- determined in the arbitration should be given rights dinate the by created FELA to the preclusive effect in a FELA action. Focus- strictures of Moreover, RLA.10 the the task ing on inadequacy of the proce- arbitral of the PLB was limited application to of the dures, when juxtaposed against the impor- Indeed, CBA. it is not at all clear that the tant statutory rights FELA, embodied in the by issue determined the PLB was even the we believe that the situations in Coppinger same issue as presented issue and this case analogous. are to the district court in the FELA action.11 recently This court has [tjhere held that RICO claims presented was no evidence in the inves- premised on a railroad’s violation of its tigation that being claimant was withheld from preempted CBA the RLA. Underwood by any Carrier’s service doctor. It is clear Venango Corp., River 995 F.2d 677 Cir. from the attempting record claimant was 1993). Because "depended the RICO claims personal to substitute opinion his as to his solely upon interpretation an creat ability to professional return to work for the ed in the collective-bargaining agreement," we opinions of the several medical doctors in- stated that the action would not vindicate sub volved. rights independent stantive from the CBA. 995 55, part however, R. litigation, 8 at 4. In this C Thus, F.2d at 685. the RLA controlled. This is & point IM asserts that the focal of the award case, however, not the with Mr. Kulavic's FELA physical ability was Mr. perform Kulavic’s to noted, claim. As we pro earlier FELA does job. duties of his former The railroad contends vide statutory rights independent substantive PLB, that the reviewing after the medical docu- Interpretation of required RLA. CBA is not it, presented ments to determined that Mr. Ku- rights. to construe those physically lavic was fit to return to work that, the PLB possibility ruled out acknowledged As C & IM argument, at oral wages entitled future and benefits from the ultimate determination PLB was that discharge recompense date as for his al- railroad had appropriately terminated Mr. leged award, however, injuries. words, Nowhere in employment; Kulavic's in other the inves- tigative specifically does the PLB hearing state that it improper has deter- been or fraud- mined Mr. underlying physically per- ulent. The to be Kulavic able to rationale of the PLB's Although award seems to form be that Mr. former duties. Kulavic district persuaded by interpretation sufficient C medical IM’s evidence to excuse his award, failure return work when we believe instructed do the matter is far from IM, thereby so C & breaching provisions language just easily clear. can as be read to of the CBA allowing justifiably support railroad simply contention that Mr. Kulavic employment. terminate his present The award states failed to sufficient medical CBA, required choosing railroad under injuries con- Kulavic’s noted, precipitated proce- duct that already have Finally, as we and, touching himof unauthorized adequate substi- stitute are not dures negligent, than rather although the dis- intentional factfinding processes of for the tute bounds of fall within the nevertheless short, this case involves while court. trict question then is principal award, FELA. of an arbitration effect preclusive all the to seek is entitled decision, Kulavie whether we to an administrative opposed is entitled. he maintains he damages to which compatible path analytical walked have in Astoria the Court followed the one with right a claimed complaint, Kulavie In his Federal. injury, pain disability from his for recover expenses, lost earn- suffering, medical and Conclusion fringe and earning capacity ings, loss of and not by the PLB should Rail- Midland Chicago The arbitral award & Illinois benefits. IM”) in Mr. Ku- (“C only given effect preclusive contested way Company have been action. his subsequent FELA present lavic’s has the whether he relief, requested a Kulavie capacity Mr. prayer earning for any wages or of damages. Be- only the issue of on it terminated new trial lost fringe benefits after liability a into Thus, denying trial bifurcated Ku- cause the court’s him. the district phase, this relief any and a losses phase right to offer evidence lavic the Furthermore, we are because totally deprive appropriate. discharge not did after his manner, & IM’s in this C resolving merely circum- case claim but FELA him of his evidentiary regarding way (assuming cross-appeal fairly in a limited it scribed is moot. damages phase major of trial suffering pain errors constitutes appeal claim). on those claims Any resolution of personal injury component of a foregoing rea- advisory. For the be present can Kulavie whether To determine ruling of the district sons, reverse the we damages, post-termination his evidence on effect of the regarding court carefully retraces opinion the court’s award, a new trial dam- for on remand RLA and blurry line between sometimes opinion, and with this in accordance ages Atchison, Topeka example, For the FELA. cross-appeal. claims C & IM’s dismiss 557, Buell, Ry. v. 480 U.S. Fe Co. and Santa costs may recover his Kulavie Mr. (1987), 1410, con 563 94 L.Ed.2d 107 S.Ct. court. expansive language re rather tains some claims types negligence garding the REMANDED AND CROSS-AP- AND REVERSED brought un may employees that peal railroad Dismissed. taking Buell’s Apparently der the FELA. concurring. FLAUM, Judge, Circuit RLA lead, the court reasons because actions, a PLB FELA preempt tricky does not question of poses a rather This case through arbitration RLA arrived opinion repre order The court’s preclusion. issue any preclusive ef have not procedures does rela very thorough elaboration sents Analogizing from FELA action. fect on purposes of the FELA scope and tive v. as Alexander Gardner-Denver cases such particular tension as the the RLA as well Co., L.Ed.2d 39 94 S.Ct. 415 U.S. regard to Ku- with the two between statutes (1974), City West v. level, McDonald 147 neither At most basic lavic’s claim. of 1799, Branch, 80 Kulavie was entitled party disputes that (1984), v. Arkansas- Barrentine the L.Ed.2d FELA for 302 damages under the recover Inc., 101 System, U.S. Freight supervi Best of his at the hands harm he suffered (1981), Cop L.Ed.2d 641 S.Ct. and Western sor. See Lancaster Norfolk Railroad, (7th Cir.1985), Commuter pinger v. Metro-North Co., 814-15 Ry. 773 F.2d (2d Cir.1988), main denied, 861 F.2d S.Ct. cert. process grievance (1987). the nature tains that supervisor’s con- His L.Ed.2d work. physically to return to unable opinion rely unjustifiably on his own instead to he was employer that as evidence convince the PLB “[does] not precluded benefits the district court adequate substitute proceed- accrued termination, after Kulavic’s he would ings adjudicating claims under stat- (or other) pin be able to them on this Op. Certainly, ute.” at 514. no one would statutory provision in the FELA. Kulavic is, dispute panel that an arbitration ill- would probably respond that even those equipped claims, types to consider certain damages can be traced original back to the particularly falling range those outside the altercation with supervisor; moreover, stemming claims from minor of col- breaches the PLB did not literally address whether he bargaining lective Accordingly, contracts. was entitled to these post-discharge wages or proper arbitration would not be method fringe during benefits its termination hear- adjudicating an.employee’s Title orVII sec- ing. It only resolved whether discharge tion 1983 claims. was lawful. Accordingly, Kulavic I believe facts, however, present On the I only believe issue the to relevant this court’s damages by that the claimed Kulavic do not review should be the estoppel effect of Ku- unequivocally fall regime outside of the RLA termination, lavic’s legitimacy of which he resolving workplace for grievances. In this challenge earlier and should not be regard, Benjamin I find v. Executive challenge able to now. regard, In this I Traffic Railroads, (2d Ass’n Eastern 869 F.2d 107 would focus not on competence of those Cir.1989), germane Copping- be more than administering the hearing, termination itself er. personal injury For Kulavic to assert his subject of collective bargaining, or the claim in court under the FELA and avoid PLB, 'entity by sanctioned Congress un- preclusive RLA, must, effect his claim of RLA, der the (1986), § see 45 U.S.C. 153 but matter, preliminary as a spe be based on a on the reach of their conclusions. FELA, is, provision cific of Congress goals One preclusion of of issue is to must have intended such actions be liti put to rest'those party matters that a has gated in FELA suits.1 See v. Jackson Con an “full opportunity and fair litigate.” Corp., solidated Rail 717 F.2d 1050 Laboratories, Blonder-Tongue See Inc. v. (7th Cir.1983). language of FELA University Foundation, Illinois 402 U.S. of on which relying provides: Kulavic is 313, 328, 1434, 1442, 91 S.Ct. 28 L.Ed.2d 788 Every ... railroad ... shall be in liable (1971). Kulavic contends that because the damages any person injury suffering factfinding from, by the PLB is distinct if not by while he is employed any such carrier to, judicial factfinding, inferior the PLB ter in such injury commerce ... for such or mination decision should not have resulting death or in whole effect post-discharge on the losses. See officers, negligence agents, Shore, Hosiery Parklane Co. v. 439 U.S. employees of carrier. such 331 n. 99 S.Ct. 655 n. 58 L.Ed.2d (1986). 45 glance, U.S.C. 51 At first (1979) (“differences proce in available damages squarely action pro- falls within this may dures justify sometimes not allowing a However, vision. a somewhat different char- prior judgment estoppel to have effect in a acterization of suggest Kulavic’s action does subsequent action even between the same may that the FELA enough not be broad parties”). point, despite possi More to the a accommodate him in recovering all the dam- overlap ble reviewed ages he seeks. properly regard One could PLB present that which Kulavic and would wages his claims for lost fringe and benefits court, federal did not have occasion discharge-related claims. And an ex- to consider damages. his future economic tremely literal reading of provi- this FELA may sion recovery only injuries Kulavic, allow In terminating the PLB deemed during accrued the tenure of the Any he was fit to to work. return with given wages carrier. Because by Kulavic post-discharge lost demands estoppel Whether of brought certain ed claims for sufch claims to be under the uphold means of the PLB's decision to FELA. Kulavic's See Astoria Federal & Loan Ass'n v. Sav. - Solimino, -, legislature" termination “is S.Ct. intended (1991). way asking Congress another whether intend- L.Ed.2d unwar then to be appear wages and benefits CENTER, Depart- repre TISSUE items in essence NORTHWEST because those ranted Center, Puget wrongful Blood Sound of a ment of elements the remedial sent Oregon reinstatement), (minus Corporation, Washington which discharge claim Em- Bank, Department the strictures within Tissue properly would fall Center, a Hospital the PLB. purview of Health manual RLA and Cf. Affiliate, Quincy System an Ore- Chicago, Burlington Legacy Health v. Morrissette (7th Cir.1961), Plaintiffs-Appellants, Co., cert. gon Corporation, F.2d 502 R.R. denied, (1962). I am not inclined L.Ed.2d Secretary SHALALA,1 E. Donna reopen or to circumvent Kulavic to permit Department of Health United States if he particularly discharge proceedings, Kessler, Services, David Human railyard. returning to the balking at just Food the United States Commissioner jury to evi allowing a hear my opinion, Administration, Drug Defendants- post- Kulavic is entitled on whether dence Appellees. fringe wages and benefits lost termination finality end run around be an No. 93-1078. termination, very contrary to a which is Appeals, States Court United estoppel. theOn purpose of collateral basic Seventh Circuit. for the loss hand, employee’s claim other earning capacity dependent future Argued 1993. June previous em present or employee’s on that July 1993. Decided See, e.g., v.Wiles circumstances. ployment R.R., York, & St. Louis Rehearing Central Suggestion New Rehearing and (3d denied, Cir.), cert. F.2d 328 Sept. 1993. Banc Denied En (1960); gener see 5 L.Ed.2d Corp., 973 McKnight v. Motors ally General (7th Cir.1992); Wolkenhauer F.2d Cir.1987). (7th

Smith, Because 822 F.2d 711 earning capacity lost

the issue Kulavic’s scope the PLB termi

falls outside decision, limit I remand

nation solely trial on the for a new court

district excluding damages, future

issue of economic fringe wages of lost

any consideration discharge from C subsequent to his

benefits

IM.2& the district case was commenced although After this Finally, note that I would court, W. Louis Shalala E. succeeded appeal Donna on its dismissed C & IM’s cross Department Secretary judgment, Sullivan against the availabili- set off the FELA Her name has and Human Services. dispute. See 45 Health ty not in set off to C & IM is caption. Fed. for his in the Burlington Co. v. been substituted R.R. Northern U.S.C. 43(c). 1990). R-Civ.P. Strong, Cir. 907 F.2d 707

Case Details

Case Name: Daniel L. Kulavic, Cross-Appellee v. Chicago & Illinois Midland Railway Company

Court Name: Court of Appeals for the Seventh Circuit

Date Published: Jul 26, 1993

Citation: 1 F.3d 507

Docket Number: 92-1707 & 92-1907

Court Abbreviation: 7th Cir.