1 F.3d 507 | 7th Cir. | 1993
Lead Opinion
Daniel Kulavie was an employee of the Chicago & Illinois Midland Railway Company (C & IM) when he was injured on the job in a physical altercation with his supervisor. Subsequently, his employment was terminated when he failed to follow C & IM’s request to report to work and, in the company’s view, did not provide sufficient medical evidence, to excuse his absence. Mr. Kulavie pursued relief under the Railway Labor Act (RLA), 45 U.S.C. §§ 151-188 (1988), but his termination was upheld. He then brought suit in federal court under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60 (1988), to recover for injuries sustained in the incident with his supervisor. The district court, however, determined that Mr. Kulavie was barred from presenting any evidence of future lost wages, benefits, and earning capacity from the date of his discharge. The court held that Mr. Kulavie was precluded from presenting the issue of these damages to the jury in his FELA action because the issue had been resolved in the RLA proceedings. 760 F.Supp. 137. Although the jury in the FELA action ultimately awarded damages to Mr. Kulavie, he moved for a new trial on damages or, in the alternative, for judgment notwithstanding the verdict and addi-tur. The district court denied the motion and Mr. Kulavie now appeals. C & IM also appeals from several evidentiary rulings the district court made during the damages phase of trial. We reverse the judgment of the district court and remand for a new trial on damages. C & IM’s cross-appeal is dismissed.
I
BACKGROUND
A. Facts
Mr. Kulavie was employed by C & IM as a carman. While at work on August 30, 1985, Mr. Kulavie was involved in an altercation during which his supervisor physically assaulted him. Mr. Kulavie and his supervisor had disagreed over the proper method for testing air brakes on railroad ears submitted to the car department for inspection. After a heated discussion, the supervisor attacked Mr. Kulavie from behind, punching and kicking him and causing him to fall on a brake beam.
Mr. Kulavic’s work suspension was set to terminate on January 6,1986, but on January 2, Mr. Kulavie advised the head of his department, Hal Bast, by letter that he was still under his doctors’ care and would be unable to return to work. R. 53, part 2 at Carrier’s Ex. C. Mr. Kulavie informed Bast that he would advise the railroad when he was able to return. Id. On January 3,1986, C & IM’s general surgeon, Dr. John Meyer, examined Mr. Kulavie to determine whether he was physically capable of returning to work. Dr. Meyer also requested that Mr. Kulavie make available all medical records compiled by any doctors who had examined or treated him during his work suspension. Based on the examination and the information he received from some of Mr. Kulavic’s treating physicians, Dr. Meyer had come to the conclusion, by the beginning of June 1986, that Mr. Kulavie was capable of returning to work.
Bast then notified Mr. Kulavie that he was to report for work on June 9, 1986, because
you can prove by medical evidence from a reputable physician that you are physically unable to work this date, and each date you are absent prior to your return to service. As always, final determination as to an employe’s [sic] physical and mental ability to work will be made by the company physician.
We will have no alternative but to consider you absent without permission until such time as you return to work, or show by medical evidence why you cannot.
R. 53, part 3 at D. In response, Mr. Kulavic submitted to C & IM an insurance report with an attachment filled out by his physician, but the railroad determined that the document did not meet the required standard of “medical evidence from a reputable physician that you are physically unable to return to service.” R. 53, section 3 at K. Thus, Mr. Kulavic’s work absences could not be excused on the basis of his alleged continuing disability. On June 17, Bast advised Mr. Kulavic to report to C & IM for an investigation and hearing to
develop facts, and your responsibility, if any, in connection with your alleged failure to report for work as instructed, ... your alleged absence without permission, ... and your alleged failure to timely notify your supervisor you would be absent on June 10, 11, 12, 13, 16, and 17, 1986.
You are entitled to representation, to present witnesses in your own behalf and to examine and cross-examine any witnesses appearing at such investigation and hearing.
R. 54, part 7 at Carrier’s Ex. LL.
The investigative hearing was held on July 15,1986, on the premises of C & IM and both the Interrogator and the Hearing Officer were railroad employees. Mr. Kulavic attended the proceedings and was represented by a union official. Mr. Kulavic’s medical records and his physicians’ correspondence were examined and Mr. Kulavic was allowed to present his case to the railroad.
Ten days later, the Hearing Officer sent Mr. Kulavic a letter detailing the findings of the investigation and informing Mr. Kulavic that C & IM had terminated his employment. The Hearing Officer concluded that none of the evidence presented at the investigation served to excuse Mr. Kulavic’s work absence; Mr. Kulavic had failed to present sufficient medical evidence of his inability to return to work. R. 54, part 5.
Pursuant to the procedures dictated by the RLA, Mr. Kulavic appealed his dismissal to a Public Law Board (PLB). He claimed that the railroad had violated the collective bargaining agreement (CBA) by unfairly dismissing him, and he alleged that the railroad’s investigation had been improper and unjust. Thus, Mr. Kulavic submitted that his employment should be restored to him and his wages and all other benefits, plus interest, should be granted to him as relief. R. 55, part 8 at 1. A majority of the PLB, however, found no reason to interfere with the railroad’s termination of Mr. Kulavic’s employment.
Upon review, we find that the investigation was conducted in a fair and impartial manner. None of claimant’s agreement rights was violated. We have considered the objections of the Organization and do not find them of sufficient significance to invalidate the proceedings.
Substantial evidence was adduced in the investigation in support of the charge against claimant. There was no evidence presented in the investigation that claimant was being withheld from Carrier’s service by any doctor. It is clear from the record that claimant was attempting to substitute his personal opinion as to his ability to return to work for the professional opinions of the several medical doctors involved.
B. District Court Proceedings: The FELA Action
On August 3, 1986, Mr. Kulavie filed an action in federal court alleging liability against C & IM under the FELA. See 45 U.S.C. §§ 51-60. Mr. Kulavie sought redress for the injuries he had sustained in the altercation with his supervisor. Mr. Kulavie claimed that C & IM had negligently caused, at least in part, his numerous injuries. The district court bifurcated the trial into a liability phase and a damages phase. In the liability phase, the jury found C & IM eighty-five percent negligent and Mr. Kulavie fifteen percent negligent for his injuries. Thus, the railroad was responsible for eighty-five percent of any damages that the jury might award to Mr. Kulavie in the second phase of trial.
Prior to trial on liability, C & IM had filed a motion in limine seeking to bar Mr. Kulavie from seeking lost earnings, fringe benefits, and loss of earning capacity from the date of his discharge onward. C & IM argued that these damages had already been addressed and resolved by the PLB when it reviewed the railroad’s dismissal of Mr. Kulavie. The district court agreed and granted the railroad’s motion. However, after the jury brought back the negligence allocations, but prior to trial on damages, the district court revisited the issue of the preclusive effect of the PLB’s decision. Because the court believed the question to be both important to the litigation and novel, it ordered the parties to submit supplemental briefs on the issue.
On April 2, 1991, the district court again ruled that the PLB’s decision precluded the availability of some of Mr. Kulavie’s alleged economic damages in the FELA claim. R. 95, Mem. Op. at 10. The court found that, in the course of the PLB’s review of the railroad’s investigatory hearing, the PLB had examined Mr. Kulavic’s medical records and physicians’ reports and had determined that Mr. Kulavie was physically capable of returning to work. According to the court, this determination required a conclusion that Mr. Kulavie had no right to future wages and compensation for loss of earning capacity because he was able to return to work. Allowing Mr. Kulavie to argue to the jury that he had lost wages, benefits, and earning capacity subsequent to his termination would, the district court concluded, nullify the PLB’s decision, thus ignoring the finality such decisions are given by the RLA. See 45 U.S.C. § 153 First (m) and 153 Second. Additionally, the district court stated that giving the PLB decision preclusive effect in a subsequent FELA action did not deny Mr. Kulavie his statutory right to redress his injuries, Mem. Op. at 10; Mr. Kulavie was allowed to present to the jury evidence regarding past and future medical bills, pain and suffering, disability resulting from injury, and lost earnings between the time of injury and the date of discharge. Thus, the court held that compensation under the FELA was not entirely foreclosed. Subject to C & IM’s motion in limine, the damages phase of Mr. Kulavie’s case was tried to the jury. The jury awarded $75,000 in damages, $63,750 of which was the responsibility of the railroad. Both parties then submitted post-trial motions. Mr. Kulavie moved for a new trial on damages or, in the alternative, judgment notwithstanding the verdict and additur. C & IM also moved for a new trial on damages or, in the alternative, to alter or amend the judgment to reflect certain setoffs and liens. The district court denied all of the motions and both parties now appeal. Mr. Kulavie contends that the district court erred when it prohibited him from presenting certain economic damages to the jury. He asserts that determinations made pursuant to RLA-mandated arbitration should not be given preclusive effect in a separate FELA action. In its cross-appeal, C & IM raises several alleged evidentiary errors made by the district court in the damages phase of trial and contends that certain set-offs should have been assessed against the amount of damages awarded Mr. Kulavie.
II
ANALYSIS
Mr. Kulavie acknowledges that, under the RLA, the PLB’s award regarding his dis
C & IM, however, emphasizes that awards made by the PLB are final and binding on both parties to the dispute. It states that an issue resolved under the RLA cannot be relitigated in a separate judicial forum. Congress intended that decisions rendered under the RLA be final and, according to C & IM, allowing relitigation under the FELA would frustrate that intent. Moreover, C & IM contends that the district court’s decision regarding preclusion did not eliminate Mr. Kulavic’s right to recovery under the FELA. The court disallowed only a portion of Mr. Kulavic’s alleged damages, while allowing the jury to consider the rest. Thus, C & IM believes the district court correctly respected the finality of the PLB’s award by finding that Mr. Kulavie was precluded from asking the jury for damages due to lost wages, benefits, and earning capacity incurred after his termination.
A. The FELA and RLA Frameworks
1.
Congress originally enacted the FELA in 1906 to create a federal remedy for railroad employees injured on the job by the negligence of their employers or their coworkers. Atchison, T. & S.F. Ry. v. Buell, 480 U.S. 557, 561, 107 S.Ct. 1410, 1413, 94 L.Ed.2d 563 (1987); Lancaster v. Norfolk & Western Ry., 773 F.2d 807, 812 (7th Cir.1985), cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788 (1987). Independent of the railroad’s obligations under its CBA, the FELA provides railroad workers not only with substantive protection against negligent conduct by the railroad, but also affords an injured worker a remedy suited to his needs, untrammeled by many traditional defenses against tort liability. Buell, 480 U.S. at 565, 107 S.Ct. at 1415. This statute thus serves to provide an injured worker with an expeditious recovery and also gives a railroad the incentive to maintain vigilance over the safety of its workers and, concomitantly, the conditions in which they must work. An injured railroad employee can recover under the FELA as long as the employer’s negligence “played any part, even the slightest, in producing the injury ... for which damages are sought.” Rogers v. Missouri Pacific R.R., 352 U.S. 500, 506, 77 S.Ct. 443, 448, 1 L.Ed.2d 493 (1957). Moreover, the FELA has also been interpreted to reach at least some intentional torts. See Lancaster, 773 F.2d at 812. The FELA is, therefore, a broad remedial statute to be construed liberally in order to effectuate its purpose. Buell, 480 U.S. at 562, 107 S.Ct. at 1414.
2.
The RLA was established to achieve an altogether different goal. Enacted in 1926, the RLA provides an extensive administrative framework for resolving labor disputes in the railroad industry. Id. Under the RLA, minor disputes — those involving “grievances that arise daily between employees and carriers regarding rates of pay, rules, and working conditions,” i.e., disputes under the operative CBA — are to be resolved out of court. See 45 U.S.C. § 153 First (i). In this manner, Congress promoted stability in the railroad industry by creating a mandatory alternative to judicial resolution of railroad-employee disputes arising out of the interpretation of CBAs. Union Pacific R.R. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978).
Pursuant to the RLA, a minor dispute must first be handled through the railroad’s
3.
Although the RLA was enacted many years after the FELA had been established, the text makes no mention of the FELA, Buell, 480 U.S. at 562, 107 S.Ct. at 1414, much less mention of any preclusive effect a PLB award might have on issues raised in a FELA claim. Moreover, there is no indication in the RLA that the FELA rights were in any way diluted by the enactment of the RLA. The RLA merely states that awards of the PLB “shall be final and binding up'on both parties to the dispute.” 45 U.S.C. § 153 First (m) and 153 Second. In discussing whether a worker’s action for emotional injury should be considered a FELA claim or should fall under the purview of the RLA, the Supreme Court has noted that “absent an intolerable conflict between the two statutes, we are unwilling to read the RLA as repealing any part of the FELA.... As far as a worker’s right to damages under the FELA is concerned, Congress’ enactment of the RLA has had no effect.” Buell, 480 U.S. at 566-67, 107 S.Ct. at 1416; see also Capraro v. United Parcel Serv. Co., 993 F.2d 328 (3d Cir.1993) (noting that the RLA does not preempt claims that may also be brought under the FELA).
As noted above, Mr. Kulavic does not contest the PLB’s ultimate determination that he was not wrongfully terminated from his position as a C & IM carman. Thus, he acknowledges the finality and binding effect of the PLB’s award. The district court, however, held that in reaching its result, the PLB implicitly considered and resolved the issues underlying Mr. Kulavic’s discharge. Mem. Op. at 8. “This included whether at the time of his discharge, Kulavic was physically capable of preforming [sic] the duties of carman.” Id. Because the district court believed that the PLB had implicitly found Mr. Kulavic healthy enough to continue his work as a carman, the court ruled that he could not present to the jury the question of whether he lost future income and benefits from his injuries. Submission of this matter to the jury would constitute, in the district court’s view, a relitigation of the same issue in his FELA action. We must determine whether the court correctly gave preclusive effect to an issue purportedly resolved by the PLB.
B. Reconciliation of the Statutory Schemes
1.
PLB resolution of minor disputes is deemed “compulsory arbitration” for the limited field of the RLA. See Brotherhood of R.R. Trainmen v. Chicago River & I. R.R., 353 U.S. 30, 39, 77 S.Ct. 635, 640, 1 L.Ed.2d 622 (1957). Thus, an award made by the PLB has the same finality as a decision made by arbitrators. Gunther v. San Diego & A. Eastern Ry., 382 U.S. 257, 263, 86 S.Ct. 368, 371, 15 L.Ed.2d 308 (1965). The Supreme
In several cases, the Supreme Court has refused to give arbitrated claims preclusive effect in subsequent judicial proceedings:
This Court has, on numerous occasions, declined to hold that individual employees are, because of the availability of arbitration, barred from bringing claims under federal statutes. See, e.g., McDonald v. West Branch, 466 U.S. 284 [104 S.Ct. 1799, 80 L.Ed.2d 302] (1984); Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728 [101 S.Ct. 1437, 67 L.Ed.2d 641] (1981); Alexander v. Gardner-Denver Co., 415 U.S. 36 [94 S.Ct. 1011, 39 L.Ed.2d 147] (1974). Although the analysis of the question under each statute is quite distinct, the theory running through these cases is that notwithstanding the strong policies encouraging arbitration “different considerations apply where the employee’s claim is based on rights arising out of a statute designed to provide minimum substantive guarantees to individual workers.” Barrentine, [450 U.S.] at 737 [101 S.Ct. at 14.43].
Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 411-12, 108 S.Ct. 1877, 1884, 100 L.Ed.2d 410 (1988) (quoting Buell, 480 U.S. at 564-65, 107 S.Ct. at 1415). In McDonald, the Court held that arbitration does not preclude a subsequent § 1983 action; Barren-tine states that arbitration has no preclusive effect on a claim under the Fair Labor Standards Act; Gardner-Denver holds that arbitration has no preclusive effect on a Title VII claim; and Buell states that the availability of an action under the RLA does not preclude the filing of a FELA claim.
In discussing this judicial reluctance to give preclusive effect to arbitration decisions, Justice Powell’s opinion for the Court in Alexander v. Gardner-Denver, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), set forth the considerations that were to surface repeatedly in subsequent cases. In Gardner-Denver, an employee, pursuant to a CBA, submitted his race discrimination claim to an arbitrator who ' rejected the employee’s claims. The employee then brought suit in federal court under Title VII, in which he alleged that he had been discharged from his employment as a consequence of racially discriminatory employment practices. The Supreme Court held that the arbitrator’s decision did not have preclusive effect in the Title VII action, despite the fact that the employee’s claim was virtually the same in both actions. As part of its rationale for this holding, the Court noted that Title VII is an important congressionally created enforcement mechanism for remedying racial discrimination and that the federal courts have been given plenary power to enforce the statutory requirements. Id. at 47, 94 S.Ct. at 1019. The Court also emphasized a distinction between asserting contractual rights under a CBA and asserting independent, individually-based statutory rights accorded by Congress. Id. at 49-50, 94 S.Ct. at 1020. Thus, the Court based its rejection of preclu-sive effect, in large part, on its belief that Congress intended the statute to be judicially enforceable and that arbitration does not provide an adequate substitute for judicial proceedings in adjudicating claims under that statute.
The Court further emphasized that arbitration has a well-defined role in the “system of industrial self-government.” Id. at 52, 94 S.Ct. at 1022 (footnote omitted).
As the proctor of the bargain, the arbitrator’s task is to effectuate the intent of the parties. His source of authority is the collective-bargaining agreement, and he must interpret and apply that agreement in accordance with the “industrial common*515 law of the shop” and the various needs and desires of the parties.
Id. at 53, 94 S.Ct. at 1022. Consequently, arbitral procedures, while well-suited to the resolution of arbitral disputes, make arbitration a comparatively inappropriate forum for the final resolution of rights created by Title VII. Id. at 56, 94 S.Ct. at 1023.
[T]he specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land_ Parties usually choose an arbitrator because they trust his knowledge and judgment concerning the demands and norms of industrial relations. On the other hand, the resolution of statutory or constitutional issues is a primary responsibility of courts....
Id. at 57, 94 S.Ct. at 1024,
Justice Powell also stated that
the factfinding process in arbitration usually is not equivalent to judicial factfinding. The record of the arbitration proceedings is not as complete; the usual rules of evidence do not apply; and rights and procedures common to civil trials, such as discovery, compulsory process, cross-examination, and testimony under oath, are often severely limited or unavailable.
Id. at 57-58, 94 S.Ct. at 1024. He also noted that arbitrators are under no obligation to give reasons for their award. Id. at 58, 94 S.Ct. at 1024. Moreover, in the collective bargaining process, the manner and extent to which an individual grievance is presented and the interests of the individual employee may be subordinated to the collective interests of all employees in the bargaining unit. Id. at 58 n. 19, 94 S.Ct. at 1024 n. 19. Similar considerations guided the Court’s determination in Barrentine with respect to the Fair Labor Standards Act. Again, in McDonald, the Court came to a similar conclusion when it held that § 1983 claims are important congressionally created and judicially enforceable statutory rights, and thus that arbitration does not provide an “adequate substitute for a judicial proceeding in protecting the federal statutory and constitutional rights that § 1983 is designed to safeguard.” 466 U.S. at 290, 104 S.Ct. at 1803.
2.
We must now examine in some detail the procedures a PLB utilizes in reviewing a minor dispute and making a final award. We shall, of course, focus on the particular arbitration process at issue in this case.
Under the RLA, the PLB reviews a minor, dispute only after the claim is first presented to the railroad pursuant to its usual reviewing procedures. 45 U.S.C. § 153 First (i). The RLA does not govern the procedures a railroad uses in its investigative hearing. Edwards v. St. Louis-San Francisco R.R., 361 F.2d 946, 953 (7th Cir.1966). Instead, at this stage of a grievance claim, “the dispute is between private parties [the employee and the railroad] and the applicable procedure for •settling the dispute is governed by the contract between them.” Id. at 954. The rights available to an employee, therefore, are governed by the CBA and may vary from agreement to agreement; CBAs are not required to contain a standard set of guarantees for investigative hearings. For example, the employee does not necessarily have the right to be represented by an attorney during the proceedings. Id. In Edwards, this court stated that “[b]asically, all that is required of the initial conference on company property is that ‘men of good faith must in good faith get together in a sincere effort to resolve their differences.’ ” Id. (quoting Rutland Ry. v. Brotherhood of Locomotive Eng’rs, 307 F.2d 21, 41 (2d Cir.1962), cert. denied, 372 U.S. 954, 83 S.Ct. 949, 9 L.Ed.2d 978 (1963)). Of course, a CBA can provide for more stringent procedural guarantees.
C & IM’s minor dispute procedure provides for an investigative hearing regarding Mr. Kulavic’s work absence. The CBA between C & IM and Mr. Kulavic’s union was not included by either party in the record on appeal; thus, we do not know what investigative procedures were guaranteed Mr. Kulavic. We do know, however, that, like most investigations of this nature, the hearing was held on the railroad’s premises and was conducted by railroad officials. At Mr. Kulavic’s hearing, the Hearing Officer was a superintendent of the railroad and the Interrogator was a chief engineer who at that time had
The purpose of the investigative hearing was to determine whether Mr. Kulavic had breached the terms of the CBA by not reporting for work after he had been instructed to do so. The investigation centered on the medical evidence that Mr. Kulavic had provided to C & IM regarding his alleged inability to return to work. Much of the hearing was spent reading letters and medical opinions into the record.
After Mr. Kulavic had submitted to the hearing, he was then able to appeal to a PLB. However, the PLB apparently does not review the railroad’s investigatory proceedings de novo. Mr. Kulavic asserts that PLBs are
the only stage of the disciplinary process not controlled by the railroad, [but they] do not provide a trial de novo to the aggrieved party, ... instead [they] act much like appellate courts in that their review is limited to the record made of the disciplinary proceedings conducted by the railroad at its “investigation.”
Appellant’s Br. at 10. At oral argument, Mr. Kulavic’s counsel could point to no definitive statement in the RLA’s text that mandates this type of review; however, C & IM did not take issue with this characterization of the review available from the PLB.
The extent of the PLB’s review of an investigative hearing poses a difficult question.
Because the PLB here functioned as an appellate tribunal, it was limited to reviewing the record created in the railroad-controlled investigative hearing. Furthermore, C & IM does not dispute that the factfinding process utilized at the hearing was not equivalent to evidentiary procedures used in judicial fact-finding. For these reasons, we do not believe that the PLB’s review could protect adequately the statutory rights set forth in the FELA.
While the informality of an investigative hearing and circumscribed PLB review were intended to provide an expeditious alternative to lengthy court litigation for day-to-day minor labor disputes, these same procedures do not provide sufficient guarantees for reliable factfinding under the FELA. As we have noted earlier, this same rationale formed part of the basis for' the Supreme Court’s decisions in Gardner-Denver, Barrentine, and McDonald which determined that arbitration prior to Title VII, FLSA, or §' 1983 actions could not preclude the statutory actions.
C & IM has the burden of establishing that res judicata or collateral estoppel ought to bar post-termination economic damages in the FELA action.
3.
We find further support for our holding in a decision by the Second Circuit, Coppinger v. Metro-North Commuter R.R., 861 F.2d 33 (2d Cir.1988). In Coppinger, a railroad employee was discharged after he tested positive for the presence of narcotics. He sought, to have his termination rescinded through RLA arbitration proceedings; however, a
The Second Circuit refused to grant such preclusive effect. It determined that the legal and factual issues raised under the Fourth Amendment and § 1983 are arguably beyond the competence of arbitrators whose expertise primarily encompasses industrial relations and the interpretation of CBAs. Furthermore, the PLB’s mandate is to interpret the CBA, not to enforce statutes. The court also stated that the arbitral procedures used by the PLB “are less protective of constitutional guarantees than are the procedures employed in the United States courts.”
In a subsequent case, Benjamin v. Traffic Exec. Ass’n Eastern R.R., 869 F.2d 107 (2d Cir.1989), the Second Circuit determined that an arbitral finding (one apparently not made before a PLB) that employees were not rate bureau employees under the Staggers Act should be given preclusive effect on claims under RICO and for fraud and breach of fiduciary duty. Although the court discussed Coppinger, it found that the concerns expressed in that opinion were inapplicable to the circumstances in Benjamin.
Benjamin explicitly left Coppinger undisturbed and therefore does not alter our analysis. The Benjamin court emphasized and specifically held that the employees had been given a full and fair opportunity to litigate before the arbitration board.
Benjamin is simply not controlling here. We have held already that the factfinding procedures used in Mr. Kulavic’s case are inadequate to convince us that facts allegedly determined in the arbitration should be given preclusive effect in a FELA action. Focusing on the inadequacy of the arbitral procedures, when juxtaposed against the important statutory rights embodied in the FELA, we believe that the situations in Coppinger and this case are analogous.
4.
Finally, we note that, while arising in a different context than'the case'before us, the Supreme Court’s analysis in its recent decision in Astoria Federal Savings & Loan Association v. Solimino, — U.S. -, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991), confirms the correctness of the methodology we have employed. In that ease, which dealt with the circumstances in which the decision of an administrative tribunal — not an arbitration proceeding — ought to be recognized in later judicial proceedings, the Court first noted that the matter of issue preclusion is, fundamentally, a matter of legislative intent. That legislative intent can be discerned only by an examination of “the specific context of the rights at stake, the power of the agency, and the relative adequacy of agency procedures.” — U.S. at -, 111 S.Ct. at 2170.
As we have previously noted, there is no indication that Congress intended to subordinate the rights created by FELA to the strictures of the RLA.
Conclusion
The arbitral award by the PLB should not have been given preclusive effect in Mr. Ku-lavic’s subsequent FELA action. In his prayer for relief, Mr. Kulavie requested a new trial only on the issue of damages. Because the trial was bifurcated into a liability phase and a damages phase, this relief is appropriate. Furthermore, because we are resolving the case in this manner, C & IM’s cross-appeal regarding alleged evidentiary errors in the damages phase of trial is moot. Any resolution of those claims on appeal would be advisory. For the foregoing reasons, we reverse the ruling of the district court regarding the preclusive effect of the PLB award, remand for a new trial on damages in accordance with this opinion, and dismiss C & IM’s claims on cross-appeal. Mr. Kulavie may recover his costs in this court.
REVERSED AND REMANDED AND CROSS-APpeal Dismissed.
. In a state trial, Mr. Kulavic's supervisor was found guilty of battery.
. The labor member of the PLB dissented from the majority's award.
. Both parties made various objections during the course of the hearing, but we do not know what rules were the basis of these objections. Nor do we know the effect of such objections. As far as we can tell from the transcript of the investigation, the Hearing Officer’s response to these objections was that the objections were a matter of record and would be given due consideration.
. We have previously noted that it is not entirely clear that a PLB is limited to reviewing only the evidence presented in the investigative hearing, although we have acknowledged that arguably the introduction of new evidence is prohibited at the arbitral stage. Brotherhood Ry. Carmen Div. v. Atchison, T. & S.F. Ry., 956 F.2d 156, 159 (7th Cir.1992). In further support of this proposition, one treatise on arbitration has stated that
[i]f the arbitration tribunal is serving essentially in an appellate capacity there is obviously strong reason to confine the evidence to what was considered below. In this regard, the rules of the National Railroad Adjustment Board require that all data submitted in support of the party's position must affirmatively show the same to have been presented to the other party and made a part of the particular question in dispute.
Frank Elkourj & Edna A. Elkourj, How Arbitration Works 304 (4th ed. 1985) (citations omitted). Furthermore, we note that the regulations for the NRAB state that "all data submitted [to the Board] in support of [either the carrier's or the employee's] position must affirmatively show the same to have been presented [to the other party] and made a part of the particular question in dispute.” 29 C.F.R. § 301.5(d) and (c).
As we stated in Atchison, it is particularly likely that a PLB is limited to reviewing the evidence presented in the "on premises” investigation. This is true because the RLA requires an employee to exhaust all of the usual grievance procedures before PLB review will be allowed.
The requirement of exhaustion implies, in turn, that a party may not raise an issue, or present new evidence concerning an old issue, for the first time at the arbitration stage, for by doing so he would bypass the earlier stages and thus fail to exhaust the remedies provided at those stages.
. These cases deal with the question of whether arbitration can totally and definitively preclude judicial proceedings on the identical claim. By contrast, as C & IM acknowledges, Mr. Kulavic has a separate right to FELA damages and some of the elements of that claim were not addressed by the PLB. Of course, the rationales of Gardner-Denver, Barrentine, McDonald, and also Buell, are equally applicable here in determining the adequacy of the fact-finding process to safeguard a separate substantive statutory claim.
. See Blonder-Tongue Labs., Inc. v. University of III. Found., 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788 (1971) (stating that res judicata is an affirmative defense); La Preferida, Inc. v. Cerveceria Modelo, S.A. de C.V., 914 F.2d 900, 906 (7th Cir.1990) (holding that party claiming collateral estoppel effect has the burden of proving its appropriateness); 18 Charles A. Wright et al.. Federal Practice and Procedure § 4405 at 38 (1981) (stating that "the burden of establishing preclusion is placed on the party claiming it”).
. The court specifically noted that
[a]rbitration does not carry with it the right to a trial by jury; arbitrators are not generally required to give the reasons for their decisions; the record of arbitral proceedings generally is not as complete as a trial record; judicial review of Board decisions is more limited than review of district court proceedings; the Federal Rules of Evidence and of Civil Procedure do not apply; and other rights such as testimony under oath, cross-examination, discovery, and compulsory process are restricted. In short, where suits are tried is often as important as the substantive rights sought to be vindicated.
Coppinger, 861 F.2d at 39.
. Because we distinguish the two Second Circuit cases on these grounds, we need not decide whether we support the Benjamin court's analysis of the difference in preclusive effect between res judicata and collateral estoppel.
.The court described the arbitration process as follows:
Following commencement of this action, defendants moved to compel arbitration on the Staggers Act claim. The employees agreed to submit that count to binding arbitration on a classwide basis. Both parties set up informal procedural rules to govern the arbitration proceeding. They agreed to presentation of oral or written testimony, to extensive briefing and did, in fact, engage in informal discovery. At the hearing the' plaintiffs cross-examined the defendants' witnesses who testified orally, and could have, if they had chosen, called in and cross-examined those witnesses who submitted their testimony on paper.
Benjamin, 869 F.2d at 109.
. This court has recently held that RICO claims premised on a railroad’s alleged violation of its CBA are preempted by the RLA. Underwood v. Venango River Corp., 995 F.2d 677 (7th Cir.1993). Because the RICO claims "depended solely upon an interpretation of the rights created in the collective-bargaining agreement," we stated that the action would not vindicate substantive rights independent from the CBA. 995 F.2d at 685. Thus, the RLA controlled. This is not the case, however, with Mr. Kulavic's FELA claim. As we earlier noted, the FELA does provide for substantive statutory rights independent of the RLA. Interpretation of the CBA is not required to construe those rights.
. As C & IM acknowledged at oral argument, the ultimate determination by the PLB was that the railroad had appropriately terminated Mr. Kulavic's employment; in other words, the investigative hearing had not been improper or fraudulent. The underlying rationale of the PLB's award seems to be that Mr. Kulavic did not provide sufficient medical evidence to excuse his failure to return to work when instructed to do so by C & IM, thereby breaching the provisions of the CBA and allowing the railroad justifiably to terminate his employment. The award states that
[tjhere was no evidence presented in the investigation that claimant was being withheld from Carrier’s service by any doctor. It is clear from the record that claimant was attempting to substitute his personal opinion as to his ability to return to work for the professional opinions of the several medical doctors involved.
R. 55, part 8 at 4. In this litigation, however, C & IM asserts that the focal point of the award was Mr. Kulavic’s physical ability to perform the duties of his former job. The railroad contends that the PLB, after reviewing the medical documents presented to it, determined that Mr. Ku-lavic was physically fit to return to work and that, the PLB ruled out any possibility that he is entitled to future wages and benefits from the date of his discharge as recompense for his alleged injuries. Nowhere in its award, however, does the PLB specifically state that it has determined Mr. Kulavic to be physically able to perform his former duties. Although the district court was persuaded by C & IM’s interpretation of the award, we believe the matter is far from clear. The language can just as easily be read to support the contention that Mr. Kulavic simply failed to present sufficient medical evidence to the railroad as required under the CBA, choosing
Concurrence Opinion
concurring.
This case poses a rather tricky question of issue preclusion. The court’s opinion represents a very thorough elaboration of the relative scope and purposes of the FELA and the RLA as well as the particular tension between the two statutes with regard to Ku-lavic’s claim. At the most basic level, neither party disputes that Kulavie was entitled to recover damages under the FELA for the harm he suffered at the hands of his supervisor. See Lancaster v. Norfolk and Western Ry. Co., 773 F.2d 807, 814-15 (7th Cir.1985), cert. denied, 480 U.S. 945, 107 S.Ct. 1602, 94 L.Ed.2d 788 (1987). His supervisor’s conduct that precipitated Kulavic’s injuries constitute an unauthorized touching of him and, although intentional rather than negligent, nevertheless fall within the bounds of the FELA. The principal question then is whether Kulavie is entitled to seek all the damages to which he maintains he is entitled.
In his complaint, Kulavie claimed a right to recover for disability from his injury, pain and suffering, medical expenses, lost earnings, and loss of earning capacity and fringe benefits. Chicago & Illinois Midland Railway Company (“C & IM”) contested only whether he has the right to present evidence to the jury of any wages or earning capacity or fringe benefits lost after it terminated him. Thus, the district court’s denying Ku-lavic the right to offer evidence of any losses after his discharge did not totally deprive him of his FELA claim but merely circumscribed it in a fairly limited way (assuming that pain and suffering constitutes the major component of a personal injury claim).
To determine whether Kulavie can present evidence on his post-termination damages, the court’s opinion carefully retraces the sometimes blurry line between the RLA and the FELA. For example, Atchison, Topeka and Santa Fe Ry. Co. v. Buell, 480 U.S. 557, 107 S.Ct. 1410, 94 L.Ed.2d 563 (1987), contains some rather expansive language regarding the types of negligence claims by railroad employees that may be brought under the FELA. Apparently taking Buell’s lead, the court reasons that because the RLA does not preempt FELA actions, a PLB order arrived at through RLA arbitration procedures does not have any preclusive effect on a FELA action. Analogizing from cases such as Alexander v. Gardner-Denver Co., 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974), McDonald v. City of West Branch, 466 U.S. 284, 104 S.Ct. 1799, 80 L.Ed.2d 302 (1984), Barrentine v. Arkansas-Best Freight System, Inc., 450 U.S. 728, 101 S.Ct. 1437, 67 L.Ed.2d 641 (1981), and Coppinger v. Metro-North Commuter Railroad, 861 F.2d 33 (2d Cir.1988), the court maintains that the nature of the grievance process
On the present facts, however, I believe that the damages claimed by Kulavic do not fall unequivocally outside of the RLA regime for resolving workplace grievances. In this regard, I find Benjamin v. Traffic Executive Ass’n Eastern Railroads, 869 F.2d 107 (2d Cir.1989), to be more germane than Copping-er. For Kulavic to assert his personal injury claim in court under the FELA and avoid the preclusive effect of the RLA, his claim must, as a preliminary matter, be based on a specific provision of FELA, that is, Congress must have intended that such actions be litigated in FELA suits.
Every ... railroad ... shall be liable in damages to any person suffering injury while he is employed by any such carrier in such commerce ... for such injury or death resulting in whole or in part from the negligence of the officers, agents, or employees of such carrier.
45 U.S.C. § 51 (1986). At first glance, his damages action falls squarely within this provision. However, a somewhat different characterization of Kulavic’s action does suggest that the FELA may not be broad enough to accommodate him in recovering all the damages he seeks. One could properly regard his claims for lost wages and fringe benefits as discharge-related claims. And an extremely literal reading of this FELA provision may allow recovery only for injuries that accrued during the tenure of the employee with a given carrier. Because any lost wages and benefits precluded by the district court accrued after Kulavic’s termination, he would not be able to pin them on this (or any other) statutory provision in the FELA. Kulavic would probably respond that even those damages can be traced back to the original altercation with his supervisor; moreover, the PLB did not literally address whether he was entitled to these post-discharge wages or fringe benefits during its termination hearing. It resolved only whether the discharge of Kulavic was lawful. Accordingly, I believe that the only issue relevant to this court’s review should be the estoppel effect of Ku-lavic’s termination, the legitimacy of which he did not challenge earlier and should not be able to challenge now. In this regard, I would focus not on the competence of those administering the termination hearing, itself the subject of collective bargaining, or the PLB, an 'entity sanctioned by Congress under the RLA, see 45 U.S.C. § 153 (1986), but on the reach of their conclusions.
One of the goals of issue preclusion is to put to rest'those matters that a party has had an “full and fair opportunity to litigate.” See Blonder-Tongue Laboratories, Inc. v. University of Illinois Foundation, 402 U.S. 313, 328, 91 S.Ct. 1434, 1442, 28 L.Ed.2d 788 (1971). Kulavic contends that because the factfinding by the PLB is distinct from, if not inferior to, judicial factfinding, the PLB termination decision should not have preclusive effect on the post-discharge losses. See Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 n. 15, 99 S.Ct. 645, 655 n. 15, 58 L.Ed.2d 552 (1979) (“differences in available procedures may sometimes justify not allowing a prior judgment to have estoppel effect in a subsequent action even between the same parties”). More to the point, despite a possible overlap in the evidence reviewed by the PLB and that which Kulavic would present in federal court, the PLB did not have occasion to consider his future economic damages.
In terminating Kulavic, the PLB deemed that he was fit to return to work. Any demands by Kulavic for post-discharge
. Whether estoppel of certain damages claims by means of the PLB's decision to uphold Kulavic's termination “is intended by the legislature" is another way of asking whether Congress intended for sufch claims to be brought under the FELA. See Astoria Federal Sav. & Loan Ass'n v. Solimino, - U.S. -, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991).
. Finally, I would note that although the court dismissed C & IM’s cross appeal on its right to set off against the FELA judgment, the availability of set off to C & IM is not in dispute. See 45 U.S.C. § 55, Burlington Northern R.R. Co. v. Strong, 907 F.2d 707 (7th Cir. 1990).
