APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA (D.C. Civ. No. 77-0890)
Before: SEITZ, Chief Judge, ROSENN and SLOVITER, Circuit Judges
Union Railroad Company (the Railroad) appeals from the district court's order, as amended, setting aside a decision of Public Law Board 1782 (the Board), directing removal of a member of the Board, and ordering a denovo investigative hearing into the grounds for terminating the employment of appellee Sam Godich.
In 1976, Sam Godich, a member of the United Steelworkers of America Local 1913 (the Steelworkers), was dismissed from employment with the Railroad following an investigative hearing into charges of insubordination, inciting and leading a work stoppage, and violating work rules. According to the Railroad and later findings of the Board, Godich was represented at the investigative hearing by a local Steelworkers official named Aaron. Pursuant to the Railway Labor Act, as amended, 45 U.S.C. §§ 151-188 (1976), the Steelworkers challenged Godich's dismissal before the Board.The Board was composed of a "carrier" member, a "union" member, and a "neutral" member. See id . § 153 Second. The union member, Harry J. Osborne of the Steelworkers, purported to represent Godich at the Board hearing. The Board rejected Godich's challenge to his termination after finding that the Railroad's charges were supported by substantial evidence.
Godich retained private counsel and petitioned for review of the Board's order in federal district court. His contentions included a claim that he was denied his right to counsel during the Board hearing, in violation of section 153 First (j). Because the district court found the record inadequate to review this contention, it remanded to the Board. In this remand hearing, held without notice to Godich, the Board found that Godich had been represented by Osborne at the first Board hearing and had never requested other representation. Based on this finding, the district court concluded that Godich had waived has right to counsel at the first Board hearing. It dismissed his petition.
Godich appealed the dismissal to this court, which reversed the district court's finding of waiver because Godich had not received notice of the first remand Board hearing. The case was remanded to the district court so that it in turn could remand to the Board to conduct a second remand hearing, with proper notice to Godich, on the question of waiver of counsel. United Steelworkers of America Local 1913 v. Union Railroad, 597 F.2d 40, 42-43 (3d Cir. 1979) (Godich I ).
At the second remand hearing, at which Godich was present and represented by counsel, Godich raised new challenges to his termination and the hearings related to it. He first claimed that he had been denied counsel at the original investigative hearing. The transcript of that hearing revealed that Godich selected Aaron to represent him, but Godich claimed that the transcript did not correctly reflect what he had said. After considering these contentions, the Board found that Godich had selected Aaron to represent him at the investigative hearing and had never before claimed that he had been denied representation of his own choosing at the investigative hearing.
Godich also claimed that Osborne, the Steelworkers member of the Board, had acted improperly in serving both as adviser to Godich at the first Board hearing and as a Board member, and that he and Osborne had personal conflicts. The Board concluded that Godich was not denied the right to representation at the first Board hearing because he never requested outside legal counsel or representation by anyone other than Osborne. The Board determined that Godich "simply did not avail himself of the option of requesting his own legal representation, if indeed he desired it at that time, during the handling of his case before this Board."
Godich filed a supplemental petition for review in the district court, claiming that the record did not support the Board's finding that he had not been denied the right to counsel. The district court first considered the contention that Godich had been denied counsel of his choosing at the investigative hearing in contravention of rule 26 of the contract between the Railroad and Local 1913.*fn1 Relying on testimony by Godich that he had explicitly requested counsel and on the absence of an explicit waiver of legal counsel, the court held that Godich had been denied his right to counsel. The court did not refer to the transcript of the investigative hearing, which indicated that Godich had selected Aaron as his representative.
The court next considered Godich's right to counsel at the first Board hearing. The court noted that the record contained no written authorization for the Steel-workers to represent Godich and no written or express oral waiver of the right to counsel. It credited Godich's testimony that Osborne had told him that he would be represented by legal counsel, but that no counsel was provided, and that Godich's request for a postponement of the Board hearing to secure counsel was denied. The court acknowledged that the Board's findings to the contrary would ordinarily be binding. The court rejected these findings, however, for the following three reasons: (1) Godich had not expressly waived his right to counsel, (2) Osborne "could not play the dual role of being a member of a Public Law Board, and, at the same time, effectively represent the petitioner before the same Board" and (3) personal disputes between Osborne and Godich enabled Osborne to be neither an effective representative nor an effective Board member. The court concluded that Godich had been denied his right to counsel.
The court therefore set aside the Board's findings and ordered a "new and complete [Board] hearing on all charges," a hearing at which Godich "is to be accorded his right to legal counsel." The court further directed that Osborne not be a member of the Board for this third remand hearing. The court subsequently amended the order by also requiring the newly constituted Board to remand the case to the Railroad for a de novo investigative hearing. The ...