On appeal from the United States District Court for the Western District of Pennsylvania. D.C. Civ. No. 90-1222
Before: Cowen, Nygaard, Circuit Judges, and Garth, Senior Circuit Judge.
The Association of Flight Attendants, AFL-CIO (the Union), appeals from the district court's order granting summary judgment in favor of appellee USAir, Inc. and directing that certain evidence be admitted at the grievance arbitration of a former USAir flight attendant. The Union appeals that portion of the order directing admission of the evidence, contending that questions of admissibility are procedural and to be decided by the arbitrator, not the courts. We agree and will reverse that portion of the district court's order.
The facts are not in dispute. "Doe", a flight attendant employed by USAir was charged with possession of a controlled substance, unlawful delivery, possession with intent to deliver, and criminal conspiracy.*fn1 He pleaded guilty to one count of unlawful possession of cocaine. Under Pennsylvania law, a guilty plea to a nonviolent drug charge may be treated as a conditional plea and be held in abeyance until the defendant successfully completes a drug treatment program. 35 Pa.S.A. § 780-118. The program is known as Probation Without Verdict (PWV).*fn2 The state court issued a PWV Order specifying that Doe pay the cost of prosecution, a $500 fine, and complete six months of probation. Doe complied with all conditions of his probation and paid all costs and fines. Pursuant to 18 Pa.C.S.A. § 9122 and 35 Pa.C.S.A. § 780-119, the court ordered that all records pertaining to his prosecution and arrest be expunged and destroyed in October 1989, six months after the PWV.
The Union is the exclusive representative of flight attendants employed by USAir. The Union and USAir are parties to a collective bargaining agreement covering the terms and conditions of employment for USAir's flight attendants. Conforming to section 204 of the Railway Labor Act, 45 U.S.C. § 184, the bargaining agreement sets forth detailed procedures for resolving disputes arising between the Union and USAir. It provides a four-step grievance procedure culminating in binding arbitration before a five member System Board of Adjustment. Doe was a member of the Union.
When USAir learned of Doe's arrest, it suspended him without pay until the criminal charges against him were resolved. After the court placed Doe in the PWV program, USAir terminated his employment retroactive to the date of his suspension. Doe immediately filed a grievance with USAir under the terms of the bargaining agreement seeking to be reinstated. His grievance was denied at the first two levels of the four-step grievance procedure. At the third level, in August 1989, Doe represented to the four member board that his criminal record was soon to be expunged. At about the same time, the board deadlocked on his grievance and the events following brought the parties into court before they reached the fourth and final step in the arbitration process.
Throughout this arbitration Doe was represented by Ben Elliott, a Union staff attorney, and by John Havey, a private practitioner. USAir was represented by John Hedblom. After the four member board deadlocked, Hedblom spoke with Elliott and requested a prompt hearing before the System Board so he could present evidence of Doe's arrest and prosecution before the court expunged his records. In response, Elliott orally agreed to proceed in the same manner as the parties had done in another, but identical case (the Malinic case): that is, the parties would stipulate to the facts of the grievant's arrest and prosecution, preserving this evidence for arbitration. Hedblom agreed to postpone the grievance proceedings for several months, relying upon his agreement with Elliott. The record does not indicate that either Doe or Havey agreed to the stipulation or to permit Doe's record to be introduced into evidence at his arbitration. USAir represented at oral argument that it entered the stipulation because it knew that using Doe's PWV without his consent would violate Pennsylvania law. Indeed, Title 35 section 780-119(b) of Pennsylvania's Health and Safety Code provides that:
Any expunged record of arrest or prosecution shall not hereafter be regarded as an arrest or prosecution for the purpose of any statute or regulation or license or questionnaire or any civil or criminal proceeding or any other public or private purpose. No person shall be permitted to learn of an expunged arrest or prosecution, or of the expunction, either directly or indirectly. Any person, except the individual arrested or prosecuted, who divulges such information in violation of this subsection shall be guilty of a summary offense.
Thus, unless the record is divulged by Doe, it would be a violation of Pennsylvania law to consider his expunged arrest record in his grievance proceeding. See Warren County School District v. Carlson, 53 Pa. Commw. 568, 418 A.2d 810 (Pa. Commw. 1980) (teacher's expunged record of a criminal prosecution for possession of marijuana was inadmissible at his termination hearing); See also Commonwealth v. Armstrong, 495 Pa. 506, 434 A.2d 1205 (Pa. 1981) (unless State demonstrates overriding societal interest in retaining record of arrest, person who successfully completes an accelerated rehabilitative Disposition program is entitled to have his record expunged).
Soon after the court expunged Doe's records, John Havey contacted Elliott and told him that Doe would not waive his rights under Pennsylvania law by entering into the stipulation. Instead, Doe intended to assert his statutory right of non-disclosure and did not want any evidence of his arrest or prosecution admitted at arbitration. Elliott informed Hedblom, who replied that this constituted a breach of their oral agreement. USAir then refused to arbitrate this grievance before the System Board.
In July 1990, the Union sued in the U.S. District Court seeking to compel USAir to arbitrate Doe's grievance. USAir counterclaimed, seeking declaratory relief. In its pleadings, USAir acknowledged that it was prepared to arbitrate the grievance but sought a declaratory judgment enforcing the oral agreement between the attorneys for the Union and USAir to admit evidence of Doe's PWV.*fn3
On May 21, 1991 the U.S. Magistrate Judge submitted a Report and Recommendation concluding that the grievance "should proceed to arbitration preserving the right of USAir to introduce evidence of (Doe's) criminal conviction." The district court adopted the Report ...