Noting that an RLA collective bargaining agreement is a federal contract governed and enforceable by federal law in the federal courts,(43) the Tenth Circuit concluded that "[t]he applicability of equitable tolling to the agreement in question [was] not in doubt."(44) Even so, the court admittedly did not pass on the merits of the tolling issue.(45) Rather, it held that the NRAB's "failure to address the merits of plaintiff Sheehan's claim denied him due process"(46) and remanded to the trial court for further remand to the NRAB.
They assert that, by this language, the Court itself passed on the due process claim, holding that it would only have been a violation of Sheehan's rights if the NRAB had refused to hear the claim.
It could also be argued that in the above quoted language, the Court said that the Tenth Circuit was "simply mistaken" if it thought that the NRAB did not hear Sheehan's tolling argument.(57) Then the Court said that review on the merits, on the other hand, would "exceed the scope of the [Tenth Circuit's] jurisdiction."(58) This interpretation night seem to imply that the Tenth Circuit only exceeded its jurisdiction if it attempted to review an argument already considered by the NRAB.
The RLA requires that the NRAB consist of an equal number of representatives appointed by labor and management.(83) If the NRAB fails to agree because of a deadlock or the inability to secure a majority vote, it must appoint a neutral person to break the tie.(84) The RLA does not explicitly require such proportionality for ad hoc tribunals.
The third "core" requirement, that the litigant have an opportunity to present reasons why the action should not be taken,(91) is met by procedural rules promulgated by the NRAB pursuant to its rulemaking power under the RLA.(92) Under these rules, litigants are required, in a written submission to the NRAB, to "set forth all relevant, argumentative facts, including all documentary evidence submitted exhibit form."(93)
First, disclosure of evidence between the parties is among the procedures necessary in some contexts but generally considered less important than the "cores."(97) The NRAB's procedural rules encourage the parties to make a "joint statement of facts."(98) To the extent that opposing evidence is contained in the joint statement, each party obviously is aware of it.
Fourth, oral hearings are required in some cases.(103) Although the rules of procedure promulgated by the NRAB pointedly encourage purely written proceedings, the NRAB will grant an oral hearing whenever requested by either party.(104)
However, the importance of cross-examination is perhaps overestimated.(106) Even in jury trials, where cross-examination is considered necessary in order to expose for the jury the weaknesses of evidence,(107) it may often be more a hinderance than an asset, due to the risk of injury to the examiner's case.(108) Furthermore, the emotional power of cross-examination is diminished before expert presiding officers such as NRAB members.(109) The Administrative Procedure Act, for instance, eschews an unlimited right of cross - it requires only "such cross-examination as may be required for a full and true disclosure of the facts."(110) The absence of cross-examination, therefore, does not necessarily violate the Due Process Clause."(111)
The statute itself announces that its purpose is to "avoid any interruption to commerce or to the operation of any carrier engaged therein [and] to provide for the prompt and orderly settlement of all disputes."(116) This goal can be achieved by the NRAB's informal mechanisms and by the availability of even less formal tribunals inferior to the NRAB.
320 (1972), disputes that are within the jurisdiction of the NRAB may not be heard by state or federal courts but must be referred to the NRAB.
Sheehan argues persuasively that he diligently and in a timely manner pursued one of the two avenues open to him following his discharge, and that it is not in the interests of justice to deny the plaintiff relief simply because he elected to pursue his state court remedies rather than to file an appeal to the NRAB when both alternatives were open to him.
(55.) See Shafii, 22 F.3d at 64 (stating that the Sheehan Court "initially disposed of the due process violation as nonexistent and then rebuffed the Tenth Circuit for its expansive ruling on their ability to review 'purely legal questions'"); Steffens, 797 F.2d at 449 n.5 ("[The Court] noted that for the [Tenth Circuit] to reject the NRAB's decision in this matter because it disagreed would be to exceed the scope of its review powers.