Davis v. United Airlines, Inc., 2001-AIR-5 (ARB Apr. 25, 2002)

U.S. Department of Labor

Office of Administrative Law Judges Seven Parkway Center - Room 290 Pittsburgh, PA 15220 (412) 644-5754 (412) 644-5005 (FAX)

Issue date: 25Apr2002

CASE NO.: 2001-AIR-5

In the Matter of

GEORGE T. DAVIS, Jr. and DIANE DAVIS,
    Complainants

    v.

UNITED AIR LINES, INC.,
    Respondent

   A hearing will be conducted under the employee protection provisions of the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century ("AIR"), 42 U.S.C. § 42121, on April 30, 2002, in Denver, Colorado.

   On April 10, 2002, United Airlines (UAL) submitted a Motion for Court to Take Administrative Notice of a Seventh Circuit Opinion, United Air Lines ("UAL)"v. International Association of Machinists and Aerospace Workers ("IAMAW"), 243 F.3d 349 (7th Cir. 2001). The complainants, George and Diane Davis, are both UAL employees and members of the IAMAW union. UAL contended there and here that Mr. Davis participated in a union-orchestrated, systematic ,work slowdown or work-to-rule action which resulted in flight delays. The slowdown was conducted in the midst of contentious contract negotiations between the IAMAW union and UAL. The Circuit Court of Appeals reversed the District Court's denial of the injunction UAL had sought against the IAMAW union finding UAL had submitted "clear proof" of the IAMAW union's complicity.

   UAL submits that while the case involved a "peripheral" matter, "the facts and circumstances of our present dispute between Complainants and United must be viewed through the lens of this larger national context." UAL correctly argues the doctrine of administrative notice in administrative proceedings is broader than in traditional cases. It cites Castillo-Villagra v. Immigration and Naturalization Service ("INS"), 972 F.2d 1017 (9th Cir. 1992), for the proposition that an administrative law judge should take notice of adjudicative facts whenever it will be useful in making a decision, i.e., the rule of convenience.

   UAL argues, without presenting any evidence to that effect, that absent the taking of judicial notice, UAL would suffer great expense and burden to establish the facts found by the federal court. UAL cites no authority approving of the taking of administrative notice of the decision in another case not involving the same court.

   On April 24, 2002, the complainant's counsel responded to the Motion arguing that it would be inappropriate to notice the Seventh Circuit-UAL decision, under the rules applicable to administrative proceedings, the F.R.E.'s, and case law. He admits notice may be taken that various factual findings were made by another court, but not for the truth of those findings, unless they satisfy the "indisputability" requirement of F.R.E. 201(b). The complainant argues he was not a party to the Seventh Circuit-UAL case and that the decision rested, at least in part, on what he categorizes as false information. He distinguishes the I.N.S. case primarily relied upon by United. Finally, the complainant argues taking notice would be outweighed by the unfairness and that United should be required to present actual evidence in support of its defense.

   Title 29, C.F.R. Part 18, sets forth the Rules of Practice and Procedure for administrative hearings before the Office of Administrative Law Judges as well as the rules of evidence. When those rules are inconsistent with a rule of special application as provided by statute, executive order, or regulation, the latter controls. 29 C.F.R. § 18.1(a). The Federal Rules of Civil Procedure (FRCP) apply to situations not controlled by Part 18 or rules of special application.¹

   The Administrative Procedures Act, 5 U.S.C.§ 555, which is also applicable to matters before the Office of Administrative Law Judges ("OALJ") states:

When an agency decision rests on official notice of a material fact not appearing in the evidence of record, a party is entitled, on timely request, to an opportunity to show to the contrary.

   Some distinction has been made concerning the broad scope permitted in taking of judicial notice of "legislative facts," which is not explicitly regulated by any of the above-cited authorities. Such facts "include those facts which judges . . . believe and though not indisputable, are needed in thinking about difficult problems of law and policy." Epstein, Katz, & Grotheer, Jr., Moore's Federal Practice, Vol. 10, § 201.10 (1989). Moore points out that proscribing this type of legislative fact would "stultify the growth of judge-made law." Id at II-29.² The limitation of the federal rule to "adjudicative facts" was "a conscious decision on the part of the draftsmen to allow the courts to take notice of legislative facts without the necessity of hearing evidence to rebutting those facts."³

   The courts have long recognized the propriety of taking judicial notice of agency rules and regulations. Roemer v. Board of Public Works of Maryland, 426 U.S. 736, 742, n. 4, 96 S.Ct. 2337, 2343 n. 4, 49 L.Ed. 2d 179 (1976).

   The Seventh Circuit's opinion makes it clear that the union and UAL disputed the facts of the case. The Seventh Circuit matter is collateral to the issues in the present case. However, it may be both helpful and relevant to establish the factual background in the case sub judice. Relitigating the facts of the earlier dispute between UAL and the union, in this case, would precipitate an untenable and unnecessary burden on the parties and this court. The law is such that I may take administrative notice of the facts found in that proceeding and I do so. However, I will not accept those facts as true, but rather only to show what the work atmosphere at UAL was and the premises UAL was operating under during the time frame surrounding the allegations in the present matter.⁴

   I previously mentioned that the parties should not expect to relitigate the UAL-Seventh Circuit case. The facts here appear to be such that the complainant may be able to establish a prima facie case. In that event, it will be United's burden to prove by clear and convincing evidence that it either would have taken the same unfavorable personnel action in the absence of protected activity or had a legitimate purpose or motive for that action. It appears that would be the appropriate time for the UAL-Seventh Circuit matter to be raised. If United then meets its burden, the complainant will have the ultimate burden of demonstrating the respondent's stated legitimate reason is a pretext. In that event, the complainant need not prove that other mechanics were not participating in a union-related slowdown, i.e., that the Circuit Court decision was wrong, but rather he must prove United's stated legitimate reason is a pretext. That need not be done by showing the Circuit Court decision was wrong. Rather, the complainant may wish to focus on his own performance. Thus, neither party would be expected to prove the facts of the UAL-Seventh Circuit litigation or relitigate that matter before the undersigned.

¹ Rule 201 of the Federal Rules of Evidence governs judicial notice of adjudicative facts. It provides:

(a) Scope of rule. This rule governs only judicial notice of adjudicative facts.
(b) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either

(1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

² Davis, "A System of Judicial Notice Based On Fairness and Convenience," Perspectives of Law, 69, 82 (1964).

³ Advisory Committee's Notes and Commentaries on FRE 201(a), cited in Stein, Mitchell, & Mezines, Administrative Law, § 25.04, page 25-31 (1990).

⁴ This ruling is much like a hearsay ruling where a statement is considered not for the truth of the matter contained therein, but rather only for the fact it was said and/or for the impact the statement had on the listener.