(U)pon the eternal principles of justice . . . (a proceeding without notice) is but a solemn fraud, even if it is clothed with all the forms of a judicial proceeding. Bradstreet v. Neptune Insurance Co., 3 F.Cas. No. 1, 793, 1184, 1187 (C.C.D.Mass.1839) (No. 1, 793).

Because of the violation of his right to notice, the judgment below must be reversed and the case remanded to the administrative agency for a hearing in compliance with the law.

After Godich received notice of his dismissal, an "investigatory hearing" was held and Godich was found to have been insubordinate and to have incited and led a work stoppage. Exercising his rights under the Railway Labor Act of 1934, as amended, 45 U.S.C. §§ 151-188, Godich challenged his dismissal before Public Law Board No. 1782 (the Board).1 After a hearing the Board found that Union Railroad charges were supported by substantial evidence and denied his claim.

Godich then petitioned for review of the Board's award in the United States District Court for the Western District of Pennsylvania, pursuant to 45 U.S.C. § 153 First (q).2 He challenged the Board's award on a number of grounds, including a claim that he has been denied his right to counsel during his hearing before the Board, in violation of 45 U.S.C. § 153 First (j).3

The Railway Labor Act limits judicial review of the Board's award. A court may overturn a Board award if the Board acted fraudulently or corruptly, or if the Board failed to comply with the requirements of the Act. 45 U.S.C. § 153 First (q).4 The district court concluded that the Board had not exceeded its jurisdiction and that there was no evidence of fraud or corruption. However, because it felt that the record was not adequate to review Godich's claim that he had been denied the right to counsel, it remanded the case to the Board for further findings. United Steelworkers of America, Local 1913 and/or Godich v. Union Railroad Co., No. 77-890 (W.D.Pa. April 14, 1978).

On remand the Public Law Board found that at the initial hearing before the Board Godich had been represented by the Staff Representative of the United Steelworkers and that "at no time during the hearing did Godich ask to be represented by anyone other than (the Staff Representative)." Union Railroad Co. v. Steelworkers of America, Local 1913, Supp. to Award No. 1, Case No. 1 (Pub.Law Bd. 1782, May 22, 1978).

The district court, upon receipt of the Board's findings, concluded "that petitioner effectively waived his right to legal counsel" at his first Board hearing and dismissed the petition. United Steelworkers Local 1913 and/or Godich v. Union Railroad Co., No. 77-890 (W.D.Pa. June 9, 1978).

Godich has requested this court to reverse the decision of the district court on a number of grounds, including a claim that the Public Law Board failed to notify him that it was convening to determine whether his right to counsel at the initial hearing had been denied. Godich asserts that the failure of the Board to notify him of the second hearing violated his rights of notice under the Railway Labor Act and the due process clause of the United States Constitution.⁵ We hold that the plaintiff had a right to receive notice of the second Board hearing and that this right was violated. We will, therefore, reverse the determination of the district court that Godich waived his right to counsel at the initial hearing before the Board and remand for further proceedings. Because the remand of this question may resolve this appeal, we express no opinion on the other issues raised by the plaintiff.6

As we review Godich's claim that the Board reconvened without providing him notice of the hearing, we are reminded of the words of Justice Field in Windsor v. McVeigh, 93 U.S. (3 Otto) 274, 277, 23 L. Ed. 914 (1896). Justice Field explained that notice of a hearing and the right to participate in the hearing are at

the foundation of all well-ordered systems of jurisprudence. (For) (w)henever one is assailed in his person or his property, there he may defend, for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligence and conscience of all nations.

Congress, in its enactment of the Railway Labor Act, provided a mechanism for the orderly resolution of disputes arising out of collective bargaining agreements involving the railway industry. See, Elgin, J. & E. Ry. Co. v. Burley, 325 U.S. 711, 65 S. Ct. 1282, 89 L. Ed. 1886 (1945), Aff'd on rehearing, 327 U.S. 661, 66 S. Ct. 721, 90 L. Ed. 928 (1946). In drafting this legislation Congress took care to ensure that notice of hearings would be required and included among the provisions of the Act a requirement that:

the Adjustment Board shall give due notice of all the employees . . . involved in any dispute submitted to them. 45 U.S.C. § 153 First (j).

Under this provision an employee, like Godich, who may be permanently terminated from his source of livelihood, must have notice of and the ability to participate in the hearing which will determine his future.7

The Public Law Board on remand from the district court failed to comply with the statutory mandate. Our review of the record indicates that the only information Godich or the counsel who represented him before the district court received, was a copy of a letter from the National Mediation Board to the Public Law Board authorizing it to reconvene to consider the remand order of the district court. This is not sufficient to comply with the Act's notice requirement. The petitioner must have notice of the date and time of the hearing and should be provided an opportunity to be heard in person, or by a representative, as required by 45 U.S.C. § 153 First (j).8

Neither the Appellant nor his counsel ever requested an opportunity to appear before the reconvened Board. If in fact the Appellant was anxious to have additional counsel at the Board's second session, he could easily have made this request either to Judge Miller or the Board itself. This was not done. It would seem that Godich was satisfied to have the Staff Representative . . . continue to represent him as he had in the past.

We are not persuaded by this argument and remain convinced that the second hearing violated the Act. The notice requirement of the Act clearly indicates that Godich or his presently retained counsel should be given notice, and this was not done. In addition, it is apparent that a request to appear before the Board was probably not made because the appellant did not know when the hearing was to take place. Further, it would be improper for the Board to assume that Godich "was satisfied to have the Staff Representative . . . to continue to represent him," as Godich had retained different counsel for his petition to the district court. Godich simply must receive adequate notice.

We hold that the plaintiff's statutory right to notice has been violated. We will therefore reverse the district court's determination that plaintiff waived his right to counsel at his first hearing and remand to the district court so that the case may be remanded to the Board. The Board shall conduct a second hearing on the issue of waiver of counsel and shall advise plaintiff and his counsel of the date and the time the hearing will be held.