Brohd Engineers & Tr v. Union Pacific ( 2008 )


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  •                               In the
    United States Court of Appeals
    For the Seventh Circuit
    ____________
    No. 06-2542
    BROTHERHOOD OF LOCOMOTIVE ENGINEERS
    AND TRAINMEN GENERAL COMMITTEE OF
    ADJUSTMENT, CENTRAL REGION,
    Plaintiff-Appellant,
    v.
    UNION PACIFIC RAILROAD COMPANY,
    Defendant-Appellee.
    ____________
    Appeal from the United States District Court
    for the Northern District of Illinois, Eastern Division.
    No. 05 C 2401—Virginia M. Kendall, Judge.
    ____________
    ARGUED FEBRUARY 7, 2007—DECIDED APRIL 9, 2008
    ____________
    Before FLAUM, ROVNER, and EVANS, Circuit Judges.
    ROVNER, Circuit Judge. Five aggrieved railroad em-
    ployees of the Union Pacific Railroad (Union Pacific or the
    Carrier) filed claims through their representatives on the
    Brotherhood of Locomotive Engineers and Trainmen (the
    Organization) in each case contesting a discharge or
    discipline imposed by the Carrier. Rather than resolving
    the dispute over the propriety of the discipline, the Na-
    tional Railroad Adjustment Board (NRAB or Board)
    2                                                No. 06-2542
    concluded that the Organization had failed to submit
    conclusive evidence that the parties had held a con-
    ference to attempt to resolve the dispute—a procedural
    prerequisite to arbitration—and thus the Board determined
    that it was required to dismiss the claim for lack of juris-
    diction. The district court agreed. Although we agree with
    the district court that it has always been clear that the
    parties must conference, and that they must submit
    evidence of that fact, it heretofore has not been clear
    when and how that evidence must be presented. We find
    that the Board denied the Organization due process by
    requiring evidence of conferencing to be presented in the
    on-property record, a requirement not clearly enunciated
    in the statutes, regulations, or the collective bargaining
    agreement of the parties. Consequently, we reverse.
    I.
    Grievance procedures for resolving disputes between
    railroads and their employees are regulated intricately
    under the Railway Labor Act (RLA or Act). Under the
    Act, railroad employees with grievances against their
    employers—the railroad—must first attempt to resolve
    those grievances through an internal process before
    turning to the courts. The procedure for dispute resolu-
    tion is set forth in the parties’ collective bargaining agree-
    ment and begins with investigations, hearings, and appeals
    that take place on the railroad property and are generally
    referred to as “on-property” proceedings. If one of the
    parties is dissatisfied with the result, the dispute is sub-
    mitted to a conference. 
    45 U.S.C. § 152
     Second. If the par-
    ties fail to resolve their differences in conference, an
    aggrieved party may initiate an arbitration proceeding
    before the NRAB. 
    45 U.S.C. § 153
     First (i).
    No. 06-2542                                               3
    In 2000 and 2001, Union Pacific discharged or disci-
    plined five locomotive engineers whose claims form the
    basis of this litigation. The Organization filed grievances
    and sought reinstatement, back pay, and removal of the
    discipline for the five engineers. The Organization then
    proceeded through the “on-property” process in the
    manner dictated by the collective bargaining agree-
    ment between the parties. Each aggrieved party had an on-
    property hearing before an investigating officer or super-
    intendent of the carrier. In each case the hearings were
    recorded and transcribed with exhibits attached. The
    Carrier declined each of the claims. The parties then met
    in a conference in a last-chance effort to settle the case.
    When those efforts failed, and the Organization did not
    prevail, it sent letters of intent to the NRAB to initiate
    arbitration proceedings. In its original submission, the
    Organization included the on-property record which
    contained the notices of discipline, the hearing tran-
    script, all of the exhibits, and all of the evidence used in
    the grievance procedure below relating to the merits of
    the underlying discharge or discipline. The Organization
    did not, however, include any written documentation
    that the parties had met in conference. The Carrier raised
    no objection to the Organization’s submission and, in
    due course, presented its own counter-submission on the
    merits of the dispute. It did not mention the Organiza-
    tion’s failure to include evidence that a conference had
    occurred.
    After the parties filed their submissions, they met on
    March 15, 2005, for a hearing before the NRAB. Each
    arbitration panel of the Board consists of an equal number
    of members chosen by the carrier and by the labor organi-
    zation. Where the panels are deadlocked, a neutral person
    4                                                No. 06-2542
    known as a referee sits with the panel to make an award.
    
    45 U.S.C. § 153
     First (l). As a practical matter, therefore,
    the outcome is usually determined by the referee. See
    United Transp. Union v. Gateway W. Ry., 
    284 F.3d 710
    , 711
    (7th Cir. 2002). Just prior to the start of the oral argument,
    the Carrier’s representative on the panel requested an
    executive session of the NRAB panel, out of the presence
    of the Organization’s representative. During that session,
    the Carrier’s representative informed the referee that the
    Organization’s submission to the Board did not contain
    any evidence of conferencing. Without such evidence,
    the railroad argued, the Board must draw the inference
    that the conferences had not occurred. The Carrier did not
    argue that conferencing had not occurred—indeed, it had—
    only that the Organization had failed to offer any evid-
    ence of it in the on-property record submitted to the Board.
    The Organization’s advocate offered to submit documen-
    tation that the conferences had occurred and the referee
    gave the Organization time to do just that. The Organiza-
    tion did eventually proffer proof that a conference had
    occurred, which included phone logs, informal notes,
    and other documents. The majority of the panel con-
    sisting of the neutral member and the Carrier’s repre-
    sentative, however, voted not to allow this later sub-
    mitted evidence, and voted to dismiss all five of the
    appeals for lack of jurisdiction.
    In the five nearly identical decisions, the Board con-
    cluded that without evidence in the on-property record
    that the conference had occurred, it had no jurisdiction
    to consider the Organization’s claims. (R. at 1, Ex. A,
    Award Nos., 26089, 26090, 26092, 26093, 26094, all at p.3)
    (App. at 16, 24, 37, 45, 53). The Board further con-
    cluded that it could not consider evidence not contained
    No. 06-2542                                                 5
    in the on-property record. 
    Id.
     (App. at 17, 25, 38, 46, 54).
    The Organization’s representative filed a dissent in each
    of the five awards.
    The Organization sought review in the district court of
    all five of these identically reasoned awards pursuant to
    
    45 U.S.C.A. § 153
     First (q). In appealing to the district
    court to dismiss the complaint for failure to state a claim,
    the Carrier argued as a preliminary matter, that the
    NRAB’s decisions were evidentiary rulings, which could
    not be set aside absent misconduct or bad faith by the
    arbitrator. It then sought to convince the district court
    that the conference is a mandatory precursor to arbitra-
    tion, and that without written evidence of the con-
    ference—evidence that could not be added to the record
    later—the Board had no jurisdiction to hear the claim. The
    Organization countered that neither federal law nor the
    CBA required conferencing and that even if conferencing
    were required, no rule dictates that conferencing must
    be proved by evidence in the on-property record. Conse-
    quently, the Organization argued, the Board failed to
    conform to its jurisdiction and violated due process.
    The district court concluded that conferencing is indeed
    required before parties can refer their disputes to the
    NRAB and that the NRAB did not violate due process by
    refusing to consider evidence of conferencing outside of
    the on-property record. Consequently, the district court
    dismissed the Organization’s suit pursuant to Fed. R. Civ.
    P. 12(b)(6), concluding that the Organization had failed
    to state a claim upon which relief could be granted. On
    appeal, the Organization has not challenged the district
    court’s holding that the RLA requires conferencing, but
    instead focuses on whether the NRAB denied due pro-
    cess and failed to act within the scope of its jurisdiction by
    requiring proof of conferencing in the on-property record.
    6                                               No. 06-2542
    II.
    Although presented through both a statutory and
    constitutional framework, the essence of the conflict boils
    down to a single question: is written documentation of
    the conference in the on-property record a necessary pre-
    requisite to arbitration before the NRAB? The district
    court answered this question affirmatively, and we
    review the district court’s dismissal de novo, looking to
    see whether relief is possible under any set of facts con-
    sistent with the allegations set forth in the complaint.
    Pokuta v. Trans World Airlines, 
    191 F.3d 834
    , 839 (7th Cir.
    1999). In keeping with the purpose of the RLA—that is, to
    resolve railway labor disputes in an efficient manor—the
    jurisdiction of the federal courts is limited to only the
    narrowest review of NRAB arbitrators’ decisions. Union
    Pac. R.R. v. Sheehan, 
    439 U.S. 89
    , 91 (1978); Pokuta, 
    191 F.3d at 839
    . Under the RLA, federal courts may review a
    Board’s decision only when (1) the Board has failed to
    comply with the requirements of the RLA; (2) the Board
    has failed to conform or confine itself to matters within
    the scope of its jurisdiction; and (3) the Board or one of
    its members has engaged in fraud or corruption. 
    45 U.S.C. § 153
     First (q); see also, Sheehan, 439 U.S. at 93; Pokuta,
    
    191 F.3d at 839
    . This circuit will also review claims of due
    process violations by the Board. See, e.g., Pokuta, 
    191 F.3d at 839
    , Bates v. Baltimore & Ohio R.R., 
    9 F.3d 29
    , 31 (7th
    Cir. 1993); Morin v. Consol. Rail Corp., 
    810 F.2d 720
    , 722
    (7th Cir. 1987).
    In this appeal, the labor Organization makes two claims,
    first, that the Board violated its due process rights and
    second, that it violated the RLA by failing to conform or
    confine itself to matters within the scope of its jurisdic-
    tion, as prohibited by 
    45 U.S.C. § 153
     First (q). The Carrier
    No. 06-2542                                                    7
    urges this court to consider the statutory claim before
    the constitutional one. We agree that it is a “fundamental
    rule of judicial restraint” that we ought not pass on ques-
    tions of constitutionality “unless such adjudication is
    unavoidable.” Zobrest v. Catalina Foothills Sch. Dist., 
    509 U.S. 1
    , 14 (1993) (Blackmun, dissenting). In this case, however,
    once we answer the key question at issue in this case,
    adjudication of the due process claim is unavoidable. That
    question is whether the NRAB created a new requirement
    when it held that arbitration could not proceed because the
    Organization had failed to present evidence of
    conferencing in the on-property record. If it did so, it ran
    afoul of the due process clause.
    Answering this key question will also resolve the Car-
    rier’s threshold argument that this case is governed by the
    review standard of United Paperworkers Int’l Union v.
    Misco, Inc., 
    484 U.S. 29
     (1987). The Railroad Carrier charac-
    terizes the Board’s award as a decision to admit or ex-
    clude evidence. Such decisions, absent bad faith or error,
    are left entirely to the discretion of the arbitrator. 
    Id. at 40
    .
    Again, however, the application of this standard depends
    on the characterization of the Board’s actions. If indeed
    the Board merely precluded the Organization from sub-
    mitting evidence under its interpretation of an already
    existing rule, then we cannot overturn that finding
    unless we can show that the arbitrator acted in bad faith
    or that the error was so gross as to amount to affirmative
    misconduct. 
    Id. at 40
    . If, however, the Board created a new
    rule which precluded the Organization from submitting
    evidence, then we are no longer evaluating a decision
    merely to admit or deny evidence. Once again, it be-
    comes clear that resolution of all of the issues in this case
    depends on whether the Board created a new rule—a
    question to which we will turn shortly.
    8                                                 No. 06-2542
    The Carrier’s initial approach in the due process arena
    is to cast doubt on the law of this circuit that allows judi-
    cial review of Board orders where a party asserts a due
    process violation. This argument is based on scholarly
    theories that the only due process protections required
    are those already provided in the RLA itself. See, e.g., Buck
    S. Beltzer & Stephen A. Wichern, Judicial Review Under
    the Railway Labor Act: Are Due Process Claims Permissible?
    
    33 Transp. L.J. 197
    , 220-224 (2005); Christopher L. Sagers,
    Note, Due Process Review Under the Railway Labor Act,
    
    94 Mich. L. Rev. 466
    , 469 (1995). The Supreme Court,
    however, has stated that unless it can be shown by clear
    and convincing evidence that Congress intended to fore-
    close judicial review, we must presume that courts
    may review constitutional questions. Califano v. Sanders, 
    430 U.S. 99
    , 109 (1977). Nothing in section 153 First (q) of the
    RLA manifests clear and convincing evidence that Con-
    gress intended to foreclose judicial review of constitutional
    claims under the Act. See Edelman v. W. Airlines, 
    892 F.2d 839
    , 847 (9th Cir. 1989). This circuit has pointed out that the
    decisions of the NRAB, “are acts of government, and must
    not deprive anyone of life, liberty, or property without due
    process of law.” Elmore v. Chicago & Ill. Midland Ry., 
    782 F.2d 94
    , 96 (7th Cir. 1986). Consistent with that position, we
    have continuously held that we will review due process
    claims arising from NRAB arbitration. See Pokuta, 
    191 F.3d at 839
    ; Bates, 
    9 F.3d at 31
    ; Morin, 
    810 F.2d at 722
    ; Steffens v.
    Bhd. of Ry. Airline and S.S. Clerks, 
    797 F.2d 442
    , 448 & n.5
    (7th Cir. 1986). We have continually and consistently
    maintained this position despite a 1979 Supreme Court
    decision that created confusion in some circuits as to the
    validity of due process review of NRAB decisions. See
    Sheehan, 439 U.S. at 93-94. Despite the confusion, several
    circuit courts, including this one, have concluded that the
    No. 06-2542                                                  9
    Sheehan decision does not prohibit due process review of
    NRAB decisions. See Steffans, 
    797 F.2d at
    448 & 449 n.5. See
    also Shafii v. PLC British Airways, 
    22 F.3d 59
    , 63-64 (2d Cir.
    1994); Hayes v. W. Weighing & Inspection Bureau, 
    838 F.2d 1434
    , 1436 (5th Cir. 1988); Armstrong Lodge No. 762 v. Union
    Pac. R.R., 
    783 F.2d 131
    , 135 (8th Cir. 1986); Radin v. United
    States, 
    699 F.2d 681
    , 684 (4th Cir. 1983). We decline to
    depart from our prior holdings on this issue.
    Due process requires “the opportunity to be heard at a
    meaningful time and in a meaningful manner.” Mathews
    v. Eldridge, 
    424 U.S. 319
    , 333 (1976). That means, of course,
    that a tribunal may not alter, without warning, the rules
    for access to it. It is true that the requirements of due
    process are “relaxed when the tribunal is an arbitral
    tribunal rather than a court.” United Transp. Union, 
    284 F.3d at 712
    . “In the arbitration context, due process is
    satisfied so long as the arbitrator provided a fundamentally
    fair hearing, one that meets the minimal requirements of
    fairness—adequate notice, a hearing on the evidence and
    an impartial decision by the arbitrator.” Int’l Bhd. Elec.
    Workers v. CSX Transp. Inc., 
    446 F.3d 714
    , 720 (7th Cir. 2006).
    It is these minimal requirements, however, that
    the Organization claims that the NRAB failed to provide
    by creating and imposing a new rule, unknown to the
    Organization, that denied it access to a hearing on the
    substance of the dispute.
    This court has considered the predicament created by
    newly implemented NRAB rules once before in Chicago
    Rock Island and Pac. R.R. v. Wells, 
    498 F.2d 913
     (7th Cir.
    1974). In Wells, the railroad drafted a written request for
    an automatic extension of time to file its reply to Wells’
    claim of wrongful discharge. The letter bore a January 29
    postage meter date, but a January 30 postmark. Wells, 498
    10                                              No. 06-2542
    F.2d at 917. The Board refused the railroad’s request,
    declaring that the January postmark was one day too
    late. Id. At the time of the denial, the Board had no rule
    adopting a United States Postal Service postmark as the
    criterion for determining timeliness. Id. We held that the
    adoption of a new rule or policy without notice vio-
    lated due process. Id. at 918. The court noted that the
    procedural defect of adopting a new rule that the United
    States postmark determined the timeliness of the re-
    quest for an extension of time was one of “constitutional
    dimension.” Id.
    It is true that the railroad in Wells was denied an oppor-
    tunity to make any presentation whatsoever to the Board,
    and in this case the Organization was permitted to argue
    its position regarding whether the absence of evidence of
    conferencing mandated dismissal. In this case, however,
    imposition of a new procedural rule without adequate
    notice to the parties denied those parties first, and most
    importantly, the opportunity to comply with the rule,
    and ultimately, a fair opportunity to be heard. Had the
    Board permitted the Organization to submit evidence of the
    conference for its consideration once the issue had been
    raised, the Organization then could have proceeded to
    argue that Engineers Glueck, South, Whatley, Fosha and
    Pope were not deserving of the discharge or discipline
    they received. Instead, the Board allowed the Carrier to
    raise the conferencing issue at a late date, but refused to
    consider any evidence that the procedural pre-requisite
    had been met. In this way, the facts and conclusion of
    Wells bear most heavily on this case.
    The Carrier downplays Wells as a pre-Sheehan case, but
    nothing in Sheehan alters our due process analysis. Indeed,
    as we noted above, this court has issued many decisions
    No. 06-2542                                               11
    since Sheehan noting our ability to review claim of due
    process violations in NRAB proceedings. See, e.g., Pokuta,
    
    191 F.3d at 839
    ; Bates, 
    9 F.3d at 31
    ; Morin, 
    810 F.2d at 722
    ;
    Steffens, 
    797 F.2d at
    448 & n.5. We can conclude from Wells
    that if the Board created a new rule previously unknown
    and unapplied, this would constitute a violation of due
    process that prevented the substance of the Organization’s
    claim from being heard. This is not only an obvious
    conclusion from Wells and from the mandates of due
    process, but from the fundamental rule of social interac-
    tion we all learned on the kindergarten playground. It is
    unfair to alter the rules of the game mid-play. We can now
    turn to the question of whether, in fact, the Board created
    a new rule.
    The crux of the Organization’s principal argument in
    this case is that the district court combined two discreet
    rules to announce a new rule not articulated in a statute,
    rule, or the collective bargaining agreement between the
    parties. The first of these rules is that, before initiating
    arbitration, the parties must confer after the carrier’s
    highest designated officer has rejected the labor union’s
    appeal. The second of these rules is that parties to arbitra-
    tion must present all of their evidence to the Board in the
    on-property record and that new evidence cannot be added
    on appeal to the Board if it was not presented to the
    railroad during its on-property review.
    The Carrier leads its argument with proof of the first
    rule—that the RLA and the governing regulations require
    conferencing. Indeed § 2 Second of the RLA states that
    “[a]ll disputes between a carrier or carriers and its or
    their employees shall be considered, and, if possible,
    decided, with all expedition, in conference between
    representatives designated and authorized so to confer,
    12                                              No. 06-2542
    respectively, by the carrier or carriers and by the em-
    ployees thereof interested in the dispute.” 
    45 U.S.C. § 152
    Second. This same language appears in Circular One—the
    common name given to the series of rules and regulations
    that the NRAB adopted in 1934 to govern its internal
    procedures. 
    29 C.F.R. § 301.1
    (b).
    Although the Organization argued below that
    conferencing was not, in fact, required, it is no longer
    asserting that position on appeal. Consequently, we can
    assume that parties may not proceed to arbitration until
    they have held a conference and made a final attempt
    at resolving their differences. We need not, however
    belabor this point much. The fact of a conference vel non
    is not in dispute. The Organization adamantly asserts,
    and Union Pacific does not deny, that the parties met in
    conference. We can now focus our review on the more
    narrow question of when and how a party must prove to
    the NRAB that conferencing has occurred.
    Union Pacific’s position is that evidence of conferencing
    must be contained in the on-property record; that is,
    it must be in writing and it cannot be presented once the
    on-property record has been closed and presented to the
    Board. The Organization counters that these requirements
    have been made from whole cloth and are not contained
    in the RLA, in Circular One, or in the collective bar-
    gaining agreement between the parties. The Organization
    argues that if the Carrier may raise, for the first time, the
    question of jurisdiction after the parties have submitted
    their materials to the Board and the record is closed, then,
    in fairness, the Organization must be allowed the oppor-
    tunity to present evidence in response. Or, the Organiza-
    tion argues, the Carrier must not be permitted to raise
    the question after the on-property record has closed.
    No. 06-2542                                                13
    As support for its position, the railroad Carrier cites ten
    arbitration awards in which the Board dismissed cases
    where there was no evidence of conferencing in the on-
    property record. See Brief of Defendant-Appellee Union
    Pacific Railroad at pp. 28-29. In the bulk of those awards,
    however, it was either uncontroverted or clear from the
    record that the parties had not held a conference on the
    property prior to submitting the dispute to arbitration. See
    Third Division Award, No. 3203 (R. at 21, Ex. B) (App. at
    133) (“It is unrefuted that no conference was held on the
    property.”);1 Third Division Award, No. 30114 (R. at 21,
    Ex. B) (App. at 117) (“it is abundantly clear that at no time
    during the on-property handling of the case was a con-
    ference held to attempt to resolve this dispute”); Third
    Division Award, No. 4931 (R. at 21, Ex. B) (App. at 128)
    (“The record is clear. A conference at the highest level
    was not held.”); Third Division Award, No. 30260 (R. at 21,
    Ex. B) (App. at 115) (“It is clear from the record in this
    case that the instant Claim was not conferenced by the
    Organization on the property.”); Third Division Award,
    No. 12475 (R. at 21, Ex. B) (App. at 103-04) (noting that
    the “Carrier submits that no conference was held by the
    1
    At oral argument the Carrier was asked whether there
    were any awards among those cited in its brief in which it was
    undisputed that a conference had not occurred. The Carrier
    asserted that the Boards’ awards do not reveal one way or the
    other. Oral argument, February 7, 2007, at 11:16-12:02. The
    Boards awards do reveal that in at least one case it was
    unrefuted that conferencing had not taken place. In other
    cases, the Board announced that it was clear that conferences
    had not occurred. This is a minor point, however, for as
    we discuss further, infra, prior Board awards may be instruc-
    tive, but hold no precedential value.
    14                                              No. 06-2542
    parties on the property prior to this appeal” and then
    finding that “no conference was held prior to its sub-
    mission to the Board”); Third Division Award, No. 33916
    (R. at 21, Ex. B) (App. at 106) (“no conference was ever
    held on the property”); Third Division Award, No. 27482
    (R. at 21, Ex. B) (App. at 126) (“From the record, it appears
    that Claimant did not further pursue either Claim on the
    property and did not engage in a conference as required.”).
    In three of the awards, the Board merely notes that
    there is no evidence in the record that conferencing oc-
    curred at all and thus we cannot definitively deter-
    mine whether the parties failed to meet in conference
    or whether they met but neglected to submit evidence of
    that conference. See Third Division Award, No. 18679 (R. at
    21, Ex. B) (App. at 97) (“In a review of this record we fail
    to find any evidence that [a] conference was ever held
    on the property.”); Third Division Award, No. 30821 (R. at
    21, Ex. B) (App. at 112) (“Nowhere does the record in-
    dicate that a conference was ever held or requested on the
    property.”); Third Division Award, No. 22428 (R. at 21,
    Ex. B) (App. at 96) (“The record before the Division is
    devoid of any evidence that [a] conference was held.”).
    Consequently, these prior Board awards do not indicate
    whether the Board dismissed the cases because
    conferencing did not occur (a fact which would support
    the Organization’s position) or because the parties did not
    put written evidence of conferencing in the on-property
    record (a fact which would support the Carrier’s position).
    The Organization argues that “there is not a single award
    that says conferences must be proved only by documents
    that were previously exchanged by the parties and then
    attached as exhibits to the ‘on-property record.’ ” (Reply
    Brief at 4). It is true that the Railroad has not cited such
    an award. The district court too admitted that, “no Board
    No. 06-2542                                                 15
    opinion expressly states that the Board will not con-
    sider evidence of conferencing outside of the record.”
    (R. at 40, p.13). The district court, however, seemed con-
    vinced that “Board precedent on conferencing cites the
    lack of evidence in the record as the basis for its decision.”
    
    Id.
     (emphasis in original). We do not read the language
    of the awards in quite the same way. True, the Board
    dismissed each of these awards for lack of jurisdiction.2 It
    is unclear, however, whether it based its decision on the
    lack of evidence in the on-property record, as the district
    court concluded, or rather because it was clear that
    conferencing, the procedural prerequisite to arbitration,
    had not occurred. In short, the awards make clear that
    the parties must conference. But these prior awards are
    no more illuminating than the RLA in articulating how
    a party must prove that a conference occurred.
    Moreover, although study of prior arbitration awards is
    useful, the awards are not conclusive. Arbitrators can
    and do consider the language of other awards in deter-
    mining the outcome of matters before them, but they are
    not bound by the outcome of prior decisions in the same
    way that judges are bound by the doctrine of stare decisis
    in courts. See Ray J. Schoonhoven, Fairweather’s Practice
    and Procedure in Labor Arbitration, 521-525 (4th Ed. 1999);
    Martin H. Malin & Robert F. Ladenson, Privatizing Justice:
    a Jurisprudential Perspective on Labor and Employment Arbitra-
    tion from the Steelworkers Trilogy to Gilmer, 
    44 Hastings L.J. 1187
    , 1197 (1993); Timothy J. Heinsz, Grieve it Again: of Stare
    2
    The Board did not always use the “lack of jurisdiction”
    language in the awards cited supra. Sometimes it merely stated
    that it had no authority to hear the case or that it had to be
    dismissed because of a procedural flaw.
    16                                                No. 06-2542
    Decisis, Res Judicata and Collateral Estoppel in Labor Arbitra-
    tion, 
    38 B.C. L. Rev. 275
    , 277 (1997); Carlton Snow, An
    Arbitrator’s Use of Precedent, 
    94 Dick. L. Rev. 665
    , 672-74
    (1990). There are myriad reasons for the non-precedential
    nature of prior awards. The Organization touched on
    some of them in its reply brief by pointing out that awards
    are not codified, not wholly accessible to non-parties,
    and contain sketchy accounts of the record. Moreover,
    issues that confront labor arbitrators are often quite fact
    specific and involve evaluating not only the action leading
    to the discipline or discharge but also the fairness of the
    rules established and applied by the employer and the
    relationships between the parties. See Heinsz, 38 B.C. L.
    Rev. at 294-95. In any event, the awards only tell us
    what we already knew—first, that parties must confer-
    ence, and second, that they must demonstrate to the
    Board that they have conferenced. What they do not tell
    us is how or when a labor organization must prove that a
    conference occurred. Could it not, for example, arrive at the
    NRAB hearing with an audio recording of the conference?
    Our exploration of prior awards has diverted us from
    a more relevant path—the statutes and regulations of the
    RLA. The Carrier asserts that Section 2 Second is the
    key statutory provision governing conferencing. See 
    45 U.S.C. § 152
     Second. As we noted, however, this section
    instructs that the parties must conference but offers no
    guidance as to how proof of conferencing must be pre-
    sented to the Board. According to 
    29 C.F.R. § 301.5
    (d),
    employees must submit to the Board a document
    which “clearly and briefly set[s] forth all relevant, argu-
    mentative facts, including all documentary evidence
    submitted in exhibit form, quoting the agreement or rules
    involved, if any; and all data submitted in support of
    No. 06-2542                                              17
    employees’ position must affirmatively show the same
    to have been presented to the carrier and made a part of
    the particular question in dispute.” In other words, an
    employee must submit to the Board everything that the
    employee used to attempt to convince the railroad not to
    discipline or discharge her. Of course the employee never
    used the fact of conferencing “in the support of [her]
    position,” and it was never part of “the particular ques-
    tion in dispute,” and therefore it would not appear to be
    required by 
    29 C.F.R. § 301.5
    . The Organization advises that
    there may not be documentary evidence of conferencing
    at all. In fact, the collective bargaining agreement between
    the parties in this case dictates that the parties may hold
    pre-hearing conferences by telephone. Consequently,
    evidence of the conference might appear as a note in a
    calendar scheduling a face to face conference. It may be
    in the form of a telephone bill from the carrier’s con-
    ference officer to the union. Neither of these forms of
    evidence were “presented to the carrier” or were used as
    evidence “in support of” the employees’ position. Section
    301.5 of the regulations, therefore, likewise fails to pro-
    vide any rule that evidence of the conference must be
    presented in the on-property record.
    Thus far our examination of prior awards, 
    45 U.S.C. § 153
    First (q), and 
    29 C.F.R. § 301.5
     has failed to uncover a
    rule that evidence of the conference must be contained
    in the on-property record. Is there a rule that would bar
    a labor organization from doing just what the Organiza-
    tion did here—presenting evidence of the conference
    after the on-property record has closed and been sub-
    mitted to the Board? The Carrier argues there is.
    The Carrier reasons, and the district court agreed,
    that the Organization is barred from submitting this later
    18                                             No. 06-2542
    filed evidence of conferencing by the NRAB’s precedential
    rule that it cannot consider “new evidence” not contained
    in the on-property record. The NRAB functions in an
    appellate-like manner and so the rule against accepting
    new evidence follows logically. First, it fulfills the goal
    of the RLA to encourage prompt resolution between the
    parties without resort to costly, repetitive, and antago-
    nistic processes. In order to give the employer a full and
    complete stab at resolving the issue on its own, the labor
    union must present all of its evidence on the merits to
    the employer’s decision maker (usually an investigating
    officer or superintendent of the carrier) before turning
    to arbitration. Second, the NRAB is reviewing the actions
    of the carrier. In other words, the Board must assess the
    following: based on what the carrier knew and saw,
    was the carrier’s discipline fair? For this reason the Board
    cannot evaluate new evidence. The same reasoning does
    not hold true for evidence of conferencing, however. The
    conference is the last ditch effort to resolve the dispute
    on the property without the help of outsiders, and it occurs
    after the on-property hearing before the carrier’s Super-
    intendent or investigating officer. The fact of conferencing
    was not one of the factors that the carrier’s disciplinarian
    considered in making its decision.
    In fact, of all the arbitration awards that Union Pacific
    cites for the proposition that the Board cannot review
    new evidence, in each case the new evidence that the
    party sought to admit was evidence relating to the merits
    of the dispute. For example, the Board presents Award
    No. 25994 as support for the proposition that the Board
    No. 06-2542                                              19
    cannot consider new evidence.3 In that case, the Organ-
    ization claimed that the Carrier had not reviewed a tran-
    script of the investigation prior to imposing discipline and
    therefore had not provided the employee with a fair and
    impartial investigation as required by the collective
    bargaining agreement. (R. at 21, Ex. B) (App. at 63). The
    Organization further contended that the Carrier omitted
    the date on the transcript to obfuscate the fact that the
    Carrier’s decision maker had not considered the record
    of investigation. The Board concluded that, despite the
    fact that a date on the transcript would have provided
    “a straightforward means of ascertaining whether the
    Superintendent had the transcript before rendering his
    decision,” the Carrier did not supply that information to
    the Board, and thus it was entitled to infer that the with-
    held evidence would not have been favorable to the
    Carrier. 
    Id. at 65
    .
    The Carrier describes this award as enforcement of a
    “hyper-technical” rule about dating a transcript. The date
    on the investigative transcript, however, was more than a
    simple formality or rule; the date of the transcript turned
    out to be the key to the substantive question in the case—
    that is, did the Carrier review the transcript before im-
    posing discipline? If the Carrier had submitted new
    evidence regarding the date to the Board, evidence that
    was not presented below, the Organization would have
    been at a distinct disadvantage. It could not have gone
    back to do its own investigation and present evidence to
    try to refute the proposed date of the investigation tran-
    3
    The parties in that arbitration were the same parties in-
    volved in this litigation.
    20                                             No. 06-2542
    script. As the dissenting arbitrator in the NRAB awards
    at issue in this case pointed out, “new evidence is disal-
    lowed by the Board when it represents an attempt to
    blind side one party or another.” (R. at 1, Ex. A) (App. at
    20). In this case, in contrast, there was no question that
    the parties had met in conference and therefore the pre-
    sentation of new evidence in no way prejudiced the
    Carrier. To the contrary, any blindsiding came from the
    Carrier’s actions. When the Organization filed its Notice
    of Intent to proceed to arbitration, it forwarded a copy
    of the on-property record to the NRAB, and, of course,
    to the Carrier. It was clear from the face of the documents
    that the on-property record lacked any written evidence
    that a conference had occurred. The Carrier, however,
    did not object to the lack of evidence of conferencing.
    Instead, it responded substantively to the merits of the
    claims and the parties proceeded to arbitration. Only on
    the eve of arbitration—when the Carrier claims the record
    was closed to all new submissions—did it raise its objection
    to the lack of evidence.
    The regulations require each party to submit all sup-
    porting evidence in its original submission to the Board.
    
    29 C.F.R. § 301.5
    (d), (e). If these regulations require the
    Organization to submit “everything” in the original
    submission to the Board, then it must also be true that the
    Carrier was required to present “everything” in its orig-
    inal submission to the Board—including its claim that
    there was no evidence of conferencing. See also 
    29 C.F.R. § 301.7
    (b) (“the parties are, however, charged with the
    duty and responsibility of including in their original
    written submission all known relevant, argumentative
    facts and documentary evidence.”). Fundamental fairness
    requires either that the Carrier be required to raise its
    objection when the labor union can still respond and
    No. 06-2542                                                21
    present evidence of conferencing or, if it bars the labor
    union from presenting new evidence, then it must also
    bar the Carrier from raising the argument after the orig-
    inal submission has been filed.
    Before we conclude, it is worth emphasizing that our
    review of NRAB awards remains exceptionally narrow.
    This circuit respects the finality of NRAB awards and
    the independence of carriers and employees to create
    contracts governing resolution of their disputes. As we
    have said before, the question before a federal court “is not
    whether the arbitrator or arbitrators erred in interpreting
    the contract; it is not whether they clearly erred in inter-
    preting the contract; it is not whether they grossly erred
    in interpreting the contract; it is whether they inter-
    preted the contract.” Hill v. Norfolk & W. Ry., 
    814 F.2d 1192
    ,
    1195 (7th Cir. 1987). An arbitration award made by the
    Board may be overturned “only if the reviewing court is
    convinced that [the arbitrator] was not trying to interpret
    the collective bargaining contract, but that instead he
    resolved the parties’ disputes according to his private
    notions of justice.” Bhd. of Locomotive Eng’ring v. Atchison,
    Topeka and Sante Fe R.R., 
    768 F.2d 914
    , 922 (7th Cir.
    1985). When a Board creates a new requirement on its own,
    it is not interpreting a CBA or following the dictates of
    the RLA or its regulations. Our prior precedent in Wells
    instructs that such changes in the rules violate the due
    process rights of the parties. This case presented a
    unique situation which we doubt will come before a
    court again: that is where the parties actually did meet in
    conference, but the labor organization failed to present
    such evidence to the Board in its initial submission,
    where the carrier likewise failed to object to the lack of
    evidence in its initial submission to the Board, and
    22                                            No. 06-2542
    where the labor organization could and did present
    evidence of conferencing prior to a hearing on the under-
    lying dispute. Because no statute, regulation, or CBA
    required the evidence to be presented in the on-property
    record, because the Carrier could not have been prejudiced
    by the tardy submission of evidence, and because the
    Organization was prejudiced by the late objection, we
    find that the Board’s decision to dismiss violated the due
    process rights of the Organization. The district court
    issued a thoughtful decision, but for the reasons articu-
    lated above, it must be REVERSED.
    USCA-02-C-0072—4-9-08