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 employees 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 National 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 conference 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 jurisdiction. 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 resolution is set forth in the parties’ collective bargaining agreement 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 submitted to a conference. 45 U.S.C. § 152 Second. If the parties 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 disciplined 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 agreement between the parties. Each aggrieved party had an onproperty hearing before an investigating officer or superintendent 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 transcript, 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 Organization’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 organization. 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 evidence of it in the on-property record submitted to the Board.

The Organization’s advocate offered to submit documentation that the conferences had occurred and the referee

gave the Organization time to do just that. The Organization did eventually proffer proof that a conference had

occurred, which included phone logs, informal notes,

and other documents. The majority of the panel consisting of the neutral member and the Carrier’s representative, however, voted not to allow this later submitted evidence, and voted to dismiss all five of the

appeals for lack of jurisdiction.

In the five nearly identical decisions, the Board concluded 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 concluded 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 arbitration, and that without written evidence of the conference—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. Consequently, 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 process 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 prerequisite 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 consistent 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 jurisdiction, 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 questions 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 Carrier’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 characterizes the Board’s award as a decision to admit or exclude 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 submitting 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 becomes 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 judicial 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 foreclose 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 Congress 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 violated 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 request for an extension of time was one of “constitutional

dimension.” Id.

It is true that the railroad in Wells was denied an opportunity 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 interaction 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 arbitration 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 employees 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 bargaining 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 opportunity to present evidence in response. Or, the Organization argues, the Carrier must not be permitted to raise

the question after the on-property record has closed.
No. 06-2542 13

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 instructive, but hold no precedential value.

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 onproperty 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 conference 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
14 No. 06-2542

parties on the property prior to this appeal” and then

finding that “no conference was held prior to its submission 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 occurred at all and thus we cannot definitively determine 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 indicate 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

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.

opinion expressly states that the Board will not consider evidence of conferencing outside of the record.”

(R. at 40, p.13). The district court, however, seemed convinced 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 determining 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 Arbitration from the Steelworkers Trilogy to Gilmer, 44 Hastings L.J.

1187, 1197 (1993); Timothy J. Heinsz, Grieve it Again: of Stare
16 No. 06-2542

Decisis, Res Judicata and Collateral Estoppel in Labor Arbitration, 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 conference, 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 presented 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, argumentative 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 question 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 conference 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 provide 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 Organization did here—presenting evidence of the conference

after the on-property record has closed and been submitted 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 antagonistic 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 Superintendent 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

3 The parties in that arbitration were the same parties involved in this litigation. 

cannot consider new evidence.3 In that case, the Organization claimed that the Carrier had not reviewed a transcript 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 withheld 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 imposing 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-
20 No. 06-2542

script. As the dissenting arbitrator in the NRAB awards

at issue in this case pointed out, “new evidence is disallowed 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 presentation 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 supporting 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 original 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 original 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 interpreting the contract; it is not whether they grossly erred

in interpreting the contract; it is whether they interpreted 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 underlying 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 articulated above, it must be REVERSED.

USCA-02-C-0072—4-9-08