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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued December 12, 2003 Decided February 3, 2004

No. 02-1340

UNION PACIFIC RAILROAD COMPANY F/K/A

SOUTHERN PACIFIC TRANSPORTATION COMPANY,

PETITIONER

v.

SURFACE TRANSPORTATION BOARD AND

UNITED STATES OF AMERICA,

RESPONDENTS

SOUTHERN PACIFIC EMPOWERED EMPLOYEES COMMITTEE,

INTERVENOR

On Petition for Review of an Order of the

Surface Transportation Board

Clifford A. Godiner argued the cause for petitioner. With

him on the briefs was Rodney A. Harrison.

 Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.
2

Ronald M. Johnson was on the brief for amicus curiae

National Railway Labor Conference in support of petitioner.

Marilyn R. Levitt, Attorney, Surface Transportation

Board, argued the cause for respondents. With her on the

brief were Robert H. Pate III, Assistant Attorney General,

U.S. Department of Justice, John J. Powers and Robert J.

Wiggers, Attorneys, Ellen D. Hanson, General Counsel, Surface Transportation Board, and Craig M. Keats, Deputy

General Counsel.

Before: HENDERSON, ROGERS, Circuit Judges, and WILLIAMS,

Senior Circuit Judge.

Opinion for the court filed by Senior Circuit Judge

WILLIAMS.

Separate opinion filed by Circuit Judge HENDERSON

concurring in the judgment.

WILLIAMS, Senior Circuit Judge: In an arbitration over

benefits for workers adversely affected by a rail merger, the

arbitrators decided the core liability issues against the carrier. The Surface Transportation Board declined to set aside

or modify the award. The carrier appeals (now in the form of

Union Pacific as successor by merger to the original acquiring

firm). Applying the highly deferential standard of review

that the Board claims is applicable, we find the Board’s

decision arbitrary and capricious and reverse.

* * *

The statutes governing the type of rail merger in question

require the Board to condition any approval on the merged

carrier’s agreement to provide labor protection benefits. 49

U.S.C. § 11326(a). In granting its 1988 approval for the

merger of the Denver & Rio Grande and the Southern

Pacific, the Board imposed its standard requirements, known

as the New York Dock conditions. See 49 U.S.C. § 11326(a);

New York Dock Ry.—Control—Brooklyn E. Dist. Terminal,

360 I.C.C. 60, aff’d sub nom. New York Dock Ry. v. United

States, 609 F.2d 83 (2d Cir. 1979).
3

In 1989 the merged carrier consolidated various activities.

Among these were the prior railroads’ Denver and San

Francisco computer systems, which the carrier joined in a

‘‘Management and Information Services’’ (‘‘MIS’’) division at

Southern Pacific’s computer headquarters in San Francisco.

And in 1992 the carrier gave notice of further consolidations

between operations of Southern Pacific and the former Denver & Rio Grande; as a result, it and the Transportation

Communications Union entered into a 1992 Implementing

Agreement governing protection for certain groups of potentially affected employees.

In 1993 a task force headed by Thomas Matthews, the

carrier’s Senior Vice President and Chief Administrative Officer, recommended that the carrier outsource the functions of

its merged MIS department. It proceeded to do so, engaging

a completely separate firm, Integrated Systems Solutions

Corporation (‘‘ISSC’’), to perform the department’s functions.

Many of the MIS employees moved to ISSC. A dispute arose

between the carrier and some noncontract, nonunion MIS

employees over whether this outsourcing was subject to the

New York Dock conditions imposed in 1988. In December

1993 four such employees, together with the Southern Pacific

Empowered Employees Committee (‘‘SPEEC,’’ pronounced

‘‘speak’’), a self-described ‘‘voluntary organization’’ purporting

to represent such employees, invoked arbitration under Article IV of the New York Dock conditions.

The parties agreed to bifurcate the arbitration, initially

addressing only those issues applicable to all claimants. After a lengthy and unexplained delay, the panel issued a

decision on March 20, 2000 (the ‘‘2000 Award’’), finding that

the MIS outsourcing was causally related to the 1988 merger

in a manner bringing it within the reach of New York Dock’s

provisions, and that the named complainants and SPEECrepresented individuals were ‘‘employees’’ rather than management for purposes of New York Dock eligibility. See

generally Newbourne v. Grand Trunk W. R.R. Co., 758 F.2d

193, 195 (6th Cir. 1985). The carrier appealed to the Board;

while that appeal was pending, the panel issued a second

decision on February 10, 2001, rejecting the carrier’s claim
4

that a key witness’s recantation required it to vacate its 2000

Award.

On September 17, 2002 the Board issued the decision now

at issue (‘‘Board Decision’’). It applied its highly deferential

‘‘Lace Curtain standard’’—established in review of an arbitration over a ‘‘lace curtain allowance,’’ which is awarded for

expenses incurred ‘‘preparing a newly-purchased home for

occupancy.’’ Chicago & N. W. Transp. Co.—Abandonment

(‘‘Lace Curtain’’), 3 I.C.C.2d 729, 730 n.2 (1987), aff’d sub

nom. International Bhd. of Elec. Workers v. I.C.C., 862 F.2d

330 (D.C. Cir. 1988). As the Board said:

Under the Lace Curtain standard, we limit our

review of arbitrators’ decisions to ‘‘recurring or otherwise significant issues of general importance regarding the interpretation of our labor protective

conditions.’’ TTT We do not review issues of causation, the calculation of benefits, or the resolution of

other factual questions in the absence of egregious

error.

Board Decision at 6. See also Lace Curtain, 3 I.C.C.2d at

735 (citing Loveless v. Eastern Air Lines, Inc., 681 F.2d 1272,

1275–76 (11th Cir. 1982)).

Finding that the carrier had ‘‘failed to make the requisite

showing under our Lace Curtain standards,’’ the Board ‘‘denied’’ the carrier’s request that it ‘‘review’’ the award. Board

Decision at 10. Although the wording may suggest that

‘‘review’’ is purely discretionary, the Board’s 10–page, singlespaced opinion in reality expresses a conclusion that the

arbitrator’s decision contained no error cognizable under Lace

Curtain.

* * *

Jurisdiction

The Board argues that we lack jurisdiction to hear Union

Pacific’s appeal because its Decision was not final.
5

The Hobbs Act gives the courts of appeals exclusive jurisdiction to review the Board’s ‘‘rules, regulations, or final

orders.’’ 28 U.S.C. § 2342(5). For an order to be final, two

conditions must be satisfied: the order must not be ‘‘tentative’’ or ‘‘interlocutory’’ in nature, and it must be an action in

which ‘‘rights or obligations have been determined’’ or from

which ‘‘legal consequences will flow.’’ Bennett v. Spear, 520

U.S. 154, 177–78 (1997) (citations omitted). These factors are

interpreted pragmatically, Abbott Labs. v. Gardner, 387 U.S.

136, 149–50 (1967), to assure that courts neither ‘‘improperly

intrude[ ] into the agency’s decisionmaking process’’ nor

‘‘squander[ ] judicial resources’’ through piecemeal review.

Ciba-Geigy Corp. v. United States EPA, 801 F.2d 430, 436

(D.C. Cir. 1986).

Here, there is little practical concern pointing against

review. There is no suggestion that the Board’s decision is

tentative or interlocutory; rather, it completes the liability

phase of a proceeding that the parties agreed to bifurcate.

See Hart Surgical, Inc. v. UltraCision, Inc., 244 F.3d 231,

235 (1st Cir. 2001) (‘‘[T]he definiteness with which the parties

have expressed an intent to bifurcate is an important consideration.’’); Trade & Transp., Inc. v. National Petroleum

Charterers, Inc., 931 F.2d 191, 195 (2d Cir. 1991) (‘‘[I]f the

parties have asked the arbitrators to make a final partial

award as to a particular issue and the arbitrators have done

so, the arbitrators have no further authority, absent agreement by the parties, to redetermine that issue.’’); see generally Role Models Am., Inc. v. White, 317 F.3d 327, 331 (D.C.

Cir. 2003) (‘‘To be final, an action need not be ‘the last

administrative [action] contemplated by the statutory

scheme.’ ’’ (citation omitted)). And the Board itself decided

to review the panel’s award despite SPEEC’s argument that

the award was not a ‘‘final arbitration decision’’ for purposes

of 49 C.F.R. § 1115.8. See Public Utilities Comm. of Calif.

v. FERC, 894 F.2d 1372, 1377 (D.C. Cir. 1990) (considering

position taken by agency under review when deciding whether its order is final). Indeed, a possible benefit for the Board

is that our resolution on the merits may moot the second

phase of the proceeding. See id.
6

It is also apparent that by declining to ‘‘review’’ the arbitration panel’s award, the Board’s order determined rights from

which legal consequences will flow. The panel concluded that

the outsourcing was causally related to the 1988 merger and

that the SPEEC-represented individuals were ‘‘employees’’ of

the sort eligible for New York Dock benefits. Given the

Board’s decision upholding those conclusions, all that remains

to be decided is the amount of those benefits for each affected

employee. See Hart Surgical, 244 F.3d at 234–35 (holding

that court has jurisdiction under the Federal Arbitration Act

to review arbitration awards that determined only liability

and not damages). While those damages might amount to

nothing for any given individual, the chance that the remaining proceedings will moot the case by giving victory to Union

Pacific as to all claimants seems remote. See Public Utilities

Comm., 894 F.2d at 1377. Nor does it appear that the issues

likely to arise in such proceedings would much overlap with

the claims that are central here, so that serious duplication of

appellate effort seems unlikely. We find the Board’s decision

‘‘final’’ for purposes of our jurisdiction.

Standard of review

The carrier argues that we should review the arbitration

panel’s decision directly, rather than limiting our inquiry to

whether the Board acted arbitrarily and capriciously in the

application of its Lace Curtain standard. Compare Association of American Railroads v. Surface Transp. Bd., 162 F.3d

101, 112 (D.C. Cir. 1998) (Sentelle, J. concurring in part and

dissenting in part) (stating that the court may be required to

directly review the arbitrator’s decisions when the Board has

applied Lace Curtain review), with Swonger v. Surface

Transp. Bd., 265 F.3d 1135, 1139–40 (10th Cir. 2001) (stating

without explicitly deciding that judicial review is limited in

this situation to whether the Board properly declined to

review the arbitration panel’s decision). In Association of

American Railroads the Board had issued an order, under a

cognate labor protection provision, 49 U.S.C. § 10902(d), requiring arbitration for disputes arising under that order, and

we upheld the Board. Judge Sentelle noted in his concur-
7

rence that the court’s decision did not address the scope of

our review if an arbitration decision emerging from such a

scheme should reach us after the Board denied review under

its Lace Curtain standard. 162 F.3d at 111–12. He contrasted that scenario with ordinary arbitration arising out of a

party’s ‘‘voluntary act, either at the time of the dispute or at

an earlier time in a contract providing for such arbitration,’’

id. at 111, and reasoned that the Board could not, by combining its arbitration mandate with Lace Curtain review, ‘‘finesse a litigant’’ out of its statutory right to judicial review

under the standard principles of the Administrative Procedure Act (‘‘APA’’), 5 U.S.C. § 706(2). Association of American Railroads, 162 F.3d at 112. Accordingly, he said, we

would have to either ‘‘directly review’’ the arbitrator’s decision as a final agency decision, or find some other remedy.

Id. Union Pacific argues for precisely such direct review.

Whether the Board can finesse a litigant out of its statutory right to judicial review under standard APA principles

presents a serious question. Compare International Bhd. of

Elec. Workers v. ICC, 862 F.2d 330, 336 (D.C. Cir. 1988)

(noting that, had the ICC not elected to mandate arbitration,

‘‘all disputes over employee protective conditions would have

remained solely within the primary jurisdiction of the agency’’). And we note that although this court has repeatedly

rejected claims that the Board’s Lace Curtain standard of

review is too broad in scope, see, e.g., United Transp. Union

v. ICC, 43 F.3d 697 (D.C. Cir. 1995); Railway Labor Executives’ Ass’n v. United States, 987 F.2d 806, 811–12 (D.C. Cir.

1993) (per curiam); International Bhd. of Elec. Workers, 862

F.2d at 332, we have never before addressed the argument

that the standard is too narrow, or that the resulting layers

of deference unlawfully place the arbitration result beyond

judicial review. See 5 U.S.C. § 706; ICC v. Brotherhood of

Locomotive Eng’rs, 482 U.S. 270, 282 (1987) (‘‘While the

Hobbs Act specifies the form of proceeding for judicial review

of ICC orders, see 5 U.S.C. § 703, it is the Administrative

Procedure Act (APA) that codifies the nature and attributes

of judicial review[.]’’). Cf. Crowell v. Benson, 285 U.S. 22, 49–

52 (1932).
8

Nevertheless, because we find that the Board applied Lace

Curtain deference to the panel’s 2000 award in an arbitrary

and capricious manner, we leave to another day the question

of whether litigants are entitled to direct judicial review of

such arbitration decisions.

Merits

While Union Pacific attacks much of the arbitration panel’s

2000 Award, we find that as to two aspects the Board’s

nonchalant complaisance was arbitrary and capricious and

require that the Board order, and of course the underlying

award, be set aside.

In finding that the 1993 MIS outsourcing was causally

related to the 1988 merger the panel relied solely on a

declaration by Charles Lamb, the carrier’s Director of Labor

Relations. See 2000 Award at 13 (‘‘We believe the Lamb

Declaration is pivotal.’’); Lamb Declaration, at Joint Appendix 225–28. After ruling out ‘‘but for’’ causation as sufficient

to link the merger to the outsourcing, see 2000 Award at 11

(‘‘Not every adverse action following such a transaction necessarily is caused by the transactionTTTT The nexus or connection must be primary and direct rather than secondary and

indirect.’’), the panel found that:

Lamb states unequivocally in his Declaration that he

gave the [New York Dock] notice pertaining to the

1992 transaction and intended thereby to preserve

the Carrier’s option of outsourcing the MIS Department which he considered to have been authorized

by the ICC in the 1988 merger-control proceeding.

We believe that statement clearly links the outsourcing to the merger-control transaction such as to

establish sufficient causal nexus between the transaction and the outsourcing of the MIS Department.

2000 Award at 14. The Board ‘‘decline[ed] to review the TTT

causation finding’’ because ‘‘[t]he Panel found that Witness

Lamb’s testimony about the carrier’s meaning and intent of

the 1992 notice and agreement was more credible than the
9

testimony of a carrier witness, Thomas MatthewsTTTT’’

Board Decision at 7.

But in fact the Lamb Declaration doesn’t support the

panel’s conclusion. First, the panel found that Lamb ‘‘considered’’ the 1993 outsourcing ‘‘to have been authorized by the

ICC in the 1988 merger-control proceeding.’’ 2000 Award at

14; see also Lamb Declaration at 3 (‘‘To the extent that

outsourcing would subsequently consolidate or impact on the

MIS department employees, such effects were clearly authorized under the ICC transaction approvalTTTT’’). But it is

undisputed that the carrier did not begin to study the outsourcing of its MIS department until 1990, see 2000 Award at

3, and that the task force which recommended outsourcing

was not appointed until 1992, see id. at 4. Thus, the ICC’s

merger authorization could not have specifically contemplated

the 1993 MIS outsourcing; nothing Lamb ‘‘considered’’ could

change that.

Nor do Lamb’s other statements support the panel’s finding that the 1988 merger caused the 1993 outsourcing.

Lamb’s declaration said that the carrier’s 1992 New York

Dock notice was intended ‘‘to embrace all clerical, nonoperating positions, including the MIS employees,’’ Lamb

Declaration at 2, and that the carrier wanted ‘‘to preserve the

broadest authority granted us under the ICC transaction

approval to consolidate our clerical positions, thereby establishing the Carrier’s unfettered regulatory authority and discretion to implement any subsequent consolidations or personnel actions impacting on our clerical personnel, including

the MIS employees, arising from the D&RGW–SP transaction,’’ id. at 2–3. Rather than showing that the 1993 outsourcing was causally related to the 1988 merger, this opaque

statement says only that the carrier wrote its 1992 New York

Dock notice as broadly as possible so that it could implement

‘‘any subsequent consolidations or personnel actions TTT arising from the D&RGW–SP transaction.’’ Id. at 2. It thus

begs the question the arbitration panel was to answer:

whether the 1993 outsourcing in fact was a consolidation or

personnel action directly ‘‘arising from’’ the Denver & Rio

Grande/Southern Pacific merger. Compare Brotherhood of
10

Locomotive Eng’rs v. ICC, 885 F.2d 446, 451 (8th Cir. 1989)

(approving arbitrator’s finding of a ‘‘reasonably direct causal

connection’’—more than ‘‘a mere but for standard’’—between

the merger and the adverse action).

Not only did the Lamb Declaration not adduce a single fact

tending to establish a causal relation between the 1988 merger and 1993 outsourcing, but the timing and character of the

transactions undermine any such idea. Thomas Matthews—

who was primarily responsible for the outsourcing and who

did not join the carrier until 1991, three years after the

merger—explained that the outsourcing was done for financial reasons entirely unrelated to the merger. See Matthews

Declaration at 1–2. No evidence was offered contradicting

those reasons. Given that an outsourcing is on its face

utterly different from a consolidation, and that the merged

carriers had already consolidated their computer systems, it

would take some specific evidence to establish causality,

rather than the vague, question-begging conclusions offered

by Lamb.

In American Train Dispatchers Ass’n v. CSX Transportation, Inc., the Board explained that under its Lace Curtain

standard it would vacate arbitration awards ‘‘when there is

egregious error,’’ meaning that the award is ‘‘irrational,

wholly baseless and completely without reason, or actually

and indisputably without foundation in reason and fact.’’ 9

I.C.C.2d 1127, 1130–31 (1993) (internal quotations and citation omitted). But here the arbitration panel found the

Lamb Declaration to be ‘‘pivotal’’ even though it provided no

support whatever for a finding of causation, and all other evidence pointed away from such a finding. We conclude

therefore that the arbitration panel’s finding that the 1993

outsourcing was causally related to the 1988 merger was ‘‘actually and indisputably without foundation in reason and

fact,’’ and that the Board acted in an arbitrary and capricious manner in not ‘‘reviewing’’ the 2000 Award, even under

the Board’s generous Lace Curtain standard of review.

Although this error is reason enough to vacate the Board’s

order, the Board and arbitrators committed a second plainly
11

egregious error in upholding SPEEC’s persistent refusal to

identify the MIS employees that it purported to represent.

See Celtronix Telemetry, Inc. v. FCC, 272 F.3d 585, 587 (D.C.

Cir. 2001) (‘‘If a plaintiff presents two or more alternative

grounds as routes to its hoped-for ultimate victory, a court

does not lose jurisdiction over the second claim once it has

ruled in the plaintiff’s favor on the first claim; victory on the

first claim doesn’t moot the second.’’ (citation omitted)). The

Board first argues that the carrier is precluded from making

this argument because it did not do so below. The record

shows otherwise. The carrier brought this issue first to the

attention of SPEEC and the neutral arbitrator, see September 24, 1997 letter from Clifford A. Godiner to John F.

Henning, Jr. (‘‘1997 letter’’), and later argued it on appeal to

the Board, see Carrier’s Appeal From Arbitration Award at

19–20. And both the arbitrator and the Board addressed the

carrier’s argument that SPEEC should be required to identify those employees who had designated SPEEC as their

representative. See 2000 Award at 25; Board Decision at 6–

7. Although the carrier didn’t articulate the problem as

sharply as it does now, any serious focus on its complaint

about SPEEC’s refusal to identify those it claimed to represent, or to demonstrate its representative authority, would

have led a decisionmaker to the core problem. Accordingly,

we will review the arbitrators’ and the Board’s decisions on

this issue.

We do not question for a minute the Board’s view that nonunion employees seeking New York Dock benefits may agree

to be represented by a single lawyer or firm. See Board

Decision at 6–7. Further, we may assume that such employees may enter into binding agreements among themselves

about the allocation of costs, etc. But both arbitrators and

Board appear to have been willfully blind to the effects of

their decisions allowing SPEEC to operate behind an impenetrable veil. SPEEC’s complete opacity as to just who it

represented put the carrier in a classic heads-I-win-tails-youlose position. If SPEEC’s approach were valid, the preclusive effects of any judgment would be thoroughly asymmetrical. Just as victory has a thousand fathers while defeat is an
12

orphan, a SPEEC victory could be invoked by all MIS

employees and a SPEEC defeat could be disclaimed by all—

except the four proceeding under their own names. The

judgment would give the carrier neither the preclusive effects

of litigation with a bargaining unit’s exclusive representative,

nor those of a class action, in which a class is certified, notice

is given, and potential class members must affirmatively opt

out, see Fed. R. Civ. P. 23(c)(1)-(2). While the Supreme

Court has allowed the use of non-mutual collateral estoppel,

see Blonder-Tongue Labs., Inc. v. University of Ill. Found.,

402 U.S. 313 (1971); see also Parklane Hosiery Co. v. Shore,

439 U.S. 322 (1979) (allowing offensive non-mutual collateral

estoppel), it has rested such use on the view that relitigation

of an issue, once resolved in a case giving the losing party a

full and fair opportunity to defend, would waste resources.

See, e.g., Blonder-Tongue, 402 U.S. at 329; Parklane, 439

U.S. at 329–33. Even then, it disallows preclusion where its

use would create perverse incentives or unfairness. Parklane, 439 U.S. at 331. Here, the arbitrators’ decision allowing

SPEEC to keep its membership secret gave potential plaintiffs ‘‘every incentive to adopt a ‘wait and see’ attitude,’’ id. at

330, entitled to any winnings and free from any losses. That

incentive, and the absence of any drawback to requiring

SPEEC to identify the employees it represented up front,

clearly demonstrate the arbitration panel’s error. This grotesquely lopsided procedure seems precisely the sort of

‘‘egregious error’’ that even under Lace Curtain the Board

should be expected to quash.

As the award and the order are also subject to vacation on

substantive grounds, this procedural error can entail no immediate additional remedy. In the event of further New

York Dock claims by MIS employees, it will remain for the

Board in the first instance to determine the preclusive effects

of this judgment. The panel noted and apparently accepted

as probative a declaration by a founding member of SPEEC

to the effect that 287 MIS employees attended an initial

SPEEC meeting, that a majority at that meeting ‘‘designated

SPEEC to represent them,’’ and that ‘‘such majority made a

financial contribution’’ to fund the arbitration proceeding.
13

2000 Award at 25; see also Markovich Declaration at 4–5.

SPEEC submissions evidently allude to ‘‘sign-up sheets’’ distributed at several meetings and to lists of persons who

‘‘signed up,’’ see 1997 letter, but SPEEC never disclosed any

such lists or sign-up sheets.

* * *

The Board’s decision is accordingly reversed.

So ordered.
1

KAREN LECRAFT HENDERSON, Circuit Judge, concurring in the

judgment:

I concur in the majority’s holding that the arbitration panel

committed egregious error in finding the 1993 MIS outsourcing causally related to the 1988 merger and that the Surface

Transportation Board therefore acted arbitrarily and capriciously in denying review of the erroneous arbitration award.

I do not join the majority’s discussion of what it terms the

‘‘second plainly egregious error’’ of the arbitration panel,

upheld by the board—namely, failing to require SPEEC to

identify the employees it represented. Maj. op. at 10–12.*

Whether or not the majority is correct that this failure was

‘‘procedural error,’’ there is, as the majority apparently recognizes, no need to address the issue in light of our having

found egregious error in the panel’s substantive decision. See

maj. op. at 12 (‘‘As the award and the order are also subject

to vacation on substantive grounds, this procedural error can

entail no immediate additional remedy.’’). In the unlikely

event that an employee makes a future New York Dock claim

related to the 1993 outsourcing (notwithstanding our substantive holding in favor of Union Pacific), at that time, as the

majority indicates, the Board might have occasion to decide

whether the claim is barred by collateral estoppel because the

claimant was a party to this arbitration with a full and fair

opportunity to litigate the causality issue. See maj. op. at 12

(‘‘In the event of further New York Dock claims by MIS

employees, it will remain for the Board in the first instance to

determine the preclusive effects of the judgment.’’); Kremer

v. Chem. Constr. Corp., 456 U.S. 461, 480–481 (1982) (collateral estoppel applies only when party against which earlier

decision is asserted had ‘‘ ‘full and fair opportunity’ to litigate

that issue in the earlier case’’) (quoting Allen v. McCurry, 449

U.S. 90, 95 (1980); Montana v. United States, 440 U.S. 147,

153 (1979); Blonder-Tongue Labs. v. Univ. of Ill. Found., 402

U.S. 313, 328–29 (1971)) (footnote omitted); see e.g., Bhd. of

Locomotive Eng’rs v. CSX Transp. Inc., 9 I.C.C.2d 713, 723

(1993) (finding no collateral estoppel because employees were

* I also do not join in the majority’s speculation on whether the

court should—in another case—conduct direct review of an arbitrator’s decision. See maj. op. at 6–8.
2

not parties to earlier proceedings); id. at 727–28 (two commission members dissenting because it appeared employees

seeking labor protection were represented by union in prior

proceeding). Until such time, discussion of the procedural

issue is hypothetical. Accordingly, I see no reason to address

it in our review of the STB decision now before the court.