                              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
