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 37-38.* 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 38 (“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 38 (“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, 102 S.Ct. 1883, 72 L.Ed.2d 262 (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, 101 S.Ct. 411, 66 L.Ed.2d 308 (1980); Montana v. United States, 440 U.S. 147, 153, 99 S.Ct. 970, 59 L.Ed.2d 210 (1979); Blonder-Tongue Labs. v. Univ. of Ill. Found., 402 U.S. 313, 328-29, 91 S.Ct. 1434, 28 L.Ed.2d 788 (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 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.
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 34-36.