(dissenting in part).
I am impelled to dissent from that part of the majority opinion relating to the reviewability of the order of the National Railway Adjustment Board.
The plaintiff was not denied procedural due process in the proceeding before the Board. But in addition to procedural due process he was entitled to substantive due process.
The Board’s decision rested upon an interpretation of Article 40 of the collective bargaining agreement, which provided that in a disciplinary proceeding an accused employee “shall be permitted to examine all witnesses * * * pertaining to the case.” Thus the contract stipulated, clearly and unambiguously, that the railroad was required to afford its employees one of the basic rights of a fair hearing — the right of confrontation. There was no room for an alternative interpretation. Yet the Board interpreted the provision to include only those witnesses “under the control or direction of the carrier,” thereby excusing the nonappearance of the only witness who had firsthand knowledge of the charge against the plaintiff. This was an impermissible interpretation because it denied the plaintiff the very right that the contract unequivocally guaranteed him. The Board’s ruling was arbitrary, capricious, and unreasonable. As a consequence, the plaintiff was denied substantive due process. In such circumstance, the courts are authorized to review the action of the Board. Union Pac. R.R. v. Price, 360 U.S. 601, 616, 79 S.Ct. 1351 (1959).