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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, Sur-
face 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 carri-
er. 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 Den-
ver & Rio Grande; as a result, it and the Transportation
Communications Union entered into a 1992 Implementing
Agreement governing protection for certain groups of poten-
tially affected employees.
In 1993 a task force headed by Thomas Matthews, the
carrier’s Senior Vice President and Chief Administrative Offi-
cer, 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 Arti-
cle IV of the New York Dock conditions.
The parties agreed to bifurcate the arbitration, initially
addressing only those issues applicable to all claimants. Af-
ter 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 SPEEC-
represented individuals were ‘‘employees’’ rather than man-
agement 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 arbitra-
tion 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 oth-
erwise significant issues of general importance re-
garding the interpretation of our labor protective
conditions.’’ TTT We do not review issues of causa-
tion, 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 ‘‘de-
nied’’ 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, single-
spaced 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 juris-
diction 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 ‘‘tenta-
tive’’ 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 consid-
eration.’’); 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 agree-
ment by the parties, to redetermine that issue.’’); see gener-
ally 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 wheth-
er 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 arbitra-
tion 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 remain-
ing 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 Associa-
tion 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), re-
quiring 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 contrast-
ed 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 combin-
ing its arbitration mandate with Lace Curtain review, ‘‘fi-
nesse a litigant’’ out of its statutory right to judicial review
under the standard principles of the Administrative Proce-
dure Act (‘‘APA’’), 5 U.S.C. § 706(2). Association of Ameri-
can Railroads, 162 F.3d at 112. Accordingly, he said, we
would have to either ‘‘directly review’’ the arbitrator’s deci-
sion 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 statuto-
ry 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 agen-
cy’’). 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 Execu-
tives’ 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 Appen-
dix 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 neces-
sarily is caused by the transactionTTTT The nexus or connec-
tion 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 Depart-
ment which he considered to have been authorized
by the ICC in the 1988 merger-control proceeding.
We believe that statement clearly links the outsourc-
ing to the merger-control transaction such as to
establish sufficient causal nexus between the trans-
action 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 ‘‘consid-
ered’’ 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 author-
ized under the ICC transaction approvalTTTT’’). But it is
undisputed that the carrier did not begin to study the out-
sourcing 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 find-
ing 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, non-
operating 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 estab-
lishing the Carrier’s unfettered regulatory authority and dis-
cretion to implement any subsequent consolidations or per-
sonnel actions impacting on our clerical personnel, including
the MIS employees, arising from the D&RGW–SP transac-
tion,’’ id. at 2–3. Rather than showing that the 1993 out-
sourcing 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 aris-
ing 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 merg-
er 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 finan-
cial 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 Transporta-
tion, 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 cita-
tion 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 ev-
idence 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 ‘‘ac-
tually and indisputably without foundation in reason and
fact,’’ and that the Board acted in an arbitrary and capri-
cious 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 Septem-
ber 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 identi-
fy 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 repre-
sent, 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 non-
union 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 employ-
ees 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 impene-
trable veil. SPEEC’s complete opacity as to just who it
represented put the carrier in a classic heads-I-win-tails-you-
lose position. If SPEEC’s approach were valid, the preclu-
sive effects of any judgment would be thoroughly asymmetri-
cal. 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. Park-
lane, 439 U.S. at 331. Here, the arbitrators’ decision allowing
SPEEC to keep its membership secret gave potential plain-
tiffs ‘‘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 gro-
tesquely 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 im-
mediate 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’’ dis-
tributed 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 outsourc-
ing causally related to the 1988 merger and that the Surface
Transportation Board therefore acted arbitrarily and capri-
ciously 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 recog-
nizes, 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 substan-
tive 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) (collater-
al 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 arbitra-
tor’s decision. See maj. op. at 6–8.
2
not parties to earlier proceedings); id. at 727–28 (two com-
mission 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.