The parties to this procedural Board had originally docketed a case before the National Railroad Adjustment Board under title of Case 88-3-24. After that case remained pending before the Third Division for more than one (1) year the Carrier exercised its privileges under Section 153, Second of the Railway Labor Act and withdrew the case with intention of docketing it before a Public Law Board with the organization. For the record, Section 153, Second of the statute of 1926 & amendments reads, in pertinent part, as follows:
On March 1, 1990 the General Chairman of the Organization in Longview, Texas sent and proposed to the Carrier's Director of Labor Relations a Public Law Board Agreement with usual provisions dealing with designation of interested members, how the neutral member of this proposed Board would be chosen and so on. Also included in this proposed Agreement was one provision which ultimately served as cause for the establishment of the instant procedural Board.
Section 6 of the proposed Agreement contained the following language:
The Carrier's Director of Labor Relations found the language of this proposed provision objectionable and he stated as such in letter to the General chairman under date of March 9, 1990. Therein
-3· the Carrier's officer stated the following, in pertinent part:
The reasoning used in this case by the Carrier is clear both with respect to its intentions on the issue of evidence which ought to be permissible in Public Law Board forums, as well as, it appears, with respect to specific intentions related to the case it pulled down from the NRAB which it wants to docket before a merits board with the organization. With respect to the latter, the Carrier makes no bones about strategy: its "main reason for withdrawing the case from the NRAB was so that (additional) evidence of past practice (related to the case) could be introduced..." Evidently, it takes no course in Aristotelian logic to permit conclusion that a restrictive evidentiary clause would cut such strategy off at the pass under a Public Law Board format dealing with that case. Having stated that the Carrier then resorts to idealized arguments related to rationality. By so doing, it states, for example, the followings "...(h)aving all evidence is a necessary precondition which must be met in order for an arbitrator to reach an informed decision". The Carrier then cites, in its submission, observations on evidence from Elkouri and Elkouri's standard text on arbitration. Therein it is noted that
"strict observance of the legal rules of evidence usually (are) not required" albeit the parties may, on rare occasions, require arbitrators to do so. Procedures to the contrary are, however, more common. In this respect, Elkouri at al. cite both Rule 28 of the AAA and the policy of the NRAB itself. Of particular interest to the Carrier, with respect to this case, is the opinion of Elkouri at al. on the admission of evidence wherein it is stated:
The Carrier, therefore, concludes that "restrictions on submission of evidence which the Organization is attempting to establish (in this case) are contrary to-the basic tenants of arbitration". It furthermore argues that it is willing to accept the format of an older PLB Agreement in effect on this property between the (old) Missouri Pacific and this same organization which was established in 1959 and is Board 279. Pertinent provision of that Agreement, which is of interest to the Carrier, is couched in the following language at Section I. There the parties agreed: " ....The Board shall have authority to require the production of such additional evidence, either oral or written, as it may desire from either party". The Carrier argues that there are various Public Law Board Agreements already in affect on this property which do not contain "any restrictions on presentation of evidence". The carrier
cites as examplesfive (5) different Agreements in effect on this property between the Eastern District of the UP and UTU(1986); the same organization and this carrier(1985); the BLE and the Carrier(1987); the Signalmen and the UP(1989); and the UP and (former) BRAC(1986). As a matter of arbitral precedent, the Carrier also cites Award 1 of Public Law Board 322 (1969). That Award, result of a procedural dispute between the Illinois Northern Railway and the UTU, centered on an issue somewhat parallel to the one at bar. In the Award to that procedural Board the majority, with dissent by the organization Member, ruled in pertient part that language to an Agreement could include the following:
In effect, the neutral member of the Board, in that case, agreed with the Carrier's proposal for such language to be included in the provisions of a Public Law Board Agreement.
Lastly, the Carrier argues that conclusions found in Award 1 of PLB 363 also can be incorporated herein, by reference, with its position on the matter before the instant Board.
The organization, on the other hand, argues that a Public Law Board Agreement ought to have restrictive provisions, such as that proposed to the Carrier in the instant case, in order to "insure
-6~ that (a) Board ...consider (only) the facts of a dispute as they ware developed and presented on property". Secondly, the organization argues that even without such restrictive provision new evidence ought not be permitted at this stage of the process in order to provide closure.
In terms of specifics, the Organization argues that such provisions in Agreements such as they suggest do exist. For example, A Burlington Northern and, a BMWE Agreement(i990) at Section 6 places restrictions on the type of information to be presented to the neutral but does provide, in pertinent part, that "...(a)11 written evidence must be submitted as provided ...and no written rebuttals will be permitted, except for the provision of specific information requested by the .neutral". It not exactly clear if this Agreement, nor another one cited by the organization were, submitted to the book of randua numbers, but such does surely represent language found in certain Public Law Board Agreement negotiated over time.
The Organization also argues that many Agreements have no language referring to restrictions on evidence and when that is the case arbitral conclusions serve as guide. rn this respect both PLB Awards and Awards issued from various Divisions of the NRAB hold that the introduction of new evidence after a case has been docketed represent ambush.
The last arguments presented by the organization deal with efficiency and public policy. According to reasoning offered by the
-7union with respect to the former if one can take two bites out of an apple, why not three or four and where would the process stop? Second, with respect to the latter, if one or the other party does not put all its cards on the table according to a given time-table and/or procedure which both can live with the result would be havoc and ultimately a "waste of public and private funds", according to argument by the union. Such, the union argues, would be particularly true if a case is pulled down from one of the Divisions of the NRAB only to be brought back to the point in the process where one side or the other would re-prepare the same case and bring it to another forum. Since that is what the Carrier is attempting to do here, according to the Organization, such would but open the "flood gates" for more abuse and misuse of the arbitration process.
The only reason for this procedural Board is to attempt to resolve the problem of how to bring a case to arbitration relative to admissible evidence. Before the NRAB, and in PLR and SBA forums in this industry where there is no specific contractual language dealing with admissible evidence, the parties leave the resolution of this question to the articulation of the doctrine of Circular No. 1 of 1934 which states, for the record, the following in pertinent part:
Third Division Award 27576 dealing with a dispute between the Organization which is party to this case and the Delaware and Hudson Railway Company embodies arbitral precedent with respect to the question of Circular No. 1 and evidence in fairly typical language when it states the following:
parties during the handling of a case on property. Such doctrine is codified by circular No. 1 and articulated by Awards emanating from various Divisions of this Board..." According to the Carrier, which is what started the instant controversy in the first place, the precedent outlined above does not, and even ought not, apply to PLB forums. To support its argument, the carrier cites various PLB Agreements currently
in force on its property. A review of the language of these Agreements, in pertinent part shows that the following provision, in part, is common: "...(t)he Board will have authority to require the production of such additional evidence, either oral or written, as ,t may desire from either p~artv..." (Emphasis added). This language is found in a UTU Agreement with the Carrier (1986) 8 (1985), in substance with slightly different wording in a BLE Agreement with the carrier (1987) and in a TCU (old BRAC) Agreement with the carrier (1986). A newer Agreement (1989) between the Signalmen and the Carrier has language which appears to be a little at variance with the above and this Agreement states the following,
in pertinent part: "...(t)ths g2&rA shall have the authority to oarmit or recruit =a--Parties to produce additional evidence, either written or oral, as it deems necessary, providing that the additional evidence pertains eriaZmaterially to the issus or fssues raised by, OA PRESENTED IN, the record of the case..." (8mphasis added). Evidently, this latter agreement presented by the Carrier does not support its position since it precisely wishes to add to the record of the case which its wants to present, on its merits, before a Public Law Board which is a case it pulled down from the HAAB.
None of the Agreements cited by the Carrier, however, albeit they certainly go further than the restrictions strieto dicto found in Circular No. 1, permit either interested party the license, to introduce new evidence or arguments at tha*hearing stags of a case. What the language of these Agreements does is permit the neutral members certain subpoena powers, so to speak, to request additional information if the neutral so wishes. Such powers might be useful, from this neutral's experience, not with respect to the merits of a case, but with respect to the operationalisation, for example, of relief in certain types of cases dealing with continuing liability and so on. The Carrier quotas fairly extensively Elkouri & Elkouri as support of its position. Clearly this manual on arbitration centers on arbitral procedures generally designated as de novo hearings albeit there is a school of arbitral thought which holds that all discipline cases are, in fact, appellate by
.1e. definition and that the introduction of totally new evidence at a hearing which had not been handled by the parties in prior steps of the grievance procedure is improper. Although it is true also that the strict rules of evidence do not apply to arbitration hearings under such format it is also true, as a point of information, that certain union contracts handle an issue such as the one before this Board in a contractual manner. Such is the case with such national level contracts negotiated between the United mine workers of America and the Bituminous coal Operators' Association, and between the American Postal Workers Union and the U.S. Postal Service. Thus the issue raised in this case is neither new nor novel to other forums and contractual restrictions of the type requested by the Organization, in this case, also apply.
The Carrier's strongest argument is found in a prior Award issued in 1969 under title of PLB 322 (Procedural Board). This older Award appears to go beyond the bounds of any other arbitral, procedural or Agreement restrictions cited in the foregoing and appears to explicitly permit the parties to = new evidence to the record of a case after it has been pulled down from the NRAB and proposed for PLB handling. In the Award (unumbered) to that Board, the neutral states the following, in pertinent part:
"...(t)he Employees' ex parts submission, the carrier's answer thereto, and the Employees' rebuttal statement which are in the file to be withdrawn from the first Divis on of the NRAp shall be part of the Board record herein, but the reaesd need nat be
Confined to the seas. The Board. shall have authority Lo request the production of additional evidence from either party ... 11 The problem with this Award is that it appears to open itself to the possible interpretation of permitting the parties themselves to add to the record of a case pulled down from the Board whether, in fact, that is the only possible interpretation possible or not. If that is what this Award says, or can be interpreted to mean, it is highly idiosyncratic and would be considered by the vast majority of neutrals in this industry to be ill-reasoned.
The primary basis of the argument by the Carrier is that a neutral must have the full record before him or her in order to arrive at a wall-framed Award. As a rational principla,that is indisputable. On the other hand, neutrals in this industry and in every other one work with what the parties present to them: cases havo been won and lost on basis of quality of preparation. Such is no well-guarded secret in arbitral arenas. At some point the process must have closure: by tradition and precedent this is when a case, appealed and confereneed by the parties, is at impasse and the parties agree to docket it before a neutral forum. The parties have full freedom to develop their easels) up to that point. At some point, however, the process of discovery has to stop. Forums in this industry have concluded on basis of Circular No. 1 that the process absolutely stops at docketing, or PLB°s have used the more liberal formula of permitting the neutral, under title of the "Board" to solicit additional information if a point is obscure
(presumably) or if questions of relief arise and so on. PLH 322 may or may not (depending on interpretation) have gone further than that. If it did, it is off the beaten track. The proposal by the carrier in this case would be viewed by all opponents, i! not all neutrals, as an invitation to an unending process of discovery.
To rule in the Carrier's favor would set precedent which would permit all parties, Carriers and Organizations, free rein to pull down cases from all of the Divisions of the NRAB and then add to their records in a potentially non-ending process. If information can be added to the record after a first docketing, why not after argument of the case before the neutral before the issuance of the Award, ete.? The language suggested by the Organization in this case is but verbalization of arbitral precedent absent any language at all in an Agreement of the kind at bar. Less restrictive language could, no doubt, be used but that option is not before this Hoard. Given the record before this Board, therefore, and the question posed to it, the answer to the query must be in the affirmative.
Avard
of new evidence during a PLB hearing. Boiler plate language presented to the neutral in this case which addressed the new evidence issue is the language quoted at pp. 8 et al. in the Award which assigns such prerogatives to the neutral, under title of the "Board" , certainly to be used in only the most extraordinary cases.
There was no misunderstanding of the issue at bar in this case by the neutral. Such contention by the Carrier Member is an interesting, but flawed, tactic introduced in Executive session to but continue arguing a case for which an arbitration decision has already been rendered.
A final question was raised during the Executive Session with respect to the finality of Award 1 of Public Law Board No. 4962 since the Award had not yet been signed by the Carrier Member as of that date. Legal status of arbitration Awards in this industry need only signatures by the majority. Such status take effect upon the date of the signature, if duly noted on the Award, of the second person of the majority.