NARRator

OFFICIAL NEWSLETTER
OF THE NATIONAL ASSOCIATION OF RAILROAD REFEREES
JUNE 2003

Many arbitrators who are unfamiliar with railroad arbitration under the Railway Labor Act often seem to underestimate the quality of arbitral experience it provides referees. The "value" of railroad caseloads has been debated for decades, particularly with respect to determining arbitrator qualification for NAA admission. Those who oppose counting NMB cases in a candidate’s application for NAA membership often list the following "deficiencies" in NMB case experience when evaluated against "ad hoc" case experience:

1. Since the process is appellate, rather than de novo, railroad referees gain no experience in holding hearings or making oral evidentiary rulings.
2. In a railroad case there is no opportunity to judge witness demeanor. Instead, the referee receives the transcript of an investigation held on the property, and it includes all the oral testimony that will be considered on the record.
3. Even if a referee has heard dozens of cases, those cases are in a single industry. Accordingly, the referee does not gain breadth of experienced from dealing with various workplaces, unions and products.
4. Since referees hear many cases in one day, they cannot be as complex as ad hoc cases, in which hearings normally take a day or more to complete.

While the staunchest critics may never value the experience gained through hearing and deciding NMB cases, I would make the argument that these cases should at a minimum be respected as an excellent training ground for all arbitrators. In response to the four general criticisms listed above, I would offer the following response:

1. Although the process is appellate, railroad referees must be adept at evaluating evidence presented to them, whether in the form of oral testimony recorded in the hearing transcript or in the form of written evidence presented as part of the case file. A referee must be skilled at differentiating between unsupported declaratory statements made by parties in their submissions to the Board and objective evidence presented in the file. This requirement is closely similar to the care with which an ad hoc arbitrator must read the parties’ respective post-hearing briefs. Both decision makers must take care to differentiate between partisan position and fact. Further, railroad arbitration does require rulings on "post filing" evidence, and there are special circumstances in which evidentiary hearings are conducted.

   Moreover, referees are often presented with documentary evidence to which they must assign evidentiary weight. What is the probative value, for example, of the duplicated letter attesting that members of an organization have "always" (or "never") performed a certain kind of work, when it is clear that the only "original" part of each such statement is the member’s signature? Or is a single voucher from a single outside contractor sufficient evidence that a carrier has "often" sub-contracted the work in question?
   

2. While it is true that the referee does not listen first-hand to the testimony on the transcript or have the opportunity to observe witnesses’ demeanor, that does not utterly deprive him/her of insight into the veracity of witnesses. Experienced referees become attuned to internal inconsistencies in witness testimony-a skill that certainly stands them in good stead in ad hoc proceedings. One might even suggest that because the printed work is devoid of "body language," a referee has a better opportunity to analyze (and re-analyze) testimony than does an ad hoc arbitrator.

   In addition to evaluating witness testimony, the referee is also required to make an assessment of whether the claimant received a "fair and impartial" hearing on the property. Referees must have a firm understanding of what constitutes due process. Although most carrier officers preside over investigations even-handedly, some may not. Referees must also be able to judge whether the notice of charges gave the claimant sufficient information for him to mount an informed defense-an issue which is often in contention in ad hoc discipline cases.
   

3. Although the railroads are technically a single industry, that industry is extremely complex and encompasses many work environments. Among the "sub-industries" found in the railroads are food service, construction, machine shops, data entry and analysis, radio transmission and repair, and transport traffic control. In addition, separate railroad unions represent varying classes of workers. Accordingly, referees gain a broad spectrum of experience in many different industrial settings within the railroad industry.

   Adjudication of railroad cases also requires referees to learn a large number of terms peculiar to th railroad industry. Railroad referees learn early on to ask questions when they do not understand an industry-specific term- a habit that carriers over to their ad hoc work. Any referee who has encountered broken frogs, hi-rails, extra boards, EOT’s and bump yards knows the importance of seeking clarification of arcane industry terms.

   Yet another area in which referees become schooled is the impact of technological change upon the workplace. Railroad referees have a heightened awareness of the array of challenges facing both management and unions in any industry in which it is imperative to strive for efficiency, and in which jobs inevitably are changed, created, and/or lost with each technical advancement.
   

4. Finally, although referees normally hear more than one s in one day, that should not be taken as an indication that the cases are "easy"or "trivial." Many are far more challenging than some of the cases we hear as ad hoc arbitrators. Part of the reason a railroad case can be handled effectively in a shorter period of time is that the entire record is before the referee prior to the parties’ presentation of each case. In many instances, the referee has red the documents in the case file beforehand and has developed an understanding of the case in advance. Ad hoc arbitrators rarely receive such information prior to the commencement of the hearing. (One might speculate upon how much more quickly some ad hoc hearings would be completed if they did.)

   In many ways the volume of railroad cases that may be heard in a few days constitutes the procedure’s greatest asset as a training tool for arbitrators. In the short span of a day, a referee may be confronted with a wide variety of labor/management issues. It would not be unusual, for example, for a single docket of contract dispute cases to deal with such matters as work assignments, overtime, meal allowances, sub-contracting, clocking-in procedures and pay for time spent in job training. Ad hoc arbitrators would normally have to wait months or years before encountering such a spectrum of issues.

The standards that referees employ in deciding railroad cases are not different from those used in ad hoc cases. Weighing of evidence, determining whether burdens of persuasion are met, and assessing whether discipline assessed is commensurate with the infraction committed are all deliberation processes common to both types of labor arbitration. Notwithstanding, the experience referees gain from cases heard in Public Law Boards, Special Boards of Adjustment or at one of the four divisions of the Railroad Adjustment Board may never be highly valued by arbitrators with no railroad experience.

Despite the obvious differences between appellate and ad hoc arbitration, however, it is well to recognize that the skills required in order to become competent railroad referees and the experience gained in that appellate forum inevitably contribute to the quality of deliberation and decision-making that railroad referees bring to their ad hoc arbitration practices.

June 2003

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