(202)523-5920

NATIONAL MEDIATION BOARD Washington, D.C. 20572

On April 22, 1992, the Delaware & Hudson Railway Company (D&H), invoked the Board's Procedures for Handling Representation Issues Resulting from Mergers, Acquisitions or Consolidations in the Railway Industry, 17 NMB 44 (1989) (Railroad Merger Procedures).
D & H invoked the Railroad Merger Procedures to resolve "representation disputes existing on the new D & H which arise from previous acquisitions" of rail lines and trackage rights over the former Erie Lackawanna Railway Company, the Lehigh Valley Railroad Company, and the Penn Central Transportation Company. Specifically, D & H asserted that it has a single collective bargaining agreement with the United Transportation Union (UTU) covering the craft or class of Trainmen. D & H sought to extinguish the representation rights of UTU's five general chairmen based upon their representational rights on the predecessor carriers. D & H asked the Board to declare "a single representative . . . for the system-wide craft or class of Trainmen."

In cases commenced under the Railroad Merger Procedures, the Board typically determined whether the corporate entities had sufficiently integrated their operations such as to constitute a single transportation system. Once that issue was resolved, the Board would then address the representation consequences of the establishment of the single transportation system.

This matter was held in abeyance pending the litigation in Railway Labor Executives Ass'n v. NMB, 29 F.3d 655 (D.C. Cir.), amended, 38 F.3d 1224 (1994), cert. denied, 514 U.S. 1392 (1995).

In RLEA v. NMB, supra, the Court of Appeals held that neither carriers, nor the Board sua sponte, could initiate representation investigations under Section 2, Ninth of the Act. 29 F.3d at 666. The Court specifically recognized that the Board's jurisdiction could be invoked by unions acting on behalf of employees. RLEA, 29 F.3d at 669 n.8. On remand, the District Court declared only that the Railroad Merger Procedures were "invalid insofar as they permit the National Mediation Board, either sua sponte or at the request of a carrier, to investigate employee representational disputes." RLEA v. NMB, No. 89-3306, slip op. at 2 (D.D.C. June 30, 1995). See also Simmons Airlines, 25 NMB 168 (1998).

The Railroad Merger Procedures previously permitted carriers to invoke the Board's services. The jurisdictional principles of RLEA are pertinent to the Board's threshold power to commence an investigation pursuant to Section 2, Ninth of the Act. Accordingly, carriers may not invoke the Board's services under the Railroad Merger Procedures for the jurisdictional reasons enunciated in RLEA v. NMB. The Railroad Merger Procedures remain valid when they are invoked by a labor organization. See, e.g., Illinois and Midland Railroad Company, 25 NMB 57 (1997).

Because D & H invoked the Railroad Merger Procedures which led to the commencement of this investigation, this matter must be dismissed. The Board's File Number MT-29 is converted to R-6581 and is hereby dismissed.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff