(202)523-5920

NATIONAL MEDIATION BOARD Washington, D.C. 20572

25 NMB No. 55

February 19, 1998

Michael H. Boldt, Esq.

Ice Miller Donadio & Ryan

One American Square

P.O. Box 82001

Indianapolis, IN 46282-0002

Re: NMB Case No. R-6514

The Indiana Railroad Company

Dear Mr. Boldt:

This determination addresses The Indiana Railroad Company's November 11, 1997, "objections" to the Board's November 5, 1997, certification of the Brotherhood of Locomotive Engineers (BLE) as the representative of Train and Engine Service Employees of the The Indiana Railroad Company.

I.

On May 12, 1997, the United Transportation Union (UTU), filed an application covering the craft or class of Train and Engine Service Employees on The Indiana Railroad Company. BLE filed an application covering the same craft or class on May 21, 1997. On July 29, 1997, the Board conducted a ballot count in this case. The results were that of 21 eligible voters, seven cast valid ballots for BLE, and there was one void ballot. As less than a majority of eligible voters had cast valid ballots, on August 1, 1997, the Board issued a Dismissal. The Indiana Railroad Company, 24 NMB 566 (1997).

On August 11, 1997, BLE filed a Motion for Reconsideration supported by statements from several employees who maintained they had returned their ballots in a timely manner. The Board conducted an investigation which revealed that none of the ballot return envelopes which the Board had sent to the employees contained postage, although the envelopes indicated that the Board had prepaid the postage. After receiving responses from UTU and the carrier, on September 18, 1997, the Board ordered a re-run election. The Indiana Railroad Company, 24 NMB 708. In its decision, the Board found that BLE's Motion For Reconsideration was untimely, but the Board exercised its statutory discretion to investigate further by re-running the election. The Board ordered that the original cut-off date, April 10, 1997, be used, despite the carrier's assertion that six new individuals had been hired.

On September 23, 1997, the carrier requested reconsideration of the cut-off date. On October 29, 1997, in The Indiana Railroad Company, 25 NMB 68, the Board denied the carrier's Motion.

The count took place on October 31, 1997. Of 21 eligible voters, 11 cast valid ballots for BLE, and one cast a valid ballot for UTU. Accordingly, on November 5, 1997, the Board certified BLE.

II.

The carrier challenges the Board's certification on a two-part basis. First, the railroad contends that UTU interfered in the election. Second, the carrier once again contests the use of the original cut-off date.

According to The Indiana Railroad, a representative of UTU informed employees that if they did not vote for the union, they would lose their jobs. The carrier also argues that because at the time of the count there were 29 employees and only 12 voted for union representation, this was "clearly less than a majority."

BLE filed a response to the carrier's submission on November 14, 1997. The organization argues that the carrier's objections should be denied because of untimeliness and because the interference allegations involved UTU.

On December 1, 1997, the Board received a response from UTU which included a declaration from the UTU representative alleged to have threatened the employees, John Burner. In addition, UTU submitted copies of letters Burner sent to the employees. According to Burner, he simply informed employees that CSX has control of, and will own the The Indiana Railroad by March 31, 2000. On December 4, 1997, and December 22, 1997, the carrier submitted declarations from three employees who maintain that Burner told them they would lose their jobs if they did not vote "union." The carrier has requested the Board to investigate this matter further.

III.

Section 18.0 of the Board's Representation Manual provides as follows:

18.0 MOTIONS FOR RECONSIDERATION

Motions for Reconsideration of Board decisions concerning jurisdiction, craft or class, challenges or objections or election interference will be given consideration only upon the following circumstances: 1) the motion (original and one (1) copy) is received by the Chief of Staff within five (5) working days of the decision's date of issuance; 2) the motion is accompanied by a certificate of service which attests to its simultaneous service on the designated participants in the proceeding; and 3) the motion states with particularity the points of law or fact which the movant believes the NMB has overlooked or misapplied and the detailed grounds for the relief sought. Upon consideration of a Motion for Reconsideration, the NMB will decline to grant the relief sought absent a demonstration of material error of law or fact or under circumstances in which the NMB's exercise of discretion to modify the decision is important to the public interest. The mere reassertion of factual and legal arguments previously presented to the NMB generally will be insufficient to obtain relief. Reconsideration may not be sought from the Board's certification or dismissal.

(Emphasis added).

Section 18.0 clearly states "reconsideration may not be sought from the Board's certification . . . ." Further, in The Indiana Railroad, 25 NMB 68 (1997), the Board considered and rejected the carrier's arguments regarding changing the cut-off date, citing the Board's long-standing policy that it "does not change the cut-off date except in rare circumstances." Those "rare circumstances" include "a turnover of more than a majority of the eligible electorate," which was not established by the facts in this case. As the Board previously has dealt with this issue, the Board denies the carrier's request to reconsider.

IV.

Section 14.0 of the Board's Representation Manual provides in part:

Allegations of election interference must be received in writing at the Board's offices no later than 4:00 p.m. two (2) working days after the date of the count. Initial filings received beyond this deadline will not be considered timely absent extraordinary circumstances. Allegations of election interference must be accompanied by substantive evidence. The allegations and supporting evidence must present a prima facie case, otherwise the Chief of Staff will find an insufficient basis for further investigation absent extraordinary circumstances which justify an exception to this standard procedure. Absent extraordinary circumstances, the count will take place as scheduled and unless a prima facie case is established a certification or dismissal will be issued.

The ballot count in this matter was conducted on October 31, 1997. As no allegations of interference were received by 4:00 p.m. November 4, 1997, the Board issued the certification on November 5, 1997. The carrier's allegations of interference were not filed until November 11, and, therefore, were untimely; as there are no "extraordinary circumstances" present, the allegations are rejected on that basis.⁽¹⁾

CONCLUSION

As the record fails to establish either a basis for reconsideration or for further investigation, the carrier's objections to the Board's certification are denied.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

Mr. Charles Little

Clinton J. Miller, Esq.

Mr. Mathias Packer, Jr.

Mr. William Walpert

Harold Ross, Esq.

Mr. Thomas G. Hoback

Mr. C.V. Monin

1. Even if the allegations of interference had been received by the deadline, the arguments and evidence advanced by the carrier fail to establish a prima facie case.