25 NMB No. 86

May 18, 1998

Michael A. Pavlick, Esq.
Counsel for the Dakota, Minnesota and Eastern Railroad Company
Kirkpatrick & Lockhard, LLP
1500 Oliver Building
Pittsburgh, PA 15222-2312

Donald F. Griffin, Esq.
Assistant General Counsel
Brotherhood of Maintenance of Way Employes
10 G Street, N.E., Suite 460
Washington, DC 20002

Re: NMB Case No. R-6489

Dakota, Minnesota and Eastern Railroad Company

Gentlemen:

This responds to the appeal of the Dakota, Minnesota and Eastern Railroad Company (DMER) of several determinations made by Mediator Samuel J. Cognata. The Carrier has appealed the Mediator's decision not to change the cut-off date and the decision excluding individuals who are no longer working for the Carrier.

For the reasons set forth, the Carrier's appeal is denied.

I.

On February 7, 1997, the Brotherhood of Maintenance of Way Employes (BMWE) filed an application alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, 45 U.S.C. § 152, Ninth, among Maintenance of Way Employees of the DMER. The application was docketed as NMB Case No. R-6489. The Maintenance of Way Employees on the DMER are currently unrepresented.

On March 12, 1997, the Board found a dispute to exist among the Maintenance of Way Employees at DMER. An election was authorized to resolved the dispute. The ballots were mailed on April 3, 1997. The count was conducted on May 1, 1997.

On May 27, 1997, the Board found that a procedural error may have been outcome determinative and ordered a standard, re-run election. Dakota, Minnesota and Eastern Railroad Company, 24 NMB 281 (1997). The Board established a new mailing date of June 27 and set a new count date of July 27, 1997.

On June 13, 1997, and before the Board mailed the ballots in the re-run election, BMWE requested that the Board postpone the election and investigate allegations of election interference.

In response to BMWE's request, the Board postponed the election and conducted an investigation in the following months. On March 27, 1998, the Board found that the Carrier's actions did not taint the laboratory conditions. Dakota, Minnesota and Eastern Railroad Company, 25 NMB 302, 315 (1998). The Mediator was directed to conduct the re-run election previously ordered by the Board as soon as possible.

Ballots were mailed on April 10, 1998. The count is scheduled for May 18, 1998.

II.

The BMWE, in a letter dated April 6, 1998, contended that five individuals (K.D. Boese, Jeffrey J. Danberg, W.J. Ganier, Joel Irwin and Michael P. Lee) should be removed from the eligibility list because they were either no longer employed by the Carrier or transferred out of the craft or class. In a letter, dated April 13, 1998, the Carrier confirmed that Boese, Ganier, Irwin and Lee were no longer employed by the Carrier. Danberg, according to the Carrier, had transferred out of the craft or class. In the same letter, the Carrier contended that five newly hired individuals (Brian Shifflet, Jeff Sundet, Brian Lynn, Tony Neyhart and Don Jacobs) should be added to the list and requested the Mediator to change the cut-off date allowing the newly hired individuals to vote.

Mediator Cognata, on April 16, 1998, ruled that the five individuals no longer employed by the Carrier or transferred out of the craft or class were ineligible. The Mediator also declined to change the cut-off date and ruled that the five individuals hired after the cut-off date were ineligible. The deadline for appeals was April 24, 1998.

The Carrier, on April 24, 1998, appealed the Mediator's decision not to change the cut-off date. The Carrier also appealed the Mediator's decision to exclude the five individuals who either no longer work for the Carrier or transferred out of the craft or class.

BMWE, on April 24, 1998, filed a motion for reconsideration of the Mediator's decision "that five newly hired employees are ineligible to vote in the pending re-run election." The Organization stated that the motion was submitted pursuant to Section 18 of the Board's Representation Manual.⁽¹⁾ On May 1, 1998, the BMWE submitted a response to the Carrier's appeal.

III.

The Carrier contends that the Board should change the cut-off date to an unspecified "later date." The Carrier asserts that the Board's "general rule" against changing the cut-off date in re-run elections is inapplicable because the Board did not find any misconduct by the Carrier. It is the Carrier's position that the delay in the investigation was caused by the BMWE's request for an investigation of election interference allegations. In the alternative, the Carrier argues that if the cut-off date is not changed, then those individuals who have either left the Carrier or the craft or class should be eligible.

IV.

Mediator Cognata declined to change the cut-off date for the purpose of determining eligibility.

Section 3.5 of the Board's Representation Manual provides, in part: "[t]he cut-off date for determining eligibility to vote is the last pay of the last payroll period ending prior to the date of receipt at the NMB's offices of the 'Application for Investigation of Representation Dispute.'"

The Board does not change the cut-off date except in rare circumstances. Arkansas & Missouri Railroad, 25 NMB 92 (1997); The Indiana Rail Road Company, 25 NMB 68 (1997); Wisconsin Central Ltd./Fox Valley & Western Ltd., 24 NMB 64 (1996); America West Airlines, Inc., 21 NMB 293 (1994). In America West, the Board declined to change the cut-off date despite a lapse of almost six years between the original date and the re-run election. Similarly, the Board did not change the cut-off date in USAir, Inc., 16 NMB 63 (1988), British Airways, Inc., 7 NMB 457 (1980), and Air Canada, 7 NMB 71 (1979). The Board's decisions in the latter two cases were upheld by the courts. British Airways v. NMB, 533 F. Supp. 150 (E.D.N.Y.), aff'd, 685 F.2d 52 (2d Cir. 1982); Air Canada v. NMB, 478 F. Supp. 615 (S.D.N.Y.), aff'd, 659 F.2d 1057 (2d Cir. 1981).

In the present case, the Mediator's ruling was in accordance with Board policies and procedures. The present record fails to establish a sufficient basis for changing the cut-off date. There has not been a turnover of more than a majority of the eligible electorate in this case. The Board, therefore, upholds the Mediator's decision.

V.

The Mediator ruled that four individuals (Boese, Ganier, Irwin and Lee) were ineligible because they no longer work for the Carrier. These employees are not working for the DMER. They no longer have an employee-employer relationship.

Mediator Cognata also ruled that Danberg was ineligible because he had transferred out of the craft or class. Section 5.303 of the Board's Representation Manual states:

Absent unusual circumstances, employees who are working regularly in the craft or class at issue on and after the cut-off date are eligible to participate in the craft or class. Employees who leave the craft or class prior to the ballot count are not eligible. However, it is the Board's policy not to permit an employee to vote in more than one craft or class at the same time.

The Mediator's rulings were in accordance with Board policies and procedures. Therefore, the Board upholds the Mediator's eligibility determinations.

VI.

For the reasons stated above, the Board upholds the Mediator's decision not to change the cut-off date. The Board also upholds the Mediator's ruling that Boese, Ganier, Irwin, Lee and Danberg are ineligible.

The count will take place on May 18, 1998, as scheduled.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

1. Section 18 of the Manual covers decisions by the Board and not mediator decisions which are appealed pursuant to Section 4.6 of the Manual. In view of these Manual provisions, BMWE's procedural motion is dismissed. In substance, however, the Board will rule on the issue raised by BMWE since the DMER filed a timely appeal of the cut-off date ruling. The Board's decision will be dispositive of the question of the eligibility of the newly hired employees mentioned in the BMWE's motion.