(202)523-5920

NATIONAL MEDIATION BOARD Washington, D.C. 20572

25 NMB No. 12

October 29, 1997

Michael H. Boldt, Esq.

Ice, Miller, Donadio & Ryan

One American Square, Box 82001

Indianapolis, IN 46282-0002

Re: NMB Case No. R-6514

The Indiana Rail Road Company

Dear Mr. Boldt:

This determination is in response to The Indiana Rail Road Company's Motion for Reconsideration dated September 3, 1997. The carrier seeks reconsideration of the Board's Order of a re-run election in 24 NMB 708 (1997), using the original cut-off date of April 30, 1997. According to the carrier, because six individuals were hired into the craft or class of Train and Engine Service Employees since April 30, 1997, these employees should be eligible to vote in the new election.

The Board provided the two organizations involved in this dispute, the Brotherhood of Locomotive Engineers (BLE), and the United Transportation Union (UTU), the opportunity to respond to the carrier's Motion. BLE filed a response on September 25, 1997 requesting that the carrier's Motion be denied. UTU did not file a response.

For the reasons set forth below, the carrier's Motion for Reconsideration is denied.

I.

On May 12, 1997, the UTU filed an application pursuant to the Railway Labor Act, 45 U.S.C. Section 152, Ninth, seeking to represent "Train and Engine Service Employees" of the Indiana Rail Road Company. BLE filed an application covering the same craft or class on May 21, 1997. The Board assigned Mediator John W. Schrage to the investigation. As the result of the investigation, the Board authorized an election using a cut-off date of April 30, 1997. The count took place on July 29, 1997. The results of the election were as follows:

Number of Employees Voting:

The count took place on July 29, 1997. On August 1, 1997, the Board issued a DISMISSAL based on the report of election results showing that less than a majority of eligible voters had cast valid ballots. 24 NMB 566.

On August 11, 1997, BLE filed a Motion for Reconsideration of the Board's "decision in R-6514," and requested a re-run election. In support of the Motion, the organization submitted "affidavits" from five employees who stated that they had returned their ballots in a timely manner. According to BLE, "one (1) employee has affirmatively stated that his ballot was returned by the Post Office due to the location of the returned postage fixture." The organization submitted statements from two additional employees on August 12, 1997.

Following the BLE's Motion, the Board conducted an investigation by reviewing the ballot return envelopes in its file. The investigation revealed that although the ballot return envelopes indicate that the Board has prepaid the postage, in fact, none of the ballot return envelopes contained postage. Further, four valid ballots were returned to the Board marked, "postage due," between July 31 and August 6, 1997. Further investigation revealed that all four of these ballots had been processed by the Postal Service on July 21 and July 22, 1997.

After receiving and considering the evidence and arguments submitted by the participants, the Board ordered a re-run election on September 18, 1997, specifying that the original cut-of date be used. The six individuals hired after April 30, 1997 were sent "challenged" ballots.

II.

A.

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

Motions for Reconsideration of Board decisions concerning jurisdiction, craft of 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.

The carrier argues that the policy behind the Board's cut-off date provision "to prevent a carrier from 'stacking the deck' . . . would not be ill-served by adding the individuals hired since April 30, 1997 . . . ." According to the carrier, these individuals were hired in May and July of 1997 when the initial election was pending.

BLE cites Section 3.5 of the Board's Representation Manual in support of its opposition to the carrier's Motion. The organization maintains that adding individuals hired after the cut-off date established when the election was initially authorized "would distort the process and would encourage railroads to subsequently hire additional employees . . . ."

B.

Section 3.5 of the Board's Representation Manual provides, in part:

The cut-off date for determining eligibility to vote is the last day 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. 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. 1979) aff'd, 659 F.2d 1057 (2d Cir. 1981).

III.

In the instant case, the 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 addition, the carrier has not demonstrated a "material error of law or fact", or an important public interest to justify the relief requested. Therefore, the carrier's Motion is denied. The six individuals hired after April 30, 1997 are not eligible. The count will take place, as scheduled, at 2:00 p.m., Friday, October 31, 1997.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copies to: Mr. William C. Walpert

Mr. Mathias W. Packer, Jr.

Mr. John Schrage

Mr. Charles Little

Clinton Miller, Esq.