25 NMB No. 42

CASE NO. R-6582
(File No. MT-24)

DISMISSAL

January 23,1998

On May, 20, 1991, Consolidated Rail Corporation (Conrail), 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). Conrail informed the Board of its then impending merger with the Monongahela Railway Company (MGA). Conrail sought a determination that would "remove the fragmentation of collective bargaining units, which would otherwise obtain as a result of Conrail's [then] impending merger with the [MGA]", and would "permit Conrail to bargain with a single representative of each craft or class on its property." The Board conducted an investigation which included participation by all of the affected labor organizations.1

In cases commenced under the Railroad Merger Procedures, the Board typically determined whether two 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.

On October 27, 1992, the Board found that Conrail and MGA constituted a single transportation system and ordered the participants to show cause why the Board "should not designate and authorize BMWE as the representative of the crafts or classes of Plumbers and Maintenance of Way Machinists on the merged Conrail system." Consolidated Rail Corporation/Monogahela Railway Company, 20 NMB 56 (1992). Conrail and the involved organizations filed responses. Subsequently, the final resolution of 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 Conrail invoked the Railroad Merger Procedures which led to the commencement of this investigation, this matter must be dismissed. The Board's October 27, 1992 determination and Order to Show Cause is hereby revoked. The Board's File Number MT-24 is converted to R-6582 and is hereby dismissed.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff