25 NMB No. 21

December 3, 1997

Jeffrey Berlin, Esq.

Sidley & Austin

1722 Eye Street, N.W.

Washington, DC 20006

Michael Wolly, Esq.

Zwerdling, Paul, Leibig, Kahn,

Thompson & Wolly, P.C.

1025 Connecticut Avenue, N.W.

Washington, DC 20036-5405

Re: NMB Case No. R-6462, R-6463, R-6464

Arkansas & Missouri Railroad/BLE

Gentlemen:

This responds to the appeal of the Arkansas and Missouri Railroad Company (AMRC) of several eligibility determinations made by Board Representative Eileen Hennessey. The Carrier has appealed the Board Representative's decision not to change the cut-off date and the determinations ruling William Cottrell and James Kennedy eligible voters.

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

I.

On August 27, 1996, the Brotherhood of Locomotive Engineers (BLE) filed applications alleging representation disputes involving 1) Engineers 2) Trainmen and 3) Mechanics, employees of the AMRC. These applications were assigned NMB Case Nos. R-6462 to R-6464, respectively.

On October 1, 1996, the Board found disputes to exist in each case and authorized elections using a cut-off date of August 24, 1996. The counts took place on November 19, 1996. On November 21, 1996, the BLE filed allegations of election interference. In Arkansas and Missouri Railroad Company, 25 NMB 36 (1997), the Board, on October 17, 1997, found that the laboratory conditions required for fair elections had been tainted and ordered re-run elections utilizing the ballot procedures in Key Airlines, 16 NMB 296 (1989). Ballots were mailed on October 29, 1997, and the counts are scheduled for December 3, 1997.

On October 22, 1997, AMRC requested that the Board Representative change the cut-off date to October 17, 1997, which is the last day of the last payroll period ending prior to the date of the Board's decision ordering re-run elections, to include employees hired since the cut-off date. The Carrier also informed the Board Representative that Cottrell and Kennedy were no longer eligible Mechanics (R-6464) because they quit their jobs.

Pursuant to the Board Representative's request, BLE responded to the Carrier's letter. The BLE objected to a change in the cut-off date. The BLE stated that Cottrell and Kennedy were eligible because they have filed law suits seeking their reinstatement.

Board Representative Hennessey, on November 17, 1997, denied the Carrier's request to change the cut- off date. She also ruled Cottrell and Kennedy eligible voters based on Section 5.304 of the Board's Representation Manual. On November 21, 1997, AMRC appealed these rulings. The same day, BLE submitted a written response requesting that the Board reject the Carrier's appeal.

II.

Board Representative Hennessey ruled William Cottrell and James Kennedy eligible voters. Review of the record reveals that Cottrell and Kennedy have law suits pending in which they claim that they were wrongfully terminated and have requested reinstatement.

Section 5.304 of the Board's Representative Manual states that:

Ordinarily, discharged or terminated employees shall be ineligible unless the discharge is being appealed through the applicable grievance procedure or an action for reinstatement has been filed before either a court or a government agency of competent jurisdiction. An individual shall not be considered eligible if the grievance or court action has been finally acted upon and the discharge has been upheld prior to the count of ballots (See NMB Rules, Part 1206.6).

In as much as Cottrell and Kennedy have pending law suits requesting reinstatement, Board Representative Hennessey's ruling was in accordance with Board policies and procedures. The Board upholds the eligibility determinations.

III.

AMRC contends that the cut-off date should be changed to October 17, 1997.

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

The 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. 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 Board Representative'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 that a majority of the eligible electorate in each case. The Board upholds the Board Representative's decision.

IV.

For the reasons stated above, Cottrell and Kennedy are eligible voters. The Board Representative's decision not to change the cut-off date is upheld.

The counts will take place on December 3, 1997, as scheduled.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

SEC/rwa