28 NMB No. 41

January 10, 2001

Devki K. Virk, Esq.

Counsel for BLE

Bredhoff and Kaiser, PLLC

805 15th Street, NW., Suite 1000

Washington, DC 20005

Harold A. Ross, Esq.

Counsel for BLE

1548 Standard Building

1370 Ontario Street

Cleveland, OH 44113-1740

Mr. William C. Walpert, Vice President

Brotherhood of Locomotive Engineers

1370 Ontario Street

Cleveland, OH 44113-1701

Re:	NMB Case No. R-6799

Terminal Railroad Association of St. Louis

Gentlemen and Ms. Virk:

This determination addresses the Brotherhood of Locomotive Engineers' (BLE) January 3, 2001 request for a stay of the election ordered by the National Mediation Board (Board) in Terminal Railroad Association of St. Louis, 28 NMB 187 (2000). The United Transportation Union (UTU) filed a response to the BLE's request for a stay on January 4, 2001.* The Carrier takes no position.

For the reasons set forth below, the BLE's request to stay the election proceedings in this case is denied.

I.

In Terminal Railroad, above, the Board found that the proper craft or class is Train and Engine Service Employees. The UTU's application was converted to NMB Case No. R-6799 and an election was authorized. On December 22, 2000, the Board determined that ballots would be mailed to eligible voters on January 12, 2001 and the ballot count would take place on February 9, 2001.

The BLE requests that the Board stay all election proceedings in this matter pending a determination on the Motion for Reconsideration. The BLE argues that a stay is necessary because under the current election schedule, its "Motion for Reconsideration will not be fully submitted to the Board - let alone decided - until after the Board has set the election process in motion." In support of its request, the BLE cites Tower Air for the proposition that the Board may grant a stay when "unusual or complex issues are raised." 16 NMB 326 (1989). The BLE further argues that under the current schedule it will be compelled to expend significant resources to an election campaign and these expenditures would be unnecessary in the event the Board grants the Motion for Reconsideration. Finally, the BLE contends that granting a stay would not cause the Carrier or the UTU irreparable harm, but would "avoid the substantial risk of chaos and confusion that would be created were the election process to go forward" and the Board subsequently granted the BLE's motion.

The UTU opposes the BLE's request for a stay stating that it is a "tardy afterthought to its December 26, 2000 request for reconsideration." The UTU argues that the BLE provides no substantive basis for the request and does not present a case of irreparable harm. The UTU states that the BLE's Motion for Reconsideration lacks a likelihood of success on its merits because it is a reiteration of the arguments rejected by the majority in Terminal Railroad, above. Finally, the UTU contends that the Board is mandated to promptly resolve representation disputes.

II.

The Board has the exclusive discretionary authority to "establish the rules governing elections." Brotherhood of Ry. S.S. Clerks v. Ass'n for the Benefit of Non-Contract Employees, 380 U.S. 650, 668-69 (1995). It is the Board's "well-established practice to handle representation disputes as expeditiously as possible." Tower Air, 16 NMB 326, 327 (1989). Moreover,

[o]nce the National Mediation Board has authorized an election, in accordance with its statutory duty to investigate representation disputes under 45 U.S.C. §152, Ninth, that election will proceed unless the Board itself finds it necessary due to unusual or complex issues to delay, or unless barred by court order.

Id. at 328.

The BLE has not presented the Board with unusual or complex issues which necessitate halting or delaying the election proceedings in this case. The Board therefore denies the stay. Ballots will be mailed on January 12, 2001. The Board intends to rule on the BLE's Motion for Reconsideration prior to the scheduled ballot count on February 9, 2001.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copies to:

Mr. R.S. Finley

Ralph J. Moore, Jr., Esq.

Donald J. Munro, Esq.

James L. Linsey, Esq.

Clinton J. Miller, III, Esq.

Mr. J.R. Cumby