28 NMB No. 71

May 9, 2001

NOTICE

TO:	All Carriers and Labor Organizations

FROM:	Stephen E. Crable

Chief of Staff

SUBJECT:	Changes to the National Mediation Board's

Representation Manual – Mergers

On December 8, 2000, the National Mediation Board (Board) issued a Notice to all carriers, labor organizations and other interested parties proposing changes in the Board's Representation Manual (Manual). Attached is a new Section 19 and a revision to Section 6.601 of the Manual. These changes are issued after careful consideration of the comments received in response to the Board's December 8, 2000, Notice.

The Manual changes apply to mergers and are added to clarify procedural questions arising since the United States Court of Appeals for the District of Columbia's decision in Railway Labor Executives' Assoc. v. NMB, 29 F.3d 655 (D.C. Cir.), amended, 38 F.3d 1224 (1994), cert. denied, 514 U.S. 1032 (1995). These changes take effect June 1, 2001.

- Attachments -

6.601	Percentage of Authorizations Required

If the craft or class involved in the investigation is represented for Railway Labor Act purposes and is covered by a valid existing contract between any such representative and the Carrier, the application must be supported by a majority (more than 50 percent) of valid authorizations from individuals in the craft or class. In all other circumstances, an application must be supported by at least thirty-five (35) percent of valid authorizations from individuals in the craft or class. The percentage of authorizations required in a merger is governed by Section 19, Merger Procedures.

19.0	MERGER PROCEDURES

19.1	Authority

Pursuant to Section 2, Ninth, of the Railway Labor Act (See Section 10.1), the Board, upon an Application, has the authority to resolve representation disputes arising from a merger involving a Carrier or Carriers covered by the Act. The Board will consider these representation issues on a case-by-case basis.

19.2	Definitions

Application refers to Form NMB-3, "Application for Investigation of Representation Dispute." (See Section 1.0.)

Carrier is defined at 45 U.S.C. §§ 151 and 181.

Organization is defined at 45 U.S.C. § 151, Sixth, and 45 U.S.C. § 152, Ninth.

Merger is a consolidation, merger, purchase, lease, operating contract, acquisition of control, or similar transaction of two or more business entities.

19.3	Notice to Board

A Carrier should notify the Board, in writing, of:

1) An intent to merge, at the same time it files with the Surface Transportation Board (STB) or the Department of Transportation (DOT); AND

2) A completed merger including the date of the merger and the Carriers (or business entities) involved.

Notices must comply with the service requirements of Manual Section 1.302.

19.4	Initiation of Procedure for Determination of a Single Transportation System

Any organization or individual may file an application, supported by evidence of representation, seeking a Board determination that a single transportation system exists.

19.401	If the organization or individual filing the application represents any of the employees covered by the application, the organization or individual must submit evidence of representation including, but not limited to, a seniority list, dues check-off list, a current collective bargaining agreement or a certification, or other indicia of current representation.

19.402	If the organization or individual filing the application does not represent any of the employees covered by the application, but the employees are represented, the organization or individual must submit authorization cards from a majority (more than 50 percent) of the employees in the craft or class. (See Section 6.601.)

19.403	If the organization or individual filing the application does not represent any of the employees covered by the application and the employees are unrepresented, pursuant to 29 C.F.R. § 1206.2(b), the organization or individual filing the application must submit authorization cards from at least thirty-five (35) percent of the employees in the craft or class.

19.5	Merger Investigations

After an application is filed, the Board will conduct a pre-docket investigation to determine whether a single transportation system exists. The investigation may take any form appropriate to the determination.

19.501	Factors Indicating a Single Transportation System

The following are some indicia of a single transportation system: (1) published combined schedules or combined routes; (2) standardized uniforms; (3) common marketing, markings or insignia; (4) integrated essential operations such as scheduling or dispatching; (5) centralized labor and personnel operations; (6) combined or common management, corporate officers, and board of directors; (7) combined workforce; and (8) common or overlapping ownership.

19.6	Procedure After Finding Single Transportation System

If the Board determines that a single transportation system exists, the investigation will proceed to address the representation of the proper craft or class. (See Section 19.401.) The bar rules in 29 C.F.R. § 1206.4 do not apply to applications filed under Section 19.

19.601	Showing of Interest on the Single Transpor-
tation System

Incumbent organizations have thirty (30) days from the date of the Board's single transportation system determination to file an application supported by at least a thirty-five (35) percent showing of interest or to supplement the showing of interest.

19.602	Status of Representation Certifications

Existing certifications remain in effect until the Board issues a new certification or dismissal.