29 NMB No. 4

October 15, 2001

Mr. Eric B. Lee

Chief Executive Officer

Meridian Southern Rwy., LLC

415 Woodland Road

Syracuse, NY 13219

Jo A. DeRoche, Esq.

Troy W. Garris, Esq.

Weiner Brodsky Sidman Kider P.C.

1300 19th St., NW., 5th Floor

Washington, DC 20036

Mr. William C. Walpert

General Secretary-Treasurer

Brotherhood of Locomotive Engineers

1370 Ontario Street

Standard Bldg Mezzanine

Cleveland, OH 44113-1702

Harold A. Ross, Esq.

Brotherhood of Locomotive Engineers

1370 Ontario Street

1548 Standard Building

Cleveland, OH 44113

Mr. Thomas E. Miller

Special Representative

Brotherhood of Locomotive Engineers

P.O. Box 1687

Dunlap, TN 37327

Re:	NMB Case No. R-6835

Meridian Southern Railway/BLE

Gentlemen and Ms. DeRoche:

This determination addresses the appeal filed by Meridian Southern Railway (Carrier) of Investigator Eileen M. Hennessey's October 5, 2001, eligibility ruling concerning William Thad Roberts.

I.

On August 10, 2001, the Brotherhood of Locomotive Engineers (Organization or BLE) filed an application to represent Train and Engine Service Employees on the Carrier. On August 14, 2001, the Carrier supplied the Board with a List of Potential Eligible Voters. The Board authorized an election on August 22, 2001. On August 23, 2001, the Board notified the participants that challenges and objections were due September 5, 2001, and responses to the challenges and objections were due on September 12, 2001.

On September 4, 2001, the BLE challenged the exclusion of Roberts from the List of Potential Eligible Voters. According to the BLE, Roberts was discharged but had filed an action for reinstatement before a court of competent jurisdiction and the court action had not been finally acted upon. The BLE asserted that Roberts should be added to the list pursuant to the Board's Representation Manual (Manual) Section 5.304. The BLE submitted a copy of a Complaint filed on Roberts' behalf in the United States District Court for the Southern District of Mississippi, Eastern Division, on September 4, 2001.

Roberts was sent a challenged ballot on September 12, 2001.

On September 12, 2001, the Carrier responded to the BLE's challenge. The Carrier stated that Roberts was properly omitted from the List of Potential Eligible Voters because he was discharged months prior to the authorization of an election. The Carrier further stated that by the challenges deadline date, no court had jurisdiction over any discharge action against the Carrier, "as the Carrier had not been served with process." Moreover, the Carrier asserted that the BLE's challenge was a "clear misuse of the agencies rules and regulations" and was "bad public policy, as it encourages frivolous litigation, and substantially dilutes the weight of the votes of current employees." Finally, the Carrier argued that the BLE failed to show that Roberts had a reasonable expectation of returning to work pursuant to Manual Sections 5.302 and 5.305.

The Carrier and the BLE provided additional information and argument on September 13, 14, 17, and 19, 2001. In supplemental filings, the Carrier asserted that it was served with process on September 10, 2001, after the deadline for challenges.

In her eligibility ruling on October 5, 2001, Investigator Hennessey ruled that Roberts was eligible pursuant to 29 C.F.R. § 1206.6 because he had appealed his discharge to a court of competent jurisdiction and no final resolution of that matter had been reached. On October 9, 2001, the Carrier appealed the Investigator's ruling. The BLE responded to the appeal on October 11, 2001.

II.

A.

The Carrier's appeal of the Investigator's ruling states that since service of the complaint was not perfected prior to the challenge deadline set by the Investigator, no court had jurisdiction over any purported discharge action against the Carrier. The Carrier also reiterates that Roberts' eligibility dilutes the voting list and should be void for public policy reasons. Additionally, the Carrier restates that Roberts has no reasonable expectation of returning to work and should be declared ineligible on that basis. The Carrier argues that the Investigator's ruling "failed to explain why the Board would ignore its own rules and precedent in this case." In support of this, the Carrier cites several personal jurisdiction cases: Hanson v. Denkla, 357 U.S. 235, 249-50 (1958); Central Laborers' Pension Welfare and Annuity Funds v. Griffe, 198 F.3d 642, 644 (7th Cir. 1999); Rogers v. Hartford Life & Accident Ins. Co., 167 F.3d 933, 940 (5th Cir, 1999); Mansour v. Charmax Industries, Inc., 680 So. 2d 852, 854 (Miss. 1996). The Carrier cited no Board precedent but referred to 29 C.F.R. § 1206.6 and Manual Sections 5.302, 5.304 and 5.305.

B.

The BLE responded that the Investigator's ruling should be upheld. The Organization asserts that the Carrier's appeal was a "rehash of what it argued to the investigator." BLE argues that Roberts has a challenge to his discharge currently pending in Federal court, which was filed on September 4, 2001, and that the Carrier has been properly served in this case. BLE provided the Board with the Answer filed by the Carrier to Roberts' Complaint dated September 26, 2001. The BLE argues that the Carrier "does not contest the adequacy of service of process or otherwise contend that the court lacks jurisdiction to entertain the challenge to Roberts' discharge." Therefore, the BLE asserts, the Carrier's argument "regarding the incompetency of the federal court is belied by its own Answer in that court."

III.

A.

45 U.S.C. § 152, Ninth, provides, in part, as follows:

[I]n the conduct of any election for the purposes herein indicated the Board shall designate who may participate in the election and establish the rules to govern the election . . . .

The election "rules" established by the Board are set forth in 29 C.F.R. §§ 1206.1 through 1206.8, the Representation Manual, and Board Determinations. Section 1206.6 of the Board's Rules provides:

Dismissed employees whose requests for reinstatement account of wrongful dismissal are pending before proper authorities, which includes the National Railroad Adjustment Board or other appropriate adjustment board, are eligible to participate in elections among the craft or class of employees in which they are employed at time of dismissal. This does not include dismissed employees whose guilt has been determined, and who are seeking reinstatement on a leniency basis.

Section 1206.7 provides:

The Rules and regulations in this part shall be liberally construed to effectuate the purposes and provisions of the Act.

Manual Section 5.304 states:

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).

B.

The Board has consistently applied the above provisions to hold that terminated employees are eligible if their claims for reinstatement are still pending as of the scheduled date of the count. Virgin Atlantic Airways, Ltd. v. National Mediation Bd., 956 F.2d 1245 (2d Cir.1992), cert. denied, 506 U.S. 820 (1992); Air Canada v. National Mediation Board, 478 F. Supp. 615 (S.D.N.Y. 1979); America West Airlines, 23 NMB 174 (1996); Emery Air Charter , 18 NMB 387 (1994); Virgin Atlantic Airways, 15 NMB 179 (1988).

The Carrier's appeal maintains that in order for an action to be valid under 29 C.F.R. § 1206.6, it must be filed and properly served prior to the deadline set by the Investigator for challenges and objections. There is no support for this interpretation of the rule.

The cases cited by the Carrier apply the Federal Rules of Civil Procedure and Mississippi State Rules of Procedure, not the Railway Labor Act and, therefore, are not be dispositive in overturning decades of Board precedent interpreting its own rules.

CONCLUSION

The record establishes that there is no basis for the Board to overrule the Investigator's ruling that Roberts is eligible. Therefore, the Carrier's appeal is denied. The count will take place as scheduled at 2:00 p.m., October 15, 2001.

By direction of NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff