| This Manual provides general procedural guidance to the National Mediation Board's staff with respect to the processing of representation cases before the NMB. Such procedural guidance is not required by or subject to the Administrative Procedure Act. The provisions of this Manual are neither obligatory upon the Members of the Board nor do they constitute the exclusive procedure for the NMB's investigation of representation matters pursuant to the Railway Labor Act. |
Stephen E. Crable Chief of Staff |
| SECTION | TITLE |
| 1.0 1.1* 1.2* 1.3* 2.0 2.1 2.2 2.3 2.4* 3.0 3.1 3.2 3.3 3.4* 3.5* 3.6 3.7 4.0 4.1 4.2* 4.3* 4.4 4.5 4.6 4.601 4.602* 5.0 5.1 5.2 5.3 5.301 5.302 5.303 5.304 5.305 5.306 5.307 5.308 5.309 5.310 5.311 5.312 5.313* 6.0 6.1 6.2 6.3 6.4 6.5 6.6* 6.601 6.7 7.0 7.1* 7.2 8.0 9.0 10.0 10.1 10.2 10.3 10.4* 11.0 11.1 11.2 11.3 12.0 12.1 12.101 12.101-1* 12.101-2* 12.102 12.102-1 12.102-2* 12.102-3 12.102-4 12.103* 12.104 12.2 12.201* 12.202 12.203* 12.204 12.205* 12.206 12.206-1* 12.206-2 12.3 12.301 12.302 12.302-1* 12.302-2 12.302-3 12.303 12.303-1* 12.303-2* 12.303-3* 12.4 12.401* 12.401-1 12.401-2 12.401-3 12.402* 12.402-1 12.402-2 12.402-3 12.402-4 12.403 12.403-1 13.0* 13.1 14.0* 15.0 16.0* 17.0* 18.0 18.1 |
INITIAL FILING AND NMB
PROCESSING Ex Parte Communications Communication Guidelines Generally Notice of Appearance and Service Requirement NMB'S INVESTIGATIO Investigator's Objective Review and Maintenance of Loan File Investigator Reporting Timeliness of Investigation COMMENCING THE INVESTIGATION Access to Books and Records Preliminary Information Additional Information Statutory Jurisdiction Cut-Off Date List of Potential Eligible Voters Forms Used to Check Validity of Authorizations FILING AND CONTENT OF CHALLENGES AND OBJECTIONS DURING THE INVESTIGATION Challenges or Objections Timeliness Rejection of Challenges or Objections Investigator's Decision on Challenges and Objections Finality of Investigator's Decision Appeals of Investigator's Decisions Submissions on Appeal Extensions of Deadlines for Appeals DETERMINATIONS Craft or Class Classifications Eligibility of Individuals Part-Time Employees Temporary Employees Working Regularly in the Craft or Class Discharged Employees Furloughed Employees Leave of Absence Probationary Employees Working For Another Carrier Contractor's Employees Individuals Based in Foreign Countries Retired Employees Management Officials Preponderance EVIDENCE OF DISPUTE - AUTHORIZATIONS Form and Content of Authorizations Age of Authorizations Acceptance of Additional Authorizations Cancellation or Revocation of Authorizations Confidentiality of Authorizations Check of Alphabetized Authorizations Percentage of Authorizations Required Resolving Discrepancies in Authorizations (Potential List of Eligible Voters) REPORT RE CHECK OF AUTHORIZATIONS Contents of Reports Confidentiality of Report FINDING OF DISPUTE-AUTHORIZATION TO PROCEED BY NMB DISPOSITION OF DISPUTE BY VOLUNTARY RECOGNITION DISPOSITION OF DISPUTES BY NMB Statutory Authorization Elections Certification on the Basis of Check of Authorizations "Other Appropriate Methods" PREPARATIONS FOLLOWING AUTHORIZATION OF ELECTION Designation of the Official Eligibility List Address List Changes in Employee Status ELECTIONS Preparation of Documents The Notice and Rules of Election Contents of Notice Posting of Notice The Ballot Places on the Ballot Name on Ballot Seal of NMB Color of Ballots Location and Time of Count Foreign Language Notice of Election, Ballots and Instructions Mail Ballot Elections Schedule for Voting Ballot Sets Key Numbering Handling of Ballot Materials Challenged Ballots Procedures Regarding Duplicates and Undeliverables Duplicate Ballots Undeliverable Ballots The Ballot Count Requests to Postpone the Ballot Count Initial Preparations for Count of Ballots Obtaining Ballot Envelopes From NMB Office Adjustments to the Official Eligibility List Report of Election Results Commencing the Count Authority to Count Investigator's Control of Election Proceedings Handling of Returned Mail Ballots Ballot Determinations - Invalid, Void or Valid Invalid Ballot Return Envelopes Incomplete Returned Mail Ballot Envelope Challenged Ballot Envelopes Original and Duplicate Ballot Envelopes Both Returned Void Ballots Ballot Cast For Carrier or Carrier Official Marks In More Than One Square Ballot Marked "No," "No Union," or Unmarked Ballot Disclosing the Voter's Identity Valid Ballots Write-In Ballots TABULATION AND REPORT OF ELECTION RESULTS Submission of Report of Election Results ALLEGATIONS OF ELECTION INTERFERENCE INVESTIGATOR'S FINAL REPORT RUN-OFF ELECTIONS MOTIONS FOR RECONSIDERATION BARS TO REPRESENTATION APPLICATIONS Applicable Board Rules |
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| 1.0 INITIAL FILING AND NMB PROCESSING |
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1.01 A labor organization or individual employee may request the NMB to investigate an alleged representation dispute by filing Form NMB-3, "Application for Investigation of Representation Dispute." The application must be signed by the chief executive of the invoking party or designee; specify the craft or class of employees; state the estimated number of employees and whether there is an incumbent representative; as well as otherwise comply with the NMB's regulations (29 C.F.R. Part 1203). Only original applications, submitted to the NMB's office in Washington, D.C., accompanied by original authorizations will be docketed. Neither applications nor authorizations will be accepted by facsimile or electronic mail. |
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1.02 It is essential to comply with the timeliness and other requirements relating to authorizations specified in Section 6.0 of this Manual and 29 C.F.R. Part 1206. In addition, there are certain time bars which are applicable to the filing of subsequent applications covering the same craft or class of employees (see Section 17.0 and 29 C.F.R. § 1206.4). |
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1.03 The application of an intervenor, or any other application covering the same employees, is subject to the identical deadlines for submitting authorizations and other NMB requirements as the original application (see Section 6.3). |
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1.04 Upon receipt of a proper application (Form NMB-3), an appropriate identification number will be assigned and any necessary preliminary correspondence will be initiated. |
| 1.1 Ex Parte Communications |
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1.101 Certain ex parte communications to the NMB in connection with pending representation matters are prohibited by this Section. The specific scope of these prohibitions is defined and specified in Subsections 1.102 through 1.104. |
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1.102 An "ex parte communication" is an oral communication to the NMB in which all participants in the particular representation matter are not present at the time it is made, or it is a written communication to the NMB not served simultaneously on all participants in that proceeding. |
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1.103 A "representation matter" is any proceeding filed with the NMB pursuant to Section 2, Ninth, of the Railway Labor Act. A representation matter ceases to be "pending" for purposes of Section 1.1 when final agency action has been taken and the time period for filing a motion for reconsideration under Section 18.0 has expired. |
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1.104 No ex parte communications subject to this Section may be conducted with the Members of the Board or their Confidential Assistants. No ex parte communications subject to this Section involving substantive matters may be conducted with the Case Manager assigned to the particular case or proceeding which is the proposed topic of the communications. However, ex parte communications are permitted with the Investigator who is assigned to the case (see Section 1.203). |
| 1.2 Communication Guidelines Generally |
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1.201 General information on representation matters not pending with the NMB is available to the public through sources established by the Chief of Staff's Office. |
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1.202 Generally, documents may be filed with the NMB by delivery, mail or facsimile (applications and supporting authorizations require original documents). The NMB has established a dedicated facsimile line to provide enhanced customer service for representation matters [(202) 692-5085]. However, it is the responsibility of the submitter to complete the required submissions on a timely basis and with fully legible documents. Failure to complete timely service due to errors of a delivery company or difficulties with facsimile transmissions will not excuse untimely, partial or illegible submissions. In addition, documents in excess of thirty (30) pages will not be accepted by facsimile. The NMB will not accept documents by electronic mail. |
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1.203 Unless otherwise specified in this Manual, the Chief of Staff's Office is the contact point for representation matters filed with the Board. The Chief of Staff typically will designate a specific NMB Investigator as the point of contact in each case. Consistent with case-handling procedures authorized by the Chief of Staff, the Investigator may designate another NMB employee to perform certain tasks on a basis that is not inconsistent with Section 1.1. In addition, a Case Manager will be assigned to coordinate each case, and processing assistance will be provided by a Representation Coordinator. |
| 1.3 Notice of Appearance and Service Requirements |
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1.301 Within five (5) business days of the date of the NMB's Docketing Letter, the representatives of the participants must file a Notice of Appearance with the NMB, including name, title, address, telephone and FAX number(s). Notices of Appearance will be accepted from no more than three (3) individuals representing the same participant. Individuals not listed on a properly filed Notice of Appearance will not receive documents relating to the case from the NMB or other participants. |
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1.302 Copies of Notices of Appearance and all other submissions to the NMB, except privileged documents, shall be simultaneously served on all other representatives by the same method as used for service on the NMB, if available, or if unavailable, by a substantially similar method which results in an effectively identical time of receipt. All submissions must be accompanied by a signed certificate of service. Submissions not in compliance with the foregoing simultaneous service provisions will not be considered except in extraordinary circumstances. |
| 2.0 NMB's INVESTIGATION |
| 2.1 Investigator's Objective |
| During the processing of a representation case, the Investigator's function is to investigate any question concerning representation in accordance with the instructions of this manual and such directives as the Board may issue. The carrier is not a party to a representation dispute and has no right to participate as a party in the investigation of such a dispute. However, the carrier is a participant and has obligations under the Act to provide information and documentation to the Board. It is necessary that the investigation be conducted with extreme impartiality, thoroughness, and accuracy. Detailed reporting is normally required in all cases. |
| 2.2 Review and Maintenance of Loan File |
| A loan file will be provided to the Investigator when a representation case is assigned for investigation. This file should be thoroughly reviewed by the Investigator before the initial contact with the participants. If the file indicates potential craft or class and/or eligibility issues, the Investigator should reexamine previous relevant NMB cases. |
| During the investigation, the loan file must be kept current, and all investigative materials gathered must be placed in this file. |
| 2.3 Investigator Reporting |
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| The Investigator must communicate reports on a basis current enough that the Board will be sufficiently and timely apprised of all relevant information, such as Official Eligibility List, challenges or objections, Investigator decisions including rationale, appeal deadlines, and any unusual developments. |
| 2.4 Timeliness of Investigation |
| The prompt resolution of representation disputes is an important statutory objective. Accordingly, it is essential for the participants in a representation case before the Board to comply with the time limits established for processing the case. The participants should anticipate that the investigation will proceed on a timely basis and should be prepared to work within the established deadlines. |
| 3.0 COMMENCING THE INVESTIGATION |
| Investigations may be conducted on-site or off-site, or both. When an on-site investigation is conducted, separate or joint meetings may be held at the Investigator's discretion. |
| 3.1 Access to Books and Records |
| The NMB has a right by statute to have access to, and the power to make copies of, the books and records of carriers. The Investigator should always be aware of this right and in appropriate cases should advise carriers of this right and the Investigator's intention of using it, if necessary. |
| 3.2 Preliminary Information |
| The Investigator should describe the procedures in processing a representation application to the participants, and the Investigator should also describe the scope of the application. The Investigator should determine whether the participants intend to raise any relevant issues concerning the application. All such issues should be reduced to writing by the participants and submitted within a time limit established by the Investigator. |
| 3.3 Additional Information |
| The Investigator should, on a confidential basis, determine from the applicant and intervenor, if any, whether there are additional authorizations to be submitted. |
| 3.4 Statutory Jurisdiction |
| Objections to statutory jurisdiction should be raised at the earliest possible stage of the investigation. If an issue is presented as to whether or not the company involved falls within the definition of a "carrier," the Investigator should investigate that issue. The Investigator should determine, and require supporting documents which show: (1) whether the company reports to or is regulated by the Surface Transportation Board or the Department of Transportation and/or the Federal Aviation Administration; (2) the extent of the company's involvement in interstate as opposed to intrastate commerce; (3) whether the company engages in private as opposed to common carriage; (4) if it is a subsidiary involved in either rail or air transportation, the organizational and operational relationships between the subsidiary and the parent company; (5) whether, if an airline, U.S. mail is carried; (6) whether, if an airline, it engages in scheduled air transportation; (7) whether, if an airline, it interlines with a carrier covered by the RLA; (8) whether, if an airline, it provides substitute air service for a carrier covered by the RLA; (9) whether it holds a contract with a carrier covered by the RLA for the performance of services relating to air transportation; and (10) any other relevant facts regarding the company's operations. A determination of a statutory jurisdiction issue can only be made by the Board. |
| 3.5 Cut-Off Date |
| The cut-off date for determining eligibility to vote is the last day 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" (Form NMB-3). This single cut-off date is applicable regardless of whether there are multiple payroll periods for the craft or class. |
| 3.6 List of Potential Eligible Voters |
| The carrier will be requested to prepare a system-wide alphabetized list of potential eligible voters. The carrier must provide three (3) copies to the Investigator at the NMB's office and serve a copy on each representative of the other participants. The Investigator will only accept a list of potential eligible voters which includes all individuals within the craft or class with an employee-employer relationship as of the cut-off date. |
| The list of potential eligible voters must identify each employee by full name, job classification or title, duty station or location and employer identification number. If no employee identification numbers exist, the list must include social security numbers. |
| 3.7 Forms Used to Check Validity of Authorizations |
| Signature Samples: The carrier will be requested to provide forms or legible copies thereof, bearing the employees' signatures which may be used in verifying the authenticity of the authorizations. |
| The tax-withholding form may be preferred due to its ready accessibility and because it frequently bears the employee's most current signature on file with the carrier. Employment and insurance applications are examples of other acceptable forms. |
| The signature samples must be in the same order as the names on the list of potential eligible voters. |
| Delivery of Documents: The list of potential eligible voters and the signature samples should be delivered to the NMB's offices by the deadline set by the Board. If there is an on-site investigation, the list and signature samples should be submitted to the Investigator upon arrival on the carrier's property. |
| 4.0FILING AND CONTENT OF CHALLENGES AND OBJECTIONS DURING THE INVESTIGATION |
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| The Investigator should inform the participants in writing that they may raise challenges or objections during the investigation. A challenge is defined as a question regarding the eligibility of an individual or individuals, other than status changes. Status changes are governed by Section 11.3. Any issue not dealing with eligibility is an objection. Objections dealing with jurisdiction and carrier interference can only be decided by the Board and should be referred to the Chief of Staff. |
| 4.1 Challenges or Objections |
| All challenges or objections must be filed in writing, initially with the Investigator at the NMB's office (original and two copies). The Investigator should require that all challenges or objections be supported by substantive evidence and argument. The Investigator should advise participants that unsupported allegations will be insufficient to overcome presumptions of eligibility or ineligibility as reflected by the list of eligible voters. In addition, when craft or class issues are involved, the Investigator should require that the objection be supported by NMB case citation. |
| 4.2 Timeliness |
| It is within the discretion of the Investigator as to when the participants will be allowed to file challenges or objections. Due to variables such as the size of the electorate and/or the availability of information, no specific time limit will be prescribed herein. The Investigator will set a reasonable deadline in writing for challenges or objections which will allow sufficient time for the filing of appeals of Investigator's decisions to the Board and for Board decisions before the date of the count. Except for changes in eligibility status occurring after the deadline, challenges or objections not presented by the deadline will be untimely. Changes in eligibility status occurring after the deadline will be handled as status changes subject to Section 11.3. The Investigator may establish a deadline within which the participants can provide a response to challenges or objections filed by another participant. |
| Any request for an extension of time under this section must be supported by reasonable justification and submitted to the Investigator in writing with proof of simultaneous service. Consideration of an extension request will be based on the guidelines in Section 2.4. Absent extraordinary circumstances, no request for an extension of the deadline which is received on the date a submission is due will be considered. The Investigator will notify the participants whether an extension has been granted. Each participant will be limited to one extension of time, no greater than five (5) business days from the original deadline. |
| 4.3 Rejection of Challenges or Objections |
| Challenges or objections not supported by substantive evidence and argument will be rejected by the Investigator. Challenges or objections not provided to the Investigator by the deadline set by the Investigator will be rejected. Challenges or objections which do not meet the simultaneous service requirements of Section 1.302 will be rejected. |
| 4.4 Investigator's Decision on Challenges and Objections |
| It is the Investigator's responsibility, based upon the information available, to issue written decisions, with a copy to the Case Manager, resolving properly filed challenges or objections and setting the deadline for appeal. |
| 4.5 Finality of Investigator's Decision |
| If an Investigator's decision with regard to a challenge or objection has not been appealed to the Board within the prescribed time limit, the Investigator's decision is final. |
| 4.6 Appeals of Investigator's Decisions |
| The Investigator's decision letter should advise the participants of their right to appeal the decisions in writing to the NMB. The decision letter should further state that appeals from any source will be denied as untimely unless received at the NMB's offices on or before the date specified within the letter. No participant shall be given more than ten (10) calendar days from the date of the decision letter for the receipt of their appeals by the NMB, unless specifically authorized by the Chief of Staff. Absent extraordinary circumstances, evidence submitted on appeal will not be considered by the Board unless it has been submitted to the Investigator initially. It is the responsibility of the submitter to demonstrate extraordinary circumstances when additional evidence is presented on appeal. |
| 4.601 Submissions on Appeal |
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The moving participant may file one initial position statement. The responding participant may file one response to the initial position statement. In addition, participants may request the opportunity to file rebuttal statements. No further submissions will be considered by the NMB unless the Chief of Staff determines that there are extraordinary circumstances. |
| 4.602 Extensions of Deadlines for Appeals |
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Any request for an extension of the deadline for appeals must be supported by reasonable justification and submitted in writing to the Chief of Staff with proof of simultaneous service. Consideration of an extension request will be based on the guidelines in Section 2.4. Absent extraordinary circumstances, no request for an extension of the deadline which is received on the date a submission is due will be considered. The Chief of Staff will notify the participants in writing whether an extension has been granted. Each participant will be limited to one extension of time, no greater than five (5) business days from the original deadline, in the course of the appeal process. |
| 5.0 DETERMINATIONS |
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| The Investigator should gather and evaluate pertinent information and make determinations concerning issues which may arise during the course of the investigation. In making such determinations, the Investigator should be guided by the principles outlined below as well as applicable Board precedent. At the direction and discretion of the Case Manager, the Investigator shall prepare a report detailing the evidence gathered and the rationale for the determination. |
| 5.1 Craft or Class |
| In determining craft or class issues the Board gives consideration to all relevant elements, most important of which is the intent of the Railway Labor Act in settling disputes and promoting stable labor relations. The Investigator must consult with the Case Manager, and Chief of Staff when appropriate, on all craft or class issues prior to issuing a decision. The Investigator's decision may be appealed to the Board pursuant to Section 4.6. Individual cases require consideration of facts peculiar to particular situations, but, in addition, there are general factors to be considered. These may include, among others, the composition and relative permanency of employee groupings along craft or class lines; the functions, duties, and responsibilities of the employees; the general nature of their work; and the extent of community of interest existing between job classifications. Previous decisions of the Board which bear upon the issues of the particular dispute should also be taken into account. Prior decisions of the Board in regard to craft or class on the same carrier shall be binding upon the Investigator. |
| 5.2 Classifications |
| The Investigator will identify all job classifications which should be included in the craft or class. Careful consideration will be given to the functions, duties, and responsibilities of the employees. |
| 5.3 Eligibility of Individuals |
| 5.301 Part-Time Employees |
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When investigating the eligibility of a part-time employee, the Investigator should determine (a) if the employee works an identifiable schedule during a specified time period; (b) whether the employee regularly relieves other employees; (c) what benefits the employee receives; (d) what deductions are taken from the employee's pay; and (e) any other relevant facts which would indicate whether the employee has a regular part-time or a casual part-time employer-employee relationship. |
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The Investigator's determination of eligibility regarding part-time employees must take into consideration the varied operating practices on different carriers. If the individual's employment is casual, that is, where the employee has neither a regular employee-employer relationship nor scheduled work assignments, then the employee is ineligible. |
| 5.302 Temporary Employees |
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It is established NMB policy that only those employees with a present interest regarding the craft or class in dispute are eligible to vote in an NMB representation election. Such policy is implemented with respect to temporary employees by examining whether or not the employees in question have a reasonable expectation of continued employment or re-employment in the craft or class. |
| 5.303 Working Regularly in the Craft or Class |
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Absent unusual circumstances, employees who are working regularly in the craft or class at issue on and after the cut-off date are eligible to participate in the craft or class. Employees who leave the craft or class prior to the ballot count are not eligible. However, it is the Board's policy not to permit an employee to vote in more than one craft or class at the same time. |
| 5.304 Discharged Employees |
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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). |
| 5.305 Furloughed Employees |
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Furloughed employees are eligible in the craft or class in which they last worked provided they retain an employee-employer relationship and have a reasonable expectation of returning to work. However, a furloughed employee regularly working in another craft or class is ineligible in the craft or class from which the employee is furloughed. |
| 5.306 Leave of Absence |
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An employee on authorized leave of absence, including military leave, from the craft or class in dispute who is neither working in another craft or class, working for the carrier in an official capacity, nor working for another carrier, is eligible in the craft or class involved in the investigation. For example, an employee on authorized leave of absence for labor organization activities is eligible, as well as an employee who is on authorized sick leave. Where the question of leave of absence is contested, the Investigator should require supporting documents to verify that a bona fide leave of absence is in effect. |
| 5.307 Probationary Employees |
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Employees in the craft or class who are in probationary status are eligible. |
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5.308 Working For Another Carrier |
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An employee who would otherwise be eligible to vote under Section 5.304, 5.305, 5.306, or 5.311 who is working for a carrier other than the carrier involved in the dispute is ineligible. |
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| 5.309 Contractor's Employees |
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Individuals working for an independent subcontractor not part of the transportation system comprising the system of the carrier are ineligible. |
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5.310 Individuals Based in Foreign Countries |
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Only employees based within the United States and/or its possessions are subject to Railway Labor Act jurisdiction. |
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5.311 Retired Employees |
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Employees who have retired are ineligible to participate. However, an employee receiving physical disability payments is eligible if the employee retains an employee-employer relationship and has a reasonable expectation of returning to work. |
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An individual who has filed for and is receiving a disability annuity under the provisions of the Railroad Retirement Act shall not be an eligible voter. |
| 5.312 Management Officials |
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If an individual is determined to be a management official, the individual is ineligible. The Investigator shall consider, in the investigation, whether the involved individual has the authority to discharge and/or discipline employees or to effectively recommend the same; the extent of supervisory authority; the ability to authorize and grant overtime; the authority to transfer and/or establish assignments; the authority to create carrier policy; the authority and the extent to which carrier funds may be committed; whether the authority exercised is circumscribed by operating and policy manuals; the placement of the individual in the organizational hierarchy of the carrier; and any other relevant factors regarding the individual's duties and responsibilities. |
| 5.313 Preponderance |
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On many carriers, employees may hold seniority rights or work regularly in more than one craft or class and work back and forth between these crafts or classes. Employees regularly assigned on the "cut-off date" to an extra board, reserve or bulletined position within the craft or class involved, will automatically be considered eligible to participate in the election. Employees performing emergency services in the craft or class involved will not automatically be considered eligible to participate in the election. Additionally, when the Investigator finds that employees not considered eligible by virtue of their assignment on the cut-off date work a preponderance of the time in the craft or class involved, a preponderance check may be used to resolve any uncertainty. In order to be added to the list of eligible voters, an employee must have worked the preponderance of the time during the specified period in the craft or class covered by the application. |
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Criteria credited for compensation but not actually worked should not be used in determining preponderance of work, i.e., vacation, holiday pay, as well as arbitraries paid for, but not worked, should be eliminated from consideration. In many instances, a 60-day checking period, dating back from the date of the payroll period used to determine eligibility of regularly assigned employees should suffice. In others, a 30 or even a 90-day checking period may be acceptable. A period of less than 30 days, or longer than 90 days, should not be used unless there are unusual circumstances. The period for checking should be clearly understood by the contending parties and specifically stated. The criteria upon which the preponderance is based should be determined by the Investigator and clearly explained before the check is begun. |
| 6.0 EVIDENCE OF DISPUTE - AUTHORIZATIONS |
| 6.1 Form and Content of Authorizations |
| There is no prescribed or acceptable form for authorizations which the NMB suggests or requires. (Petitions are not accepted.) |
| Any type of authorization is sufficient if it includes the applicant's name and indicates that the employee either desires representation by the applicant for purposes of collective bargaining or desires a representation election. Any authorization card that is not signed and dated in the employee's own handwriting will not be counted towards the showing of interest. An employee's signature or mark in his/her own handwriting will be considered the employee's signature if it corresponds with the signature sample. |
| It is recommended that the authorization card include job title and employee number. If the carrier does not utilize employee identification numbers, the cards should include social security numbers. The authorization card should provide a space to print the employee's name as well as a space for the employee's signature. |
| To facilitate implementation of card check procedures, all authorization cards submitted to the NMB by any organization or individual must be in alphabetical order on a system-wide basis. Duplicate authorization cards should not be submitted. Substantial failure to provide authorization cards in alphabetical order on a system-wide basis may result in the return of authorization cards to the submitter. |
| 6.2 Age of Authorizations |
| NMB Rules require that authorizations will be considered void if they are dated more than one year before the date on the application invoking the NMB's services. |
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| 6.3 Acceptance of Additional Authorizations |
| An applicant or intervenor may present the Investigator with additional authorizations up to the deadline for receipt of such authorizations as specified below. The deadline for receipt of additional authorizations shall be the same for both the applicant(s) and any intervenors. Authorization cards will not be accepted by facsimile or electronic mail. |
| Where the investigation is conducted off-site, additional cards should be delivered to the Investigator at the NMB's office by 5 p.m., eastern time, on the day the Investigator receives the applicable list and signature samples. |
| When there is an on-site investigation, authorization cards not submitted with the application must be delivered to the Investigator on the property by 5 p.m., local time, the day the Investigator receives from the carrier the applicable list of eligible employees and the signature samples. |
| A list of potential eligible voters which is not a system-wide alphabetized list or which fails to include full name, job title or classification, or duty station or location, when required by Section 3.6, shall not be deemed an "applicable list" for purposes of this Section. Lists furnished by the carrier after 3 p.m. shall be treated as having been received on the next calendar day. A list which is not provided for the Investigator to keep and utilize according to this manual shall not be deemed an "applicable list" for purposes of this Section. |
| 6.4 Cancellation or Revocation of Authorizations |
| The Investigator will neither accept nor honor proposed cancellations or revocations of authorizations. Individuals seeking to revoke their authorizations should process such proposed revocations with the party to whom the original authorizations were furnished. |
| 6.5 Confidentiality of Authorizations |
| Authorization cards or other evidence of a representation dispute should not be entrusted to any person other than an NMB representative. |
| It is the Investigator's responsibility to treat as confidential the names of individuals who have signed authorizations as well as the number of authorizations submitted by applicants or intervenors. The carrier or opposing party or parties should not be privy to the number or percentage of authorizations involved. |
| Checklists, tally sheets or markings on lists of potential eligible voters, which are used by the Investigator in determining percentages of authorizations, are also confidential. |
| 6.6 Check of Alphabetized Authorizations |
| The Investigator should compare the list of potential eligible voters with the names of the employees who signed authorizations to determine if a sufficient percentage of authorizations has been submitted to require checking the validity of the authorizations. Should the total number of authorizations submitted be insufficient prior to checking their validity, that fact should be reported to the Case Manager and Chief of Staff. However, if in the professional judgment of the Investigator, there appears to be a reasonable possibility that adjustments to the list may result in a sufficient showing of interest, the validity of all authorizations should be checked by comparison with carrier records. Where it appears that the showing of interest requirement will not be met, the Investigator should notify the Case Manager and Chief of Staff and allow the parties to review the eligibility list before the Investigator makes the required recommendation to the Chief of Staff (with a copy to the Case Manager) concerning the showing of interest. |
| 6.601 Percentage of Authorizations Required |
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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 such representative and the carrier, the application must be supported by a majority (more than 50%) of valid authorizations from individuals in the craft or class. In all other circumstances, an application must be supported by at least 35% of valid authorizations from the individuals in the craft or class. The Board's Merger Procedures are not affected by this Section. |
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A craft or class shall be deemed to be unrepresented for purposes of this section if the incumbent organization represents less than the full craft or class, e.g., a voluntary recognition covering part of the craft or class. |
| 6.7 Resolving Discrepancies in Authorizations (Potential List of Eligible Voters) |
| If, during the check of authorizations against the list of potential eligible voters, certain names cannot be located, the Investigator should attempt to resolve this discrepancy using methods as are available and necessary. The Investigator should avoid divulging to the carrier the names of the individuals who cannot be located on the list. |
| 7.0 REPORT RE CHECK OF AUTHORIZATIONS |
| 7.1 Contents of Report |
| After a check of authorizations has been completed, the Investigator must inform the Chief of Staff (with a copy to the Case Manager) promptly of the results. The quickest method of notification should be utilized. Any oral reports must be followed immediately with a written report. |
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| If more than one craft or class is involved, the Investigator's report should identify each separate craft or class, the number of eligible voters, the number of valid authorizations submitted by the applicant organization and/or intervenor(s), the percentage of valid authorizations submitted, the cut-off date for purposes of eligibility, the preponderance, if any, and any unusual facts developed by the investigation. |
| The Investigator must either recommend that the Board find a dispute to exist or dismiss the application. For example, "Re: NMB Case No. R-(number). Investigation established that 400 potential eligible voters are involved. Applicant (name) submitted 300 valid authorizations for a 75% showing of interest. Intervenor (name) - submitted 204 valid authorizations for a 51% showing of interest. Recommend all mail ballot election with count in Washington, D.C., using August 4, 1997 as the cut-off date." |
| 7.2 Confidentiality of Report |
| The contents of the Investigator's report are not to be revealed to the organization(s), the carrier, or any individual not employed by the NMB. |
| 8.0 FINDING OF DISPUTE - AUTHORIZATION TO PROCEED BY NMB |
| The election will not proceed until authorized by the Chief of Staff. |
| The authorization from the Chief of Staff will be confirmed in writing and will indicate that the NMB has found a dispute to exist in the subject craft(s) or class(es). The authorization will establish the manner of resolving the dispute. Copies of this authorization will be sent to the involved carrier and organization(s). |
| 9.0 DISPOSITION OF DISPUTE BY VOLUNTARY RECOGNITION |
| If, during the investigation, it is determined that the carrier is willing to recognize the invoking organization, that the employees involved are an unrepresented craft or class, and that there are no contesting representatives, the Investigator should report these facts to the NMB. |
| The Investigator should also determine if the applicant desires to be recognized rather than to have its application processed further. If the organization desires recognition and the carrier is willing to recognize the applicant, then the applicant should furnish a statement withdrawing its application. This withdrawal will be the basis for the NMB's closing of its case file. |
| 10.0 DISPOSITION OF DISPUTES BY NMB |
| 10.1 Statutory Authorization |
| Section 2, Ninth, of the Railway Labor Act authorizes the NMB to investigate a representation dispute and to take a secret ballot of the employees or to utilize any other appropriate method of ascertaining the names of the representatives of the employees involved. |
| 10.2 Elections |
| In most instances where a dispute has been found to exist, the NMB will authorize an election exclusively by mail ballot. In some instances the NMB may authorize a ballot box election. |
| 10.3 Certification on the Basis of Check of Authorizations |
| A certification on the basis of a check of authorizations may be appropriate when the employees involved in the craft or class are unrepresented and only the applicant organization is involved. Under such circumstances, and where the participants agree in writing to certification on the basis of a check of authorizations, the Investigator should inform the Chief of Staff and obtain authorization from the Chief of Staff to proceed with the check of authorizations in lieu of an election. |
| 10.4 "Other Appropriate Methods" |
| In cases where the Investigator is unable to secure sufficient information to proceed with the investigation either from the applicant, an incumbent, or the carrier, the Investigator should report this fact to the Chief of Staff and suggest some other method by which the NMB may resolve the representation dispute. |
| 11.0 PREPARATIONS FOLLOWING AUTHORIZATION OF ELECTION |
| 11.1 Designation of the Official Eligibility List |
| The "List of Potential Eligible Voters" previously obtained from the carrier and corrected, if necessary, by the Investigator constitutes the "Official Eligibility List" following an election authorization. The Investigator shall designate the list by writing "Official Eligibility List" on the first page and initialing the list and changes thereon. The Investigator should retain a copy of the list and loan file until the Investigator has ruled on all outstanding challenges and objections. The Investigator should notify the participants, as well as the Case Manager, in writing of the changes, if any, to the list of potential eligible voters that are reflected on the Official Eligibility List. In addition, the Investigator should timely apprise the participants and the Case Manager in writing of any changes to the Official Eligibility List prior to the ballot count so that they may finalize their copies of the list. |
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| 11.2 Address List |
| Should the Board authorize an election, the carrier shall furnish to the Investigator at the NMB's office, upon request, system-wide alphabetized peel-off gummed labels bearing the full names and current addresses of all employees on the list of potential eligible voters. The labels shall be furnished upon request, but no later than five (5) calendar days after the authorization of the election. |
| It is the responsibility of the carrier to provide address labels for any individuals who may be added to the list or treated as challenged voters. |
| Labels or diskettes, or their contents, will not be entered into the NMB's system of records. Diskettes or unused labels will be returned or destroyed following the close of the case. |
| 11.3 Changes in Employee Status |
| During the election period, the Investigator should advise the participants to send a copy of any changes in employee status during the election period to the Investigator at the NMB's office. Status changes will be handled by the Investigator. Status changes should include the effective date of the change and supporting documentation. It is the responsibility of the carrier to provide supporting documentation when status changes are raised by participants. Status changes which do not meet the above requirements will not be considered. |
| Changes in employee status include, but are not limited to: death, retirement, promotion to management official, transfer out of craft or class, resignation, and working for another carrier. |
| The Investigator is not obligated to accept any allegations of changes in employee status, absent extraordinary circumstances, if this information is provided less than seven (7) calendar days before the scheduled count. Concurrence of the participants is not necessarily determinative of the Investigator's ruling. |
| 12.0 ELECTIONS |
| 12.1 Preparation of Documents |
| All NMB election materials should state the craft or class exactly as determined by the Board in the NMB's authorization. |
| 12.101 The Notice and Rules of Election |
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12.101-1 Contents of Notice |
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In every case where the NMB has authorized an election, a notice will be prepared advising employees of the rules governing the election. |
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The standard Notice of Election, Rules of Election, and Official Ballot is to be used in all election cases unless directed otherwise by the Board. It is incumbent upon the Investigator (or other agency designee) to carefully review these materials so that certain variables (e.g., craft or class involved, the time, and the place of election) are accurate. |
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12.101-2 Posting of Notice |
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The NMB will provide copies of the Notice of Election, Rules of Election, and Official Ballot-marked sample ("notice") to the participants at least five (5) calendar days before the ballots are mailed. The notice must be promptly posted by the carrier on carrier bulletin boards and in other appropriate locations, at least one per station, so that all eligible employees will be advised of the election in a timely manner. |
| 12.102 The Ballot |
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12.102-1 Places on the Ballot |
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It is NMB practice to list the incumbent, the applicant, and then the intervenor in descending order on the ballot. The final line on the ballot will provide a box for write-in votes. |
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If there is no incumbent, and more than one applicant, the Investigator should determine the method for placement of contesting organization names on the ballot and inform the participants. For example, the earliest date of application may be appropriate. |
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When two or more applicants file applications on the same calendar day, each shall be considered an applicant for the purpose of determining placement on the ballot. In the event that multiple applicants applying on the same date will appear on the ballot, or that multiple incumbents will appear on the ballot, a method of random selection will be employed. In any of these circumstances, the incumbent(s) will be listed first. |
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12.102-2 Name on Ballot |
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It is NMB practice that the national name of
the organization, not that of a local union or a division, is required to
appear on the ballot. A reasonable abbreviation or designation may
appear in parenthesis following the national name of the
organization. |
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12.102-3 Seal of NMB |
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The ballots will normally be overprinted with a non-reproducible NMB seal. When a hand seal is used, only ballots distributed to eligible employees should be sealed. |
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12.102-4 Color of Ballots |
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In cases where two or more crafts or classes are being voted simultaneously on the same carrier, different colored ballots for each craft or class will be provided. |
| 12.103 Location and Time of Ballot Count |
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The ballot count generally shall be set for 2 p.m., eastern time, at the NMB's office in Washington, D.C., unless an alternative time is determined by the Case Manager and Investigator. |
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12.104 Foreign Language Notice of Election, Ballots and Instructions |
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In cases where the electorate is composed of individuals who may be unable to read English, the Investigator should notify the Case Manager so that the use of approved foreign language notices of election, ballots, and voting instructions may be considered. |
| 12.2 Mail Ballot Elections |
| In cases where the NMB has authorized an election exclusively by mail ballot, the following procedures will apply: |
| 12.201 Schedule for Voting |
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The Case Manager, in consultation with the Investigator, and Chief of Staff as appropriate, will establish a time period for mail ballot voting of no less than 28 calendar days between the date of mailing of ballots to voters and the return of ballots to the NMB. Factors such as size of the electorate, number of stations involved, and geographical distribution of the voters should be considered in determining the appropriate voting period. Sufficient time should be provided for receipt and return of ballots by those employees who desire to participate. The schedule for the mailing of election materials and the counting of ballots will be communicated to the participants simultaneously in writing. |
| 12.202 Ballot Sets |
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The "ballot set" consists of the ballot and Notice of Election, mailing envelope, and the prepaid postage ballot return envelope. |
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The NMB will ensure, to the extent possible, that every eligible voter is mailed a ballot set. The return ballot envelope shall include the case number and key number and shall be addressed to the NMB, Post Office Box 13170, Arlington, VA 22219-3170. |
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Die cut window envelopes in which the case number and the key number on the ballot return envelope is visible will be used for mailing election material. |
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| 12.203 Key Numbering |
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A unique key number will be placed on each return ballot envelope and noted on the Official Eligibility List next to the name of each voter. This number will be used to determine the location of the returned ballot envelope on the eligibility list. This key number will be kept confidential. |
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The key number provides a means of controlling the integrity and security of the election. It is confidential and is devised in such a way as to eliminate the possibility of unauthorized ballots. The key numbering system should vary from case to case in order to avoid establishing a predictable pattern. |
| 12.204 Handling of Ballot Materials |
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Only the Investigator or other NMB agent(s) should actually be involved in the physical handling of material to be mailed to the voters. |
| 12.205 Challenged Ballots |
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All individuals whose eligibility or ineligibility has been challenged, for whom no final decision has been made, will be sent challenged ballots. The NMB's copy of the eligibility list will be marked with a "C" next to the employee's name to indicate that this individual's eligibility to receive a ballot has been challenged. |
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If an Investigator's decision with regard to a challenge or objection has not been appealed to the Board within the prescribed time limit, the decision is final. |
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When a final Board decision on eligibility is made, or if the appeal deadline has passed and an appeal has not been received, the list shall be corrected accordingly. |
| 12.206 Procedures Regarding Duplicates and Undeliverables |
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12.206-1 Duplicate Ballots |
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When a request for a duplicate ballot is received, the eligibility list will be checked to determine if the individual is entitled to a ballot. |
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Only a request for a duplicate ballot signed and sent by the individual eligible employee will be honored. Requests sent by other than individual eligible employees will not be honored. Each request must be sent in separately. A request for a duplicate ballot sent by telegram, facsimile or electronic mail, or received less than seven (7) calendar days before the date of the count, will not be honored. A request for a duplicate ballot dated or received prior to the mailing of ballots will not be honored. |
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The name of any individual requesting a duplicate ballot will be treated as confidential. The individual eligible voter entitled to a duplicate ballot will be sent a complete ballot set including the case number and the same key number as originally designated. However, the return ballot envelope should be clearly marked "duplicate". Notations should be made on the eligibility list indicating that a duplicate has been mailed and the date mailed. |
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12.206-2 Undeliverable Ballots |
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When a ballot is returned as undeliverable, the accuracy of the address will be checked using whatever method is deemed necessary. If a new address or the correction to the address is obtained at least seven (7) calendar days prior to the date of the count, the ballot will be mailed to the new or corrected address. |
| 12.3 The Ballot Count |
| Absent any unusual circumstances, the ballot count will be conducted as provided on the Notice of Election. |
| 12.301 Requests to Postpone the Ballot Count |
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Absent extraordinary circumstances, requests to postpone the ballot count and impound the ballots must be submitted in writing, no later than two (2) business days before the scheduled count, directed to the Chief of Staff, and must be supported by substantive evidence. The Chief of Staff will consider granting such requests only in extraordinary circumstances. |
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12.302 Initial Preparations for Count of Ballots |
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12.302-1 Obtaining Ballot Envelopes from NMB Office |
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The Investigator may arrange to have organization(s) and carrier representatives observe the Investigator collect the ballot envelopes from the NMB security safe at the appropriate date and time. |
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The Investigator assigned to the count should verify that all ballots returned in the case have been delivered to his or her custody. |
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12.302-2 Adjustments to the Official Eligibility List |
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Prior to commencing the ballot count, the Investigator should adjust the Official Eligibility List by: (1) clearing challenges and objections; (2) accounting for undeliverable ballots; and (3) adjusting for changes in employee status. |
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Prior to the counting and tabulating of ballots, the Investigator should review the eligibility list and loan file to determine if the list is accurate with respect to eligibility. The ultimate decision as to eligibility must be made before commencing the ballot count. |
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Investigator's Decisions Not Appealed |
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If an Investigator's decision has not been appealed to the Board within the prescribed time limit, the Investigator assigned to the count should verify that the list reflects the Investigator's decisions. |
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Appeals |
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If an appeal has been made, the Investigator should correct the list, if necessary, to reflect the Board's rulings. |
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Undeliverable Ballots |
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The Investigator shall remove from the list of eligible voters the name of any employee: a) for whom a valid mailing address has not been obtained at least seven (7) calendar days prior to the time of the count; or b) whose ballot was returned as undeliverable within seven (7) calendar days of the count. |
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Status Changes |
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The list should be corrected, if necessary, to reflect any status changes. |
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12.302-3 Report of Election Results |
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The Report of Election Results form will be prepared prior to the count for completion at the count. |
| 12.303 Commencing the Count |
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12.303-1 Authority to Count |
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The Investigator or other agency designee should not begin the counting or tabulating procedures before all timely challenges or objections with regard to eligibility or other substantive issues have been resolved. In addition, when a timely filed appeal is pending before the NMB, the count should not commence. |
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Absent the foregoing circumstances, unless the Investigator is officially advised by the NMB to defer or cancel the ballot count, the Investigator shall complete the ballot count and overrule requests of participants either to defer or to cancel the count, even when the applicant desires to withdraw the application. |
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12.303-2 Investigator's Control of Election Proceedings |
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Admission To Ballot Count |
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It is NMB practice to allow a reasonable number of observers representing the organization(s) and carrier to be present during the ballot count. |
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Should employees on the eligibility list request the opportunity to be present during the ballot count, the Investigator may admit such observers. However, these practices are subject to the Investigator's discretion, and the Investigator may limit the number of observers or, in appropriate circumstances, allow no observers since admission to the ballot count is a privilege and not a right. |
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It is the Investigator's responsibility to ensure that the observers neither interfere with the Board's counting procedures nor compromise the secrecy of the ballots. |
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Control of Election Materials |
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All materials which might disclose whether particular employees cast ballots or refrained from voting must be secured from the view of observers at all times. Such materials include ballot envelopes, marked eligibility lists, requests for duplicate ballots, etc. |
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12.303-3 Handling of Returned Mail Ballots |
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As a priority matter, the Investigator must ensure that all observers are located where they cannot determine which employees cast ballots or refrained from voting. Only the Investigator and agency designees should have knowledge of which employees returned ballot envelopes. |
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The returned mail ballot envelopes should be compared with the list of eligible voters and, if identifiable, a check mark made next to the name of the individual who returned the ballot. |
| 12.4 Ballot Determinations - Invalid, Void or Valid |
| 12.401 Invalid Ballot Return Envelopes |
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Invalid ballot envelopes are those envelopes which can be determined on the face of the envelope not to be valid for inclusion in the ballot count. Examples of invalid ballot envelopes include unidentifiable, incomplete and returned envelopes from individuals not on the Official Eligibility List. All ballot envelopes ruled invalid shall not be opened and shall be marked "Invalid" with reason, if appropriate. |
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12.401-1 Incomplete Returned Mail Ballot Envelope |
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Returned mail ballot envelopes lacking a properly executed attest shall be ruled invalid. |
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If the returned ballot envelope does not contain the key number and/or the case number, and in the Investigator's judgment, the reasons for these missing identifications are not clerical error, these returned ballot envelopes shall be ruled invalid. |
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12.401-2 Challenged Ballot Envelopes |
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Challenged ballot envelopes from individuals who have been determined to be ineligible shall be ruled invalid. |
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12.401-3 Original and Duplicate Ballot Envelopes Both Returned |
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When an eligible voter returns both the original and a duplicate ballot envelope, the original shall be opened and tabulated and the duplicate ballot envelope shall be ruled invalid and marked to show why it has not been opened. |
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12.402 Void Ballots |
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A void ballot is a ballot which has been opened at the ballot count and rejected for reasons such as those described below. All ballots ruled void shall be tabulated and recorded on the Report of Election Results as void ballots. |
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12.402-1 Ballot Cast For Carrier or Carrier Official |
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Ballots cast for a carrier or a carrier official shall be ruled void since a carrier or carrier official is not qualified to be an employee representative. |
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12.402-2 Marks In More Than One Square |
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A ballot marked in more than one square, where the intent of the voter as to choice of organization or individual is not clear, shall be ruled void. |
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12.402-3 Ballot Marked "No," "No Union," or Unmarked |
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A ballot marked negatively, indicating no desire for representation, shall be ruled void. A blank ballot shall be ruled void. |
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12.402-4 Ballot Disclosing the Voter's Identity |
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A ballot which has been signed or clearly identifies the individual voter shall be ruled void, unless the voter has placed his/her name in the write-in space on the ballot and is not identified elsewhere on the ballot. |
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| 12.403 Valid Ballots |
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Where the voter's intent is clear to the Investigator and the ballot is not void, the ballot shall be ruled valid and shall be tabulated and recorded on the Report of Election Results. |
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12.403-1 Write-In Ballots |
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A write-in ballot which clearly indicates the employee's desire for representation shall be ruled valid. Where an employee has marked an "X" in the box indicating desire for representation by "any other organization or individual" without filling in the write-in space, the ballot is valid. However, where the employee has written in "self," "self representation," or equivalent language, the ballot is void. See also Section 12.402-4. |
| 13.0 TABULATION AND REPORT OF ELECTION RESULTS |
| The Investigator shall complete the count, tabulate the results, and record them on the Report of Election Results. The form will show the number of eligible employees, void ballots, valid ballots, and the organization or individual to whom they were attributed. The Investigator shall sign the Report of Election Results. Participants observing at the count should be requested to voluntarily witness the Report of Election Results. Copies of this report should be provided to the participants. |
| 13.1 Submission of Report of Election Results |
| The Investigator shall promptly deliver the completed Report of Election Results to the Chief of Staff, General Counsel, Case Manager, Representation Coordinator, and Receptionist. |
| 14.0 ALLEGATIONS OF ELECTION INTERFERENCE |
| Allegations of election interference must be received in writing at the Board's offices no later than 4 p.m., eastern time, two (2) business days after the date of the count. Initial filings received beyond this deadline will not be considered timely absent extraordinary circumstances. Allegations of election interference must be accompanied by substantive evidence. The allegations and supporting evidence must present a prima facie case, otherwise the Chief of Staff will find an insufficient basis for further investigation, absent extraordinary circumstances which justify an exception to this standard procedure. Absent extraordinary circumstances, the count will take place as scheduled and, unless a prima facie case is established, a certification or dismissal will be issued. |
| If a prima facie case is established, the moving party will have an additional seven (7) business days after notification by the Chief of Staff to supplement its initial filing. The responding party will have seven (7) business days to file a response. Any request for the extension of the time limits in this section must be supported by reasonable justification and submitted in writing to the Chief of Staff with proof of simultaneous service. Consideration of an extension request will be based on the guidelines in Section 2.4. Absent extraordinary circumstances, no request for an extension of the deadline which is received on the date a submission is due will be considered. The Chief of Staff will notify the participants in writing whether an extension has been granted. |
| If the Board is able to make a determination of whether election interference has occurred on the basis of written submissions, it will do so. In certain cases, however, the Board will conduct further investigation. |
| 15.0 INVESTIGATOR'S FINAL REPORT |
| Upon completion of the ballot count, the Investigator shall timely prepare the Election Report. This report should indicate, in detail, all activities and should highlight, if necessary, any actual or possible challenges or objections which have been made or could be raised. This report should be promptly provided to the Chief of Staff and Case Manager. |
| A copy of the Election Report, together with the loan file, including the ballots and ballot envelopes, should be promptly submitted to the Representation Coordinator, with copies of the report distributed and filed as appropriate by the Representation Coordinator. |
| 16.0 RUN-OFF ELECTIONS |
| In an election using the standard NMB ballot, a run-off election may be held when a majority of the eligible voters have cast valid ballots, but no single organization or individual has received a majority of the votes cast. The procedures for run-off elections are prescribed by Section 1206.1 of the NMB Rules. All requests for run-off elections should be directed to the attention of the Chief of Staff. Only upon a written authorization of the Board will a run-off election be conducted. |
| A written request by an individual or organization entitled to appear on the run-off ballot must be submitted to the Board within ten (10) days after the date of the report of results of the first election. |
| In the event a run-off election is authorized by the Board, the name of the two (2) individuals or organizations which received the highest number of votes cast in the first election shall be placed on the run-off ballot, and no blank lines on which voters may write in the name of any organization or individual will be provided on the run-off ballot. |
| Employees who were eligible to vote in the first election shall be eligible to vote in the run-off election, except those employees who are no longer employed in the craft or class. |
| 17.0 MOTIONS FOR RECONSIDERATION |
| Motions for Reconsideration of Board decisions concerning jurisdiction, craft or class, challenges or objections or election interference will be given consideration only upon the following circumstances: 1) the motion (original and one (1) copy) is received by the Chief of Staff within two (2) business days of the decision's date of issuance; 2) the motion is accompanied by a certificate of service which attests to its simultaneous service on the designated participants in the proceeding; and 3) the motion states with particularity the points of law or fact which the movant believes the NMB has overlooked or misapplied and the detailed grounds for the relief sought. Upon consideration of a Motion for Reconsideration, the NMB will decline to grant the relief sought absent a demonstration of material error of law or fact or under circumstances in which the NMB's exercise of discretion to modify the decision is important to the public interest. The mere reassertion of factual and legal arguments previously presented to the NMB generally will be insufficient to obtain relief. Reconsideration may not be sought from the Board's certification or dismissal. |
| 18.0 BARS TO REPRESENTATION APPLICATIONS |
| The NMB's representation bar procedures are set forth in Part 1206.4 of the NMB Rules, revised effective February 22, 1979. |
| 18.1 Applicable Board Rules |
| NMB Rules, Part 1206.4, governing representation bar procedures provide as follows: |
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Except in unusual or extraordinary circumstances, The National Mediation Board will not accept an application for investigation of a representation dispute among employees of a carrier: |
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(a) For a period of two (2) years from the date of a certification covering the same craft or class of employees on the same carrier, and |
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(b) For a period of one (1) year from the date on which: |
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(1) The Board dismissed a docketed application after having conducted an election among the same craft or class of employees on the same carrier and less than a majority of eligible voters participated in the election; or |
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(2) The Board dismissed a docketed application covering the same craft or class of employees on the same carrier because no dispute existed as defined in §1206.2 of these Rules; or |
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(3) The Board dismissed a docketed application after the applicant withdrew an application covering the same craft or class of employees on the same carrier after the application was docketed by the Board. |
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