In the Matter of the

Application of the

UNITED TRANSPORTATION UNION, AFL-CIO

alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, as amended

involving employees of

UNION PACIFIC RAILROAD COMPANY

27 NMB No. 45

CASE NO. R-6735

(File No. CR-6624)

FINDINGS UPON INVESTIGATION- ADOPTION OF PANEL

DETERMINATION

February 29, 2000

This finding addresses the application filed on January 12, 1998, by the United Transportation Union, AFL-CIO (UTU), alleging a representation dispute among "Train and Engine Service Employees," employees of Union Pacific Railroad Company (UP). UTU is the certified representative of most of the Train Service Employees on UP. The Brotherhood of Locomotive Engineers, AFL-CIO (BLE), is the certified representative of most of the Engine Service employees at UP.

On December 30, 1999, the Board issued a Notice of Determination by Panel, 27 NMB 171, referring resolution of the issues in this case to a three-member Panel of prominent labor

relations professionals.1 On January 7, 2000, the Board appointed Arnold M. Zack, Chairman, and Richard I. Bloch and Richard R. Kasher as Members of the Panel.

ORDER

On March 1, 2000, the Panel issued the attached determination. Pursuant to its authority under Section 2, Ninth, of the Railway Labor Act, 45 U.S.C. § 152, Ninth, the Board adopts the Panel's determination. On the basis of that determination, File No. CR-6624 is converted to Case No. R-6735 and the Board hereby dismisses the application.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copies to: (See Attached)

Copies to:

Clinton J. Miller III, Esq.

Mr. Charles L. Little

William A. Bon, Esq.

Mr. Byron A. Boyd, Jr.

Mr. John A. Nadalin

James L. Linsey, Esq.

Michael L. Winston, Esq.

George H. Cohen, Esq.

Harold A. Ross, Esq.

Mr. Edward Dubroski

Jonathan P. Hiatt, Esq.

William L. Phillips, Esq.

Michael S. Wolly, Esq.

Mr. John J. Marchant

Brenda J. Council, Esq.

Ralph J. Moore, Esq.

Arnold M. Zack, Chairman

Richard I. Bloch, Member

Richard R. Kasher, Member

In the Matter of the

Application of the

UNITED TRANSPORTATION UNION, AFL-CIO

alleging a representation dispute pursuant to Section 2, Ninth, of the Railway Labor Act, as amended

involving employees of

UNION PACIFIC RAILROAD COMPANY

FILE NO. R-6624

DETERMINATION OF

CRAFT OR CLASS

Arnold M. Zack, Chairman

Richard I. Bloch, Member

Richard R. Kasher, Member

February 29, 2000

PROCEDURAL BACKGROUND

This matter before the National Mediation Board (NMB) involves the application filed by the United Transportation Union AFL-CIO (UTU) alleging a representation dispute among "Train and Engine Service Employees", employees of the Union Pacific Railroad Company (UP).

On January 12, 1998, the UTU applied to the NMB for creation of a single craft or class of Train and Engine Service Employees on Union Pacific Railroad.

Two days later, on January 14, 1998, the Brotherhood of Locomotive Engineers (BLE) responded by filing a protest with the AFL-CIO Internal Disputes Committee. It claimed that the UTU application to the NMB was in violation of Article XX Section 2 of the AFL-CIO Constitution in seeking to upset the BLE's established collective bargaining relationship with the UP. On January 27, 1998, the UTU invoked the Board's merger procedures.

At the request of the AFL-CIO, the NMB deferred proceeding on the UTU application pending the completion of the AFL-CIO Internal Disputes procedures. On February 26, 1998, AFL-CIO Impartial Umpire Paul Weiler issued his determination that the UTU's effort constituted "A major-perhaps unprecedented – violation of the BLE's established rights under Article XX". The UTU appeal of the Weiler decision was turned down by a special subcommittee of the AFL-CIO Executive Council on March 12, 1998, and was subject to no further appeal.

Thereafter, the NMB further stayed its proceedings while the UTU and BLE negotiated the creation of a new labor organization, using the assistance of Tom Donahue as a neutral facilitator. Those proceedings took from May 1998 until May 1999 but were unsuccessful in resolving the conflict. The UTU reinstated its application to the NMB on May 1, 1999. In response, the BLE complained to the AFL-CIO that the UTU was not in compliance with the findings of the AFL-CIO Executive Council. The Executive Council in turn requested the UTU to withdraw its application by June 28, 1999, and when the UTU declined to withdraw, imposed sanctions pursuant to Art. XX, Sec 10 of the AFL-CIO Constitution.

On July 2, 1999, AFL-CIO President Sweeney requested the Board to dismiss the UTU application, a request that is currently pending before the NMB. The NMB held hearings on the UTU petition from July 6-10, 1999. On August 2, 1999, AFL-CIO General Counsel Hiatt requested permission of the NMB to file an Amicus Curiae position. The Board permitted other organizations that were not participants to file post-hearing positions.

On December 30, 1999, the Board issued a Notice of Determination by Panel and asked the parties whether they would engage in further discussions to resolve the dispute with the aid of a neutral facilitator. On January 10, 2000, the parties advised the Board that they were not in agreement on reopening discussions. On January 11, 2000, the undersigned panel was appointed to resolve the dispute, pursuant to Section 2, Ninth.

FACTS OF THE CASE

The UP is a Class 1 railroad and the result of consolidations with the Missouri Pacific Railroad, Western Pacific Railroad, Missouri-Kansas-Texas Railroad, Northwestern Railroad, and Southern Pacific Railroad. UTU is the certified representative of the 13,595 employees in the Train Service craft or class on the UP. The Brotherhood of Locomotive Engineers, AFL-CIO (BLE) is the certified representative of the 9,463 employees in the Engine Service craft or class at UP.

The UTU is the collective bargaining representative of conductors who are responsible for the safety of passengers and/or cargo, responsible for calling out signals, and are also in charge of the train crew. At present crews consist primarily of engineers and conductors and both ride in the front cab and are responsible for relaying signals. The conductor has an emergency brake on his or her side of the cab.

The BLE is the collective bargaining representative of engineers who check the condition of the locomotive before and after each tour of duty, control the starting, stopping, and speed of trains, checking meters and gauges to determine speed, fuel, power, and air pressure. They observe signals indicating moves of other trains, obstacles on the track, equipment malfunctions, and speed amounts. Engineers are trained as apprentices in classes and on simulators with daily tests leading to certification of those receiving 85% or more on their final exam. Pursuant to the Railway Safety Improvement Act of 1988, engineers must be federally certified, with suspension or loss of certification facing those guilty of serious rules infractions.

Prior to 1978, the source of engineers was from the ranks of firemen. The UP abolished the position of firemen and the 1978 National Agreement authorized it to select volunteer train service employees into engine service. In 1985, the National Rail Agreement made the progression to make the engine service exam mandatory based upon train service seniority. Since 1985, if a trainman fails to pass the engine service exam, he or she is terminated. When engineer openings arise, UP conductors who apply are placed by seniority. About fifty percent of the current engineers were formerly in train service. If there are insufficient applicants from among the conductors, the UP may open the position to other employees or sources.

Pursuant to ebb-and-flow agreements among the parties, junior engineers may revert to train service in the event of seasonal fluctuations, returning to engine service during upturns in business. As distinguished from ebb-and-flow, the evidence shows a limited amount of cross utilization. Over a measured 90- day period, there was less than one percent cross utilization.

Pursuant to Incidental Work Rules agreements negotiated among the parties in 1985 and 1986, train and engine service employees may perform work normally performed by the other craft or class including handling switches, moving, turning, and spotting locomotives and cabooses, supplying locomotives and cabooses, inspecting cars, shutting down locomotives, bleeding cars, making walkway and rear end air test, etc..

Both unions have similar agreement provisions covering pay and vacation, road-yard demarcation, and interdivisional service and similar rule provisions. They have jointly negotiated an agreement on "Work/Rest Guidelines/Principles."

POSITION OF THE UP

The UP has refrained from asserting a position in the pending dispute.

POSITION OF THE UTU

The UTU argues that there is ample support for certification of a single train and engine service employee craft or class. It notes that conductors and engineers share the requisite community of interest to constitute a single craft or class, even if they do not perform identical jobs. UTU contends that engineers and conductors have inter-related job functions, that they share the same requisite community of interest present in the United Airlines Case, 3 NMB 56 (1961), are part of the same line of progression and promotion, required to be acquainted with, and to an extent, perform the same general duties and responsibilities, and that such a consolidation would foster industrial peace by avoiding excessive fragmentation inherent in separate collective bargaining.

The UTU asserts that a number of recent NMB decisions have determined that conductors, and engineers are properly grouped as a single craft or class. It cites in particular Florida East Coast Railroad 21 NMB 35 (1993) where the Board found that retention of separate trainmen and engineer crafts or classes would be contrary to the reality of actual carrier operations, and would result in artificial fragmentation of employees. It found that consolidation was justified regardless of whether there was cross utilization between the two crafts or classes.

The argument in support of a single craft or class of train and engine service employees is strengthened, according to the UTU, by the evidence of an overriding community of interest among operating employees as a consequence of reduced crew consists, the creation of the single line of progression from trainmen to engineers, by the mutually applicable incidental work rules, by the ebb-and-flow of work, and by the fact that trainmen and engineers are part of a single operating unit with joint and equal responsibility for the operation of the train. Since both engineers and trainmen have a common interest in the outcome of labor negotiations, including pay and vacation, road yard demarcation, ebb-and-flow, and related issues, the UTU asserts separate representation has a destabilizing effect on labor relations.

The UTU concludes that its invocation of the Railroad Merger Procedures, 17 NMB 44 (1989), was appropriate because the dispute of the UP obviously arises in the context of the UP-SP merger and urges the Board to utilize its unfettered direction in establishing a showing of interest based on dues check-off lists.

POSITION OF THE BLE

The BLE challenges the effort of the UTU to establish a single craft or class of train and engine service employees. It argues that the UTU has failed to establish why the historical patterns of representation for these two crafts should be abandoned in favor of a combined craft or class. It notes that the Board has historically refused to create a new combined craft or class unless the records have shown significant cross utilization not present in this case. BLE notes that the Florida East Coast application to combine historically separate engine and train service crafts was only one case; other Shortline railroad cases did not depart from the historic record of separate engineer craft and class.

The BLE argues that there has been insufficient evidence of cross utilization when in the 90 day preponderance check period, only 89 individuals were cross utilized on 264 starts, out of 22,700 employees working 1,204,435 separate starts. Additionally, it notes that the engineers' core duties and responsibilities are unique, require special skills and knowledge and constant exercise of judgment without any conductor ever putting a hand on the throttle. This separation of that critical job function is a matter of historical tradition, job description and statute which in the Rail Safety Improvement Act of 1998, 49 USC Section 20103, prohibits any employee other than a duly certified engineer from operating the locomotive. That statute requires engineers to undergo extensive training for six-months, four-months riding with an instructor engineer, and familiarity with the different routes. These requirements are imposed on engineers alone with onerous consequences for breach of such requirements.

The BLE notes that engineer seniority has always been separate at UP, which under the 1985 agreement, is not attained until completion of the demanding, comprehensive engineering training program. Additionally, cross bidding is prohibited between the UP agreements with train service seniority and engineer seniority being mutually exclusive.

The BLE discounts the United Airlines case as precedent, noting that the Board itself held that that airline decision would have scant applicability in the railroad industry with its long history of craft separation. BLE further notes that even there all but 17 of the 624 flight engineers were already possessed or were in the process of acquiring commercial pilot certification. The degree of cross utilization in the United case, according to the BLE, is not present in this case, nor is there the requisite qualification for conductors to assume engineer responsibilities. Since the 1985 introduction of the mandatory line of promotion only 20 percent of the trainmen hired pre-1985 have been promoted and certified as engineers with 80 percent having refused such promotions to engineer.

The BLE further argues that the asserted Mandatory Line of Progression in effect since 1985 is hardly so. There is discretionary selection for promotion and only a discrete portion of the train service complement have access to mandatory forced promotion to engineer. It also argues that while both classes may have an overlap of incidental work, the core work of operating the locomotive is reserved by practice and law to the engineer's classification. Likewise, in the case of ebb-and-flow, only a small segment, the most junior engineers, are so protected.

The BLE contends that consolidation would not enhance the stability of labor management relations, that there is no evidence to support that assertion, and that under the UTU proposal, the engineers could in any event reject an agreement the majority objected to.

Finally, the BLE argues that the Board's merger procedures are inapplicable and should be rejected in light of its failure to secure a requisite majority showing of intent among engineers.

DISCUSSION

The essential issue before us is whether Train and Engine Service Employees should constitute a single craft or class to be introduced at this Carrier.

In assessing the merits of the UTU argument in support of that proposition we are guided by Section 5.1 of the NMB Representation Manual, dated April 30, 1999. In making determinations pursuant to that Manual the Board "requires consideration of facts peculiar to particular situations" as well as "general factors" including

The composition and relative permanency of employees 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.

This case turns on whether the proposed craft or class would meet the standard of "community of interest existing between job classifications" required by the NMB Representation Manual and the Railway Labor Act. There is no question that the conductors and engineers share many joint responsibilities and work together as a team in much of the operation of the train. They have interrelated functions, utilize seniority in the ebb and flow of work and have access to a single line of progression to the engineers seat.

But the evidence shows that the engineers and conductors have historically organized themselves as separate crafts and classes, with the BLE representing primarily engineers for more than a century. That separation has long recognized the statutory and training requirements for entry into the engineer craft and class and supports the conclusion that engineers have separate and distinct core duties compared to those in the conductor craft and class. Indeed, despite the mandatory progression since Nov. 1, 1985, movement into the engineer position is not automatic, but rather dependent on carrier discretion in calling for a class, and its determination as to successful bidding as a well as completion of training and fitness to fill the engineer position. Additionally the evidence is clear that becoming an engineer requires a federal certification in order to be legally qualified to be in control of the throttle that operates the train.

The UTU cites the cross utilization that supported the consolidation of the pilots, co-pilots and flight engineers in the United Airlines Case. But in that case every member of the three- person flight crew was a trained, certified and qualified pilot with cross training of the pilots to be flight engineers. Here to the contrary, the results of a 90-day cross-utilization preponderance check period showed that of 9,200 engineers, and 13,500 conductors during 1,240,435 separate start-ups there were 89 instances of cross utilization for a total of 264 occasions. Indeed, of the 10,413 employees in train service on November 1, 1985 who were then given access to promotion to engineer, over the past 15 years 80% have declined the opportunity to acquire the requisite training and certification that would have made them qualified engineers.

Even in the case of the Florida East Coast Railroad, 21 NMB 35 (1993), where the Board approved a new craft or class of Engine and Train Service Employee, the evidence shows that employees were on a single seniority roster, and that there had been extensive interchange and cross utilization, not present in this case.

In the light of the foregoing, we must conclude that the conditions here present do not justify an order by the Board for a single craft or class. Certainly the parties are still free to negotiate the consolidation here in issue. We find only that the conditions here present do not support an order for the Board to impose a single craft or class. In the light of the foregoing there is no reason for us to determine if the UTU properly invoked the Board's Railroad Merger Procedures.

By direction of this panel as designated by the National Mediation Board.

/s/

Arnold M. Zack, Chairman

/s/

Richard I. Bloch, Member

/s/

Richard R. Kasher, Member