In the Matter of the

Application of the

Brotherhood of Locomotive Engineers

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

involving employees of

The Texas Mexican Railway	Company

27 NMB No. 46

CASE NO. R-6704

FINDINGS UPON

INVESTIGATION– DISMISSAL

March 1, 2000

On September 13, 1999, the Brotherhood of Locomotive Engineers (BLE) filed an application with the National Mediation Board (Board) pursuant to 45 U.S.C. § 152, alleging a representation dispute among "Locomotive Engineers," employees of The Texas Mexican Railway Company (TexMex or Carrier).

At the time of this application, "Trainmen (Brake Operators)," "Conductors," and "Locomotive Engineers" were represented by the United Transportation Union (UTU) pursuant to Board certifications in Case Nos. R-617, R-1975 and R-4403, respectively. See Texas Mexican Railway Company, R-617 (1940); Texas-Mexican Railway Company, R-1975 (1948); and The Texas Mexican Railway Company, R-4403 (1973).

The Board assigned Sean J. Rogers as the Investigator.

For the reasons described below, the Board consolidates the certifications in Case Nos. R-617, R-1975, and R-4403 and finds that the proper craft or class, based on the facts presented in this case, is Train and Engine Service Employees. The BLE's application is dismissed.

PROCEDURAL BACKGROUND

On September 13, 1999, based on the BLE application, the Board instructed the Carrier to provide a list of potential eligible voters and signature samples for the employees in the craft or class of Locomotive Engineers. The Board also advised the Carrier, BLE, and UTU that they could provide an initial position statement in the case by September 27, 1999.

On September 15, 1999, UTU filed an initial position statement asserting that the proper craft or class in this case was "Train and Engine Service Employees." The BLE filed an initial position statement on September 17, 1999, asserting that the proper craft or class in this case included approximately forty-six Locomotive Engineers and that there was "no craft or class of Train and Engine Service Employees on the Texas Mexican Railway Company."

The Carrier's September 24, 1999, position statement asserted that there was a "longstanding history on Tex Mex of treating all train and engine service employees as a single class or craft for collective bargaining purposes." The Carrier's list of potential eligible employees included 102 employees with position titles of Engineer and Conductor.

On September 27, 1999, the Investigator provided the participants with the opportunity to file challenges and objections, and more complete position statements by October 12, 1999. The participants were also given the opportunity to reply to challenges and objections, and position statements by October 19, 1999. UTU filed challenges and objections, and a position statement on October 11, 1999. The Carrier and BLE made submissions on October 12, 1999. All participants filed replies on October 19, 1999.

ISSUE

What is the proper craft(s) or class(es) for Engineers, Conductors and Trainmen at The Texas Mexican Railway Company?

CONTENTIONS

BLE

The BLE asserts that at TexMex there are "102 operating employees, thirty-seven of whom are Locomotive Engineers and sixty-five of whom are Conductors/Brake Operators." The BLE notes that as a result of a representation dispute in 1973, BLE was replaced as the representative of Locomotive Engineers by UTU and that the craft or class of Locomotive Engineers has been recognized by the Carrier for collective bargaining purposes ever since.

The BLE asserts that the Carrier and the UTU "have maintained a separate engineer only seniority roster" and "that none of the engineers are now (or indeed ever have been) cross- utilized as Conductors or Brake Operators." The BLE asserts that Florida East Coast Railroad Company, 21 NMB 35 (1993) (FEC), establishes the special circumstances before the Board will combine historically separate crafts or classes. The BLE says that on a short-line railroad, the Board,

[W]ill approve a radical departure from the historic pattern of representation of engineers as a separate craft and will approve the creation of a new combined craft or class of Engine and Train Service Employees, if -- but only if -- a carrier can establish by objective evidence that it cross utilizes its locomotive engineers and conductors/trainmen to a significant, material extent.

The BLE asserts that there is no cross-utilization between Engineers and Conductors/Brake Operators at TexMex and, based on the BLE showing of interest, an election should be directed among the proper craft or class of Locomotive Engineers.

UTU

UTU maintains that the proper craft or class in this case is Train and Engine Service Employees. UTU notes that over the years it has merged with the Brotherhood of Railroad Trainmen, the Order of Railway Conductors & Brakemen, the Switchman's Union of North America, and the Brotherhood of Locomotive Firemen & Enginemen. The mergers and the UTU's 1973 certification for the craft or class of Locomotive Engineers have resulted in UTU representation of all TexMex's Train and Engine Service Employees, according to UTU.

UTU asserts that all TexMex's Train and Engine Service Employees are covered by the 1985 UTU National Agreement. Furthermore, UTU says, the Carrier reached specific agreements with UTU in 1992 and 1997 which apply the 1991 and 1996 UTU National Agreements to TexMex's Train and Engine Service Employees.

UTU asserts that the Board's Representation Manual (Manual) § 5.1 establishes that the "work-related community of interest" is particularly important to determining the proper craft or class "since it often incorporates some or all of the other factors and is tied directly to 'mutuality of interest in the objectives of collective bargaining.'"

UTU argues that cases since FEC, supra, establish Board precedent for "a single Train and Engine Service Employees craft or class on smaller carriers where cross utilization is more extensive, but not determinative." The UTU says that the "historical patterns" is only one factor relevant to Board craft or class determinations, while the "work-related community of interest" is a particularly important factor to the Board's analysis.

TexMex

The Carrier's position is that all TexMex's Train and Engine Service Employees constitute "the appropriate craft or class for collective bargaining purposes." The Carrier says there is a substantial community of interest among employees in the positions of Locomotive Engineers, Conductors and Trainmen. The Carrier asserts that it is a relatively small regional railroad and to maintain its business, the flexibility of substantial cross- training and cross-utilization among these employees is essential.

Therefore, the Carrier states that Locomotive Engineers frequently perform Conductor and even Trainman functions; Conductors frequently perform Trainman functions; and furloughed Locomotive Engineers are recalled as Conductors. Furthermore, the Carrier says, pursuant to its collective bargaining agreements with UTU, "all train and engine employees receive cross training and perform a wide variety of functions within the train and engine service."

The Carrier asserts that at TexMex "all train and engine service employees have been treated for many years as a single craft or class and have been covered by the same collective bargaining agreements between TexMex and the [UTU] as their . . . certified collective bargaining representative."

The Carrier asserts that all TexMex Locomotive Engineers are listed on the train service employees seniority roster pursuant to collective bargaining arrangements with UTU. Moreover, the Carrier notes that "all of the forty-six Locomotive Engineers currently employed by TexMex were promoted from the position of conductor and all of the 107 Conductors were promoted from the position of Trainman."

FINDINGS OF LAW

Determination of the issues in this case is governed by the Railway Labor Act, as amended, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:

I.

TexMex is a common carrier by railroad as defined in 45 U.S.C. § 151, First.

II.

The BLE and UTU are labor organizations and/or representatives as provided by 45 U.S.C. § 152, Ninth.

III.

45 U.S.C. § 152, Fourth, gives employees subject to its provisions, "the right to organize and bargain collectively through representatives of their own choosing. The majority of any craft or class of employees shall have the right to determine who shall be the representative of the craft or class for the purposes of this chapter."

IV.

45 U.S.C. § 152, Ninth, provides that the Board has the duty to investigate representation disputes and to designate who may participate as eligible voters in the event an election is required.

FINDINGS OF FACT

I.

TexMex is a small regional railroad headquartered in Laredo, Texas, with approximately 540 miles of trackage rights. Pursuant to the Board's request of September 13, 1999, for a list of potential eligible voters, TexMex provided a list of thirty-seven employees with the job titles of "Engineer" and sixty-five employees with the job title of "Conductor."

II.

The Carrier maintains two overlapping seniority rosters for the affected employees. TexMex Circular No. 14, August 9, 1999 is a seniority roster of forty-six Locomotive Engineers employed as of July 1, 1999. TexMex Circular No. 20, August 9, 1999, is a seniority roster of 106 Conductors and two Brake Operators employed as of July 1, 1999. Every Locomotive Engineer, on seniority roster Circular No. 14, also appears on seniority roster Circular No. 20, for Conductors and Brake Operators. Locomotive Engineers contemporaneously earn seniority on both rosters.

III.

UTU represents Locomotive Engineers, Conductors and Trainmen pursuant to Board certifications in Case Nos. R-617, R-1975 and R-4403. See Texas Mexican Railway Company, R-
617 (1940); Texas-Mexican Railway Company, R-1975 (1948); and The Texas Mexican Railway Company, R-4403 (1973).

IV.

TexMex and UTU collective bargaining agreements treat Train and Engine Service Employees as a single craft or class since 1973. TexMex and UTU are parties to the UTU National Agreement of October 31, 1985. They are also parties to the 1991 and 1996 UTU National Agreements, pursuant to collective bargaining agreements reached between TexMex and UTU in 1992 and 1997, respectively. These collective bargaining agreements incorporate the seniority rosters Circular Nos. 14 and 20.

V.

The most recent TexMex/UTU collective bargaining agreement, dated November 1997, increased the salaries of Train and Engine Service Employees by the same percentages and lump sums. Pursuant to the collective bargaining agreements between TexMex and UTU, the hourly rates and some work rules differ among Train and Engine Service Employees based on the particular job the employee performs. Medical and other fringe benefits are virtually identical.

VI.

Based on the TexMex/UTU collective bargaining agreement of October 31, 1985, promotions of qualified employees progress from Trainman to Conductor to Locomotive Engineer. These promotions are mandatory for employees with seniority dates after November 1, 1985. Promoted employees continue to earn seniority on both rosters throughout their careers at TexMex. Thus, according to the affidavit of Fidel E. Hale, III, Assistant Vice President Labor Relations, all Locomotive Engineers currently employed by TexMex were promoted from the Conductor position and all Conductors were promoted from the position of Trainmen. Furthermore, according to Hale, all positions are routinely cross- trained.

VII.

The Hale affidavit states that some Locomotive Engineers, including Conductors who recently qualified as Locomotive Engineers, continue to work as Conductors as needed by the Carrier. Further, Locomotive Engineers are often recalled from furlough to work as Conductors. The affidavits from three Locomotive Engineers supplied by BLE state that some Locomotive Engineers have never worked as Conductors in their entire career at TexMex. However, one of these BLE affidavits confirms that furloughed Engineers are recalled as Conductors.

DISCUSSION

The BLE's application alleged a representation dispute among TexMex Locomotive Engineers. Based on the facts presented in this case, the Board finds that the proper craft or class at TexMex is Train and Engine Service Employees. See FEC, supra.

CONCLUSION AND DISMISSAL

The Board finds the proper craft or class at The Texas Mexican Railway Company is Train and Engine Service Employees. Therefore, the Board dismisses the BLE application. The certifications in Case Nos. R-617, R-1975 and R-4403 are consolidated into a single certification for the craft or class of Train and Engine Service Employees.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copy to:

Mr. Fidel E. Hale, III

Mr. Richard A. Allen

Mr. Byron A. Boyd

Mr. John A. Nadalin

Clinton J. Miller, Esq.

George H. Cohen, Esq.

Harold A. Ross, Esq.

Mr. William C. Walpert