28 NMB No. 35

December 21, 2000

Ralph J. Moore, Jr., Esq.

Counsel for Union Pacific

Shea & Gardner

1800 Mass. Avenue, NW

Washington, DC 20036

Brenda J. Council, Esq.

Senior Counsel

Henry N. Carnaby, Esq.

Labor Counsel

Union Pacific Railway Co.

1416 Dodge Street, 8th Floor

Omaha, NE 68179

Clinton J. Miller III, Esq.

General Counsel

United Transportation Union

14600 Detroit Avenue

Cleveland, OH 44107-4250

James L. Linsey, Esq.

Cohen, Weiss & Simon

330 West 42nd Street

New York, NY 10026

George H. Cohen, Esq.

Counsel for BLE

Bredhoff & Kaiser, P.L.L.C.

1000 Connecticut Ave., NW

Washington, DC 20035-9340

Harold Ross, Esq.

Bro. of Locomotive Engineers

1548 Standard Building

1370 Ontario Street

Cleveland, OH 44113-1740

Re:	NMB Case No. R-6735 (CR-6624)

Union Pacific Railway Company

Gentlemen and Ms. Council:

This determination addresses the March 2, 2000, motion for reconsideration filed by the United Transportation Union (UTU). UTU moves for reconsideration of the National Mediation Board's (NMB or Board) February 19, 2000, decision dismissing the UTU's application for the craft or class of Train and Engine Service Employees at Union Pacific Railway Company (UP or Carrier). Union Pacific Railway Company, 27 NMB 244 (2000). In that decision, the Board adopted the decision of a three-member panel pursuant to the Railway Labor Act (Act), 45 U.S.C. § 152, Ninth.

For the reasons set forth below, the Board grants the motion for reconsideration but upon reconsideration, the Board affirms its decision and does not grant relief.

I.

In Union Pacific, above, the Board adopted the panel's determination and dismissed the UTU's application. The panel, appointed by the Board, issued a determination that present conditions on UP did not justify a single combined craft or class of Train and Engine Service Employees.

UTU argues that the panel "materially failed to apply" the Act, the standards set forth in Board case law, and the Board's Representation Manual (Manual), Section 5.1, "and made material errors of law and fact in making its determination." The UTU specifically cites the panel's failure to follow the Board's directives in craft or class rulings. It states that the Board's adoption of the panel's determination was an abrogation of its statutory responsibility to investigate representation disputes. UTU further argues that the panel's determination is at odds with the Board's decision in The Texas Mexican Railway, 27 NMB 256 (2000). UTU argues that the facts found by the Board in Texas Mexican are indistinguishable from the facts in this case.

The Brotherhood of Locomotive Engineers (BLE) asserts that the UTU's motion should be dismissed because, in referring this matter to a three-member panel, the Board "ceded in full its statutory authority to the Panel to resolve the dispute by decision and order, [thus] the NMB no longer has jurisdiction to review in any manner, including 'reconsideration' – the substance of the Panel's resolution." BLE also argues that even assuming the Board has jurisdiction to consider the motion, reconsideration is not available pursuant to Manual Section 17.0 because "[r]econsideration may not be sought from the Board's . . . dismissal."

II.

Manual Section 17.0 states, in pertinent part:

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.

The Board believes that UTU has stated sufficient grounds for its motion. The BLE's arguments against the motion are without merit. In the normal course of a representation investigation, there would be appeal rights from a craft or class determination. The Board will not afford less due process merely because it has referred resolution of a matter to a three-member panel.

III.

Manual Section 17.0 further states as follows:

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.

The Board has carefully reviewed the submissions by the participants, and the record in this proceeding. This record is insufficient to support the UTU's claims. Therefore, the Board affirms its decision accepting the panel's recommendation and denies the motion for reconsideration.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff

Copies to:

Mr. Charles Little

William A. Bon, Esq.

Mr. Byron A. Boyd, Jr.

Mr. John A. Nadalin

Michael L. Winston, Esq.

Mr. Edward Dubroski

Jonathan P. Hiatt, Esq.

William L. Phillips, Esq.

Michael S. Wolly, Esq.

Mr. John J. Marchant

Arnold M. Zack, Chairman

Richard I. Bloch, Member

Richard R. Kasher, Member