28 NMB No. 46

February 9, 2001

Devki K. Virk, Esq.

Counsel for BLE

Bredhoff and Kaiser, PLLC

805 15th Street, NW., Suite 1000

Washington, DC 20005

Harold A. Ross, Esq.

Counsel for BLE

1548 Standard Building

1370 Ontario Street

Cleveland, OH 44113-1740

Mr. William C. Walpert, Vice President

Brotherhood of Locomotive Engineers

1370 Ontario Street

Cleveland, OH 44113-1701

Re:	NMB Case No. R-6799

Terminal Railroad Association of St. Louis

Gentlemen and Ms. Virk:

This determination addresses the Brotherhood of Locomotive Engineers' (BLE) Motion for Reconsideration of the Board's decision in Terminal Railroad Association of St. Louis, 28 NMB 187 (2000). The BLE filed the motion on December 26, 2000. The United Transportation Union (UTU) filed its opposition to the Motion for Reconsideration on January 5, 2001. The Carrier takes no position on the Motion for Reconsideration and has filed no response.

For the reasons set forth below, the BLE's Motion for Reconsideration is granted. Upon reconsideration, the Board affirms its decision in Terminal Railroad, above, and does not grant relief.

I.

In Terminal Railroad, above, the Board found that the proper craft or class is Train and Engine Service Employees. The UTU's application was converted to NMB Case No. R-6799 and an election was authorized. The Board scheduled the ballot count for February 9, 2001.

The BLE argues that the Board's majority misapplied the law in Terminal Railroad, above, because it is "settled law that the Board would approve a radical departure from the historic pattern and establish a new combined craft of engine and train service employees only if the petitioner could . . . establish[ ] . . .that the carrier 'cross-utilizes' locomotive engineers and train service employees to a significant and material extent." The BLE argues that cross-utilization is the "critical factual predicate" to establishing a combined craft or class and in the instant case cross-utilization is de minimus. The BLE also contends that the Board's ruling is flawed because it relies upon statistics inconsistently and in deceptive ways. The BLE states that the Board's ruling in Terminal Railroad, above, is likely to result in instability and chaos. In addition, the BLE argues that the Board's reliance on the community of interest between trainmen and engineers is misplaced because there is insufficient evidence of material and significant cross-utilization. Moreover, the BLE asserts that even if community of interest is a relevant consideration in a craft or class determination, the facts in this case do not support a finding that there is a sufficient community of interest between trainmen and engineers to warrant a combined craft or class.

The BLE, therefore, requests that the Board grant the Motion for Reconsideration, reverse its position, and dismiss the UTU's application.

The UTU states that the BLE's Motion for Reconsideration is merely a reassertion of factual and legal arguments previously presented. Therefore, pursuant to the Board's Representation Manual (Manual) Section 17.0, the Board should deny the BLE's request for relief. In addition, UTU argues that the election should proceed as scheduled because both the Railway Labor Act (RLA) and the Manual provide for the prompt settlement of representation disputes. 45 U.S.C. § 152, Ninth; Manual Section 5.1. Therefore, the public interest weighs against granting the Motion for Reconsideration and delaying resolution of this matter further.

II.

Manual Section 17.0 states:

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.

The Board has reviewed the BLE's submissions in support of its motion and finds insufficient grounds to grant the relief sought.

The BLE bases its Motion for Reconsideration in large part on the argument that significant, material cross-utilization is a "critical factual predicate" to combining a craft or class. The Board explicitly rejected this argument in Terminal Railroad, above. In Terminal Railroad, above, the Board set forth the criteria it considered in making craft or class determinations:

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. . . . 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.

Manual Section 5.1 (emphasis supplied). The Board further stated that "[c]raft or class determinations are not limited to measuring the extent of cross-utilization." Terminal Railroad, above at 200.

The BLE also bases its Motion for Reconsideration on the following arguments: there is insufficient evidence of a community of interest between trainmen and engineers; the combining of the two crafts or classes will result in unstable and chaotic collective bargaining relationships; and the Board relies upon statistics inconsistently and in deceptive ways.

In Virgin Atlantic Airways, 21 NMB 183, 186 (1994), the Board stated:

[It] recognizes the vital importance of the consistency and stability of the law as embodied in . . . NMB determinations . . . . Accordingly, the Board does not intend to reverse prior decisions on reconsideration except in the extraordinary circumstances where, in its view, the prior decision is fundamentally inconsistent with the proper execution of the NMB's responsibilities under the Railway Labor Act.

The Board acknowledges that the BLE may disagree with the Board's assessment of the evidence. However, absent a showing that the prior decision is fundamentally inconsistent with the proper execution of the Board's responsibilities under the RLA, the Board will not grant the requested relief. American Trans Air, Inc., 28 NMB 260 (2001); Virgin Atlantic Airways, above.

CONCLUSION

The Board has reviewed the BLE's Motion for Reconsideration and the UTU's response. The Board grants the Motion for Reconsideration but upon reconsideration, the Board affirms its decision and denies the relief requested. The BLE has failed to demonstrate a material error of law or fact or circumstances in which the NMB's exercise of discretion to modify the decision is important to the public interest. The BLE merely reasserts arguments made in previous submissions.

By direction of the NATIONAL MEDIATION BOARD.

________________________________

Francis J. Duggan, Chairman

________________________________

Magdalena G. Jacobsen, Member

______________________________________________________________

Member DuBester:

I would grant the relief requested by the BLE's Motion for Reconsideration.

_______________________________

Ernest W. DuBester, Member

Copies to:

Mr. R.S. Finley

Ralph J. Moore, Jr., Esq.

Donald J. Munro, Esq.

James L. Linsey, Esq.

Clinton J. Miller, III, Esq.

Mr. J.R. Cumby