29 NMB No. 13

December 14, 2001

Mr. Kevin V. Schieffer, President & CEO

Mr. Steve O. Scharnweber, Vice Pres.

Transportation & Engineering

Dakota, Minnesota & Eastern Railroad

337 22nd Avenue S.

Brookings, SD 57006

Mr. Daniel L. Goodwin

Chief Mechanical Engineer

Dakota, Minnesota & Eastern Railroad

420 Commercial Street, NE.

Huron, SD 57350

Mr. Paul Swanson

Director of Organizing

Brotherhood of Maintenance of Way Employes

10630 Cherry Street

Thornton, CO 80233

Re:	Case No. R-6843

Dakota, Minnesota & Eastern

Railroad/BMWE/(Maintenance of Way Employees)

Case No. R-6844

Dakota, Minnesota & Eastern

Railroad/BMWE/(Mechanics and Mechanic Helpers)

This determination addresses the Brotherhood of Maintenance of Way Employes' (BMWE or Organization) appeals of Investigator Eileen M. Hennessey's eligibility rulings in Case Nos. R-6843 and R-6844 and the Dakota Minnesota and Eastern Railroad's (DM&E or Carrier) appeal in R-6843. For the reasons discussed below, the appeals are denied.

I. PROCEDURAL BACKGROUND

On September 22, 2001, the BMWE filed applications pursuant to 45 U.S.C. § 152, Ninth, alleging representation disputes among the Maintenance of Way Employees and among the Mechanics and Mechanic Helpers of the DM&E. These cases were docketed as Case Nos. R-6843 and R-6844, respectively. The Board found disputes existed on October 31, 2001, and authorized elections. Ballots were mailed in both cases on November 16, 2001, and the counts are scheduled for December 14, 2001.

A. Case No. R-6843

On October 20, 2001, the BMWE filed challenges and objections in this case. In pertinent part, the BMWE challenged nine (9) employees as management officials and argued that five (5) employees working as signal maintainers should be excluded from the craft or class because they do not share a work-related community of interest with maintenance of way employees.

On November 2, 2001, the Carrier responded that five (5) of the nine (9) employees challenged as management officials are subordinate officials and, therefore, eligible. The Carrier relied on US Airways, 28 NMB 50, 60 (2000) and Mesaba Airlines, 26 NMB 227 (1999). The Carrier stated that five (5) signal employees should be included with maintenance of way employees because these employees share a community of interest. DM&E stated that "there is no rational basis whatsoever for carving the signal employees out of the craft."

The BMWE supplemented its objections on November 15, 2001. The BMWE stated that four (4) employees relevant to this appeal fall within a separate class or craft of subordinate officials. Seaboard Air Line Railway Co., 1 NMB 167 (1940). The BMWE argued that signal employees are outside of the craft or class. The BMWE contended that there is a large difference in the duties, responsibilities and training of signal employees and maintenance of way employees.

The DM&E filed a response on November 21, 2001. DM&E argued that signal employees should be included in the Maintenance of Way Employees craft or class because track and structure maintenance of way employees, roadway mechanics and signal employees are part of the same department, are subject to the same terms and conditions of employment, (including wage scales, health and welfare benefits, vacation and leave, overtime requirements, disciplinary rules and work rules) and must pass the same tests on rules and regulations. Signal employees are often required to do their own track work in signal locations. Track employees are required in many instances to do minor signal work to accomplish their duties. The Carrier reiterated its contention that the four (4) employees are not management officials but subordinate officials.

On November 30, 2001, Investigator Hennessey issued her rulings in Case No. R-6843 that four (4) of the nine (9) employees originally challenged by the BMWE as management officials were eligible, and that the signal employees were not eligible. The BMWE appealed the ruling that William H. McKillup, Gregory J. Christenson, Larry H. Veldhuisen and James A. Lappe were eligible to vote. The Carrier responded to the Organization's appeal on December 7, 2001. The Carrier appealed the Investigator's ruling regarding the signal employees on December 5, 2001. The BMWE did not file a response to this appeal.

B. Case No. R-6844

On October 8, 2001, DM&E filed an initial position statement and list.

On October 20, 2001, the BMWE filed challenges and objections in this case. The BMWE challenged seven (7) individuals on the basis that they are management officials.

On November 1, 2001, DM&E responded that six (6) of the challenged individuals should remain eligible because they are subordinate officials and closely resemble working foremen, a position which is part of the craft or class. The DM&E agreed that one (1) individual was a management official.

The BMWE supplemented its objections on November 15, 2001. The BMWE stated that the six individuals fall within a separate class or craft of subordinate officials that "supervise, rather than work with, the maintenance of way employees."

The DM&E filed a reply on November 21, 2001, reiterating its previous arguments.

On November 30, 2001, Investigator Hennessey ruled that the six (6) employees were eligible. The BMWE appealed this ruling. The Carrier responded to the appeal on December 7, 2001.

II. BMWE's Position

The BMWE states that the Investigator's rulings are arbitrary and capricious and contrary to fact and law. The craft or class of subordinate officials is long established in the railroad industry. Texas & Pacific Railway Co., 1 NMB 341 (1947). The BMWE contends that the Board has held that the dispositive traits for membership in a subordinate official craft or class are the ability to determine when and how track maintenance is performed and the employee's supervisory responsibility. Ontario Midland Railroad, 10 NMB 18, 22 (1982).

In Case No. R-6843, BMWE also asserts that the Investigator's ruling is contrary to the Board's Representation Manual (Manual) Section 5.1, which states in part, "prior decisions of the Board in regard to the craft or class on the same Carrier shall be binding upon the Investigator." The BMWE cites to an Investigator's eligibility ruling in a DM&E case involving the same craft or class. That ruling stated "Lappe and Hanson will not be added to the list. This is not a determination that they are officials of the Carrier. The may be found to be part of another craft or class, possibly Supervisors of Maintenance of Way Employees, or upon further investigation, they may in fact be officials." (Cognata Letter R-6489).

III. DM&E's Position

DM&E states that the Board analyzes whether the work- related community of interest exists between the subordinate officials and the craft or class. The Carrier argues that the BMWE's position that subordinate officials are in a separate craft or class states a per se rule not supported by Board precedent. DM&E states that there was no ruling in Case No. R-6489 that any employee was a subordinate official. Finally, DM&E argues that the Board's focus should be on present day circumstances citing Birmingham Southern Railroad, 16 NMB 55 (1988).

The Carrier argues that signal employees should be included in the Maintenance of Way craft or class. The DM&E's Engineering Department consists of three (3) identifiable groups, maintenance of way, mechanical, and signal employees. The Investigator's ruling excludes signal employees from the Maintenance of Way craft or class but includes the mechanical employees. The Carrier argues that all three (3) groups share a significant community of interest and that signal employees share a greater community of interest with maintenance of way employees than the mechanical employees (roadway mechanics).

DISCUSSION

A.

The Board has recognized subordinate official crafts and classes. Texas & Pacific Railway, above. However, "the Board makes its craft or class determinations on a case by case basis, as what is true on one carrier may not be true on another." Consolidated Rail Corp., 13 NMB 298, 304 (1986). The Board has frequently held that subordinate officials can be a part of the craft or class with the employees they supervise. United Airlines, Inc., 28 NMB 533 (2001); US Airways, 26 NMB 359 (1999).

It is undisputed that the employees at issue have supervisory authority. All of the employees perform line work. The BMWE's appeal argues that supervisory authority renders an individual ineligible for a Maintenance of Way craft or class.

Manual Section 5.1 sets forth the criteria to be considered in making craft or class determinations including:

[T]he 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.

There is no evidence that the craft or class Supervisor/Mechanics and Mechanics Helpers or Supervisor/Maintenance of Way existed on the DM&E. None of the employees at issue on the DM&E has the ability to commit carrier funds or create carrier policy. These employees perform functions and duties which are in the Maintenance of Way or Mechanics and Mechanic Helpers craft or class and share a work- related community of interest with the other members of the craft or class.

The BMWE's argument that the Investigator's ruling in Case No. R-6843 is contrary to Manual Section 5.1 is without merit. The Investigator's ruling cited by the BMWE is not a Board decision, it is an Investigator's ruling. The Board never addressed the merits of those employees' eligibility. Dakota, Minnesota and Eastern Railroad Co., 24 NMB 329 (1997).

B.

The craft or class of Signalmen is a well recognized, distinct craft or class in the railroad industry. Kansas City Terminal Co., 2 NMB 238 (1953). There is some overlap of duties, but not enough to support combining signalmen into the Maintenance of Way craft or class. The Board determined that the craft or class of Signalmen existed in Dakota, Minnesota & Eastern Railroad Corp., 16 NMB 126 (1989). The Board conducted an election among Signalmen on the DM&E in1991. Dakota, Minnesota & Eastern Railroad Corp., 18 NMB 344 (1991). The Board also held an election among Maintenance of Way Employees on the DM&E in 1997 in which signalmen were excluded. Dakota, Minnesota & Eastern Railroad, 25 NMB 358 (1998). There is no evidence that the job duties of signalmen on the DM&E have changed during the intervening time period.

The Board "makes its craft or class determinations on a case by case basis." Consolidated Rail Corp., above. The Board is guided by the factors in Manual Section 5.1, not a carrier's organizational structure.

CONCLUSION

The record establishes that there is no basis for the Board to overrule the Investigator's rulings that signal employees are not eligible in Case No. R-6843 (Maintenance of Way), and subordinate officials are eligible to vote in Case Nos. R-6843 and R-6844. Therefore, the Carrier's and the BMWE's appeals are denied. The counts will take place as scheduled at 2 p.m., on December 14, 2001.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff