In the Matter of the

Application of the

UNITED STEELWORKERS OF AMERICA

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

involving employees of

WISCONSIN CENTRAL TRANSPORTATION CORPORATION

29 NMB No. 50

CASE NO. R-6864

DISMISSAL-

INSUFFICIENT

SHOWING OF

INTEREST

April 26, 2002

On January 16, 2001, the United Steelworkers of America (USA), filed an application pursuant to 45 U.S.C. §152, Ninth, alleging the existence of a representation dispute involving Wisconsin Central Transportation Corporation (WCTC) employees described as:

Rail Freight Loaders and Handlers, including: Production Foremen. Lead Roadway Mechanic, Machine Operators A, Machine Operator A/Dumper Job, Roadway Mechanic, Machine Operator C, Technician Ore Dock, Millwrights "and such other classifications as maybe be intimately connected with loading, unloading, moving, storing, checking, clerking and handling or moving of ore at the carrier's Escanaba, Michigan, facility."1

The employees are currently unrepresented. For the reasons described below, the National Mediation Board (Board) finds that the proper craft or class is Maintenance of Way Employees and dismisses USA's application for insufficient showing of interest.

PROCEDURAL BACKGROUND

On January 16, 2002, USA filed an application alleging a representation dispute among Rail Freight Loaders and Handlers at WCTC's Escanaba, Michigan, dock facility (Escanaba dock).

The Board assigned Sean J. Rogers as the Investigator.

In response to the USA's application, WCTC filed an initial position statement on January 30, 2002. WCTC asserted that USA was seeking to represent a small subset of a system-wide craft or class.

On February 20, 2002, USA filed its initial position statement and responded that the Escanaba dock was the only dock in the WCTC transportation system. USA argued that the proper craft or class is Rail Freight Loaders and Handlers, not including "employees who perform solely clerical work at Escanaba."

On March 1, 2002, WCTC replied that the Escanaba dock work force should not be "carved out from the WCTC's remaining workforce."

On March 8, 2002, USA responded. On March 20, 2002, WCTC supplemented its initial position statement.

ISSUE

What is the proper craft or class for Rail Freight Loaders and Handlers at WCTC's Escanaba dock?

CONTENTIONS

WCTC

WCTC contends that the proper craft or class for Escanaba dock employees is the system-wide Maintenance of Way Employees craft or class and argues as follows:

WCTC owns four subsidiaries: Wisconsin Central, Ltd., Fox Valley & Western, Ltd., Sault Ste. Marie Bridge Company (SSMB), and Wisconsin Link, Ltd. These rail carriers own and operate approximately 2,464 rail miles. The Board has determined that these subsidiaries constitute the WCTC single transportation system. Wisconsin Central Transportation Corporation, 24 NMB 456 (1997); Wisconsin Central Transportation Corporation, 24 NMB 454 (1997); and Wisconsin Central Transportation Corporation, 24 NMB 307 (1997). In 1997, SSMB purchased the assets of the Duck Creek North Lines which included the Escanaba dock.

The majority of Escanaba dock employees covered by USA's application are assigned to WCTC's Engineering Department. WCTC's Engineering Department employees are functionally integrated and share common work classifications, qualifications, pay, terms and conditions of employment, and a work related community of interest. WCTC's Engineering Department employees perform work traditionally associated with the Maintenance of Way Employees craft or class.

Therefore, Engineering Department employees properly belong to a WCTC system-wide Maintenance of Way Employees craft or class. However, the two clerical employees, for which USA disclaimed representation, and the seven electricians, with the job title Technician, also assigned to Escanaba dock, should not be included in the WCTC system-wide Maintenance of Way Employees craft or class. In addition, the Technicians (Electricians) were represented by the International Brotherhood of Electrical Workers (IBEW) when the Escanaba dock asset was owned by the Union Pacific Railroad Company (UP).

USA

USA contends that the proper craft or class at Escanaba dock is a separate craft or class of Rail Freight Loaders and Handlers as follows:

Escanaba dock employees handle, store, and transfer taconite iron ore pellets for freighter shipment across the Great Lakes to Chicago area steel mills. The employees operate and maintain rail car heavy unloading-equipment. After the pellets are loaded into Great Lakes freighters, the employees move the rail cars.

Escanaba dock is the only ore loading/dock facility owned by WCTC and, "the wall-to-wall unit 'is the grouping in which the employees have associated themselves by voluntary action based on the evidence submitted.'" Georgia Ports Authority, 5 NMB 269, 276 (1970). Moreover, the Escanaba dock employees share a work-related community of interest centered on the unique work associated with the trans-shipment of ore. The Board has "repeatedly certified broad classes and crafts of dockworkers."

Therefore, the proper craft or class of all Escanaba dock employees is Rail Freight Loaders and Handlers, except the clerical employees.

FINDINGS OF LAW

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

I.

Wisconsin Central Transportation Corporation is a common carrier by rail as defined in 45 U.S.C. § 151.

II.

United Steelworkers of America is a labor organization and/or representative as provided in 45 U.S.C. § 152, Ninth.

III.

45 U.S.C. § 152, Fourth, gives employees subject to the provision "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 purposes of this chapter."

IV.

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

FINDINGS OF FACT

I.

Escanaba dock

James P. Rogers, WCTC Assistant Superintendent, Michigan Service Unit, is responsible for WCTC operations on the Michigan upper peninsula, in northwest Wisconsin, at the Gladstone, Michigan, switching terminal yards, and at Escanaba dock. He describes the work at Escanaba dock as follows:

Taconite iron ore pellets are shipped to Escanaba dock by rail from the Empire Iron and the Tilden Mines on the Marquette range in 100 car trains. A remote controlled switch engine positions 50 rail cars on the rotary dumper track and then a positioner arm moves three cars into the rotary dumper. The rotary dumper discharges the taconite into the dumper building where conveyors carry the taconite to Great Lakes ore freighters or a dockside stockpile. Stockpiled taconite is loaded into Great Lake ore freighters by a bucket wheel reclaimer and conveyors.

The process is largely automated so that Escanaba dock employees primarily operate or maintain the large machinery or perform clerical tasks.

II.

WCTC's Engineering Department

WCTC is a single transportation system composed of four subsidiaries: Wisconsin Central, Ltd., Fox Valley & Western, Ltd., Sault Ste. Marie Bridge Company and Wisconsin Link, Ltd. System-wide maintenance of way services are provided by the WCTC's Engineering Department to the four subsidiaries. The Escanaba dock employees that USA seeks to represent are part of WCTC's Engineering Department. Rogers says that the work of WCTC's Engineering Department employees is work traditionally performed by the Maintenance of Way Employees craft or class.

III.

WCTC's Engineering Department Employees'

Pay, Benefits and Working Conditions

Mary J. Dutcher, WCTC Human Resources Manager, states that the Escanaba dock employees which USA seeks to represent "share the same pay grades, benefits package, personnel policies and work and safety rules" as WCTC's Engineering Department employees system-wide. Her statement is supported by WCTC pay and personnel policy documents establishing uniformity in pay, benefits and personnel policies throughout WCTC's Engineering Department.

Dutcher also states that:

[A]s of the Cutoff Date, 31 out of the 52 positions identified by [USA] had been abolished, and the incumbent employees laid off, because of the closure of the LTV Steel Company, Inc.'s steelmaking operations. Additionally, as of the Cutoff Date, nine (9) of those employees had exercised bumping rights to take positions at other locations on WCTC, and were no longer located at the ore dock.

Dutcher's statement and WCTC's personnel policy documents establish that Escanaba dock employees may exercise bumping and transfer rights in WCTC's Engineering Department system-wide.

IV.

WCTC's "Engineering Department Employees'

Job Titles and Qualifications"

Dutcher provided the WCTC document entitled "Engineering Department Job Titles and Qualifications." The document lists 75 job titles within the WCTC's Engineering Department sub-units which include: Maintenance, Construction, Production, Bridge, Structures, Roadway and Ore Dock. All of these Engineering Department sub-units perform maintenance of way work only. Each job title is cross-referenced to 39 "Qualifications." Some qualifications describe simple skills, for example, "[v]alid driver's license" and "[a]bility to wear respirator." Most qualifications describe more complex skills traditionally required of the railroad maintenance of way occupation, for example, "[b]oom crane safety qualified"; "[e]xperience in performing day-to-day bridge ore structures maintenance functions and supervising employees"; and "[a]bility to install signal and communication equipment."

The document establishes that Engineering Department employees assigned to Escanaba dock must have the same qualifications as employees assigned elsewhere in the WCTC system with the same job title. However, the only additional qualification Escanaba dock employees must have is: "[k]nowledge of and experience in operating and repairing Ore Dock equipment."

V.

Technicians (Electricians)

Dutcher's statement and the WCTC document "Engineering Department Job Titles and Qualifications," establish that WCTC's Technicians (Electricians) must have specialized electrical training and they are paid at the pay grade level 32 system-wide. Specifically, the specialized electrical qualification is described as follows:

Must have knowledge of power & lighting circuits to 4160 Volts, PLC drive, variable AC-DC controllers, AC-DC motor repair and operation, both single and three-phase wiring, use of metering and testing equipment and electrical calculations. Circuit bending and all aspects of grounding are necessary.

In addition, the evidence establishes that when the Escanaba dock asset was owned by the UP, these Technicians (Electricians) were represented by the IBEW.

VI.

Clerical Employees

USA's February 20, 2002, submission disclaims representation of Escanaba dock clerical employees. Moreover, the Board certified the Transportation Communications International Union (TCU) as the representative of WCTC Clerical Office, Station and Storehouse Employees on April 12, 2002. Wisconsin Central Transportation Corporation, 29 NMB 274 (2002) (WCTC).

DISCUSSION

The Board makes craft or class determinations based on a work-related community of interest. National Airlines, Inc., 27 NMB 550 (2000); American Airlines, Inc., 26 NMB 106 (1998); LSG Lufthansa Services, Inc., 25 NMB 96 (1997). In determining the proper craft or class for employees, the Board is guided by the Representation Manual (Manual) Section 5.1 which states:

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.

The record establishes that Escanaba dock employees are part of the WCTC's system-wide Engineering Department. Furthermore, Escanaba dock employees receive the same pay and benefits, and are employed under the same working conditions, including bumping rights throughout the WCTC system, as all other WCTC Engineering Department employees. However, WCTC Technicians (Electricians) require special training and they have a history of collective bargaining representation as a separate craft or class from other WCTC Engineering Department employees. The history of collective bargaining representation of Technicians (Electricians) establishes that these employees have been part of a separate Electricians craft or class. Finally, a recent Board determination establishes that all WCTC's Clerical employees are now represented by TCU system-wide. WCTC, above.

USA argues that the Board's determination of the proper craft or class in this case must follow the determination in Georgia Ports Authority, above. In that case, the Board found a "wall-to-wall" craft or class of Marine Dock, Warehousemen and Related Employees was proper for representation purposes. However, the Georgia Ports Authority craft or class was very broadly defined, including, for example, locomotive engineers, yard conductors and switchmen, based on a "natural kinship of interest among" all the dock workers. Georgia Ports Authority, above, at 276. In addition, the marine dock employees were employed by one sub-unit of the State's ports authority which included six independent port terminal facilities.2 In this application, USA seeks to represent only the Escanaba dock employees, who are all part of WCTC's system-wide Engineering Department. For these reasons, USA reliance on Georgia Ports Authority, above, is misplaced.

The Board finds that there is a work related community of interest among WCTC employees assigned to the Engineering Department. In addition, the Board finds that the work performed by WCTC's Engineering Department, including the employees assigned to Escanaba dock, is maintenance of way work only. Therefore, the proper craft or class of WCTC's Engineering Department, excluding for the reasons stated above, Technicians (Electricians) and Clerical employees, is Maintenance of Way Employees. The Board also finds that USA's application to represent Rail Freight Loaders and Handlers at Escanaba dock covers only a portion of the WCTC's Maintenance of Way Employees craft or class.

FINDINGS AND DISMISSAL

The investigation establishes that USA failed to support its application with the required number of authorizations from employees in the WCTC's Maintenance of Way Employees craft or class pursuant to 29 C.F.R. § 1206.2(b). Therefore, the Board finds no basis on which to proceed. USA's application is dismissed subject to 29 C.F.R. § 1206.4(b)(2).

By direction of the NATIONAL MEDIATION BOARD.

Benetta Mansfield

Chief of Staff

Copy to:

Robert S. Hawkins, Esq.

Mr. Roger MacDougall

David Jury, Esq.

Mr. Anthony J. Pascarella