In the Matter of the

Application of the

UNITED TRANSPORTATION UNION

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

involving employees of

MARYLAND & PENNSYLVANIA RAILROAD COMPANY

YORKRAIL, INC.

YORK RAILWAY COMPANY

29 NMB No. 84

CASE NO. R-6907

(File No. CR-6747)

FINDINGS UPON

INVESTIGATION- AUTHORIZATION OF ELECTION

September 12, 2002

This determination addresses an application filed by the United Transportation Union (UTU). The UTU seeks to represent the craft or class of Train and Engine Service Employees and requests the National Mediation Board (Board) to investigate whether Maryland & Pennsylvania Railroad Company (MPA) and Yorkrail, Inc. (YKR) are operating as a single transportation system, York Railway Company (YRC).

The investigation establishes that MPA and YKR constitute a single transportation system known as the York Railway Company. The appropriate craft or class is Train and Engine Service Employees.

PROCEDURAL BACKGROUND

On March 1, 2002, the UTU filed an application alleging a representation dispute involving the Train and Engine Service Employees of the "Maryland & Pennsylvania Railroad (n[ow] k[nown] a[s] York Railway Company.") The UTU asserted YRC is the single transportation system created by the merger of MPA and YKR.1 The application was assigned NMB File No. CR-6747.

The Board assigned Eileen Hennessey to investigate.

On March 15, 2002, the UTU provided an initial position statement. On March 18, 2002, YRC provided a list of 16 potential eligible voters. On March 25, 2002, the International Brotherhood of Teamsters (IBT) submitted an initial position statement. On April 4, 2002, the Board requested that the Carriers provide information. The Carriers provided this information on April 17, 2002. On April 25, 2002, the IBT and the UTU each filed submissions. The Board requested additional information from the Carriers on May 15, 2002. The Carriers provided this information on June 7, 2002. The IBT and UTU filed separate responses on June 19, 2002.

ISSUES

Are MPA and YKR a single transportation system? If so, what is the appropriate craft or class?

CONTENTIONS

UTU

The UTU contends as follows:

The appropriate craft or class is Train and Engine Service Employees. Train and Engine Service is the recognized group on both MPA and YKR. The UTU collective bargaining agreement on MPA refers to the craft or class as Train and Engine Service. Similarly, the IBT agreement on YKR also refers to the craft or class as Train and Engine Service. Not only are Train and Engine Service Employees represented as a group, there is little differentiation between "enginemen" and "conductors." Crews are required to perform any train and engine service work for which they are qualified. All enginemen come from the ranks of trainmen and trainmen must accept promotion. Under the MPA/UTU agreement and YKR/IBT agreement there is little or nothing to differentiate between train service and engine service employees; they receive the same wages, holidays and sick leave, and use the same locker facilities.

With regard to the single system issue, YRC is a single entity comprised of the YKR and MPA. YRC is held out and marketed as a single railroad. The YRC was formed through the merger of MPA and YKR. The YRC was sold to Genesee & Wyoming, Inc., in early 2002. Genesee & Wyoming, Inc. operates YRC as a single railroad.

IBT

The IBT contends as follows:

The merger of YKR and MPA to form YRC has not resulted in a single merged carrier for representation purposes. If the Board determines that a single transportation system exists, then it is proper to have separate crafts or classes of Engine Service Employees and Train Service Employees on the Carrier.

YKR and MPA were merged on December 1, 1999, forming YRC. This merger has had little practical effect on the operations of either the YKR or the MPA. There is no unity of labor relations functions between MPA and YKR. YKR and MPA have separate crew rosters. There is no combined workforce between YKR and MPA. Contact between YKR and MPA crews is minimal because each carrier serves separate customers. Therefore, YRC is not a single transportation system and the UTU's application should be dismissed.

Carriers

The Carriers provided the information requested by the Board but did not take a position on the single system issue or the craft or class issue.

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.

MPA , YKR, and YRC are common carriers as defined in 45 U.S.C. § 151.

II.

UTU and IBT are labor organizations and representatives as provided by 45 U.S.C. § 151, Sixth, and § 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. In determining the choice of the majority of employees, the Board is "authorized to take a secret ballot of the employees involved, or to utilize any other appropriate method of ascertaining the names of their duly designated and authorized representatives . . . by the employees without interference, influence, or coercion exercised by the carrier."

STATEMENTS OF FACT

Corporate Transactions

Yorkrail Inc. (YKR) and the Maryland and Pennsylvania Railroad Company (MPA) were subsidiaries of Emons Transportation Group, Inc. (Emons). On December 1, 1999, Emons merged YKR and MPA to form a new company, York Railway Company (YRC). MPA and YKR operate in the same geographic area, York, Pennsylvania. The tracks of MPA and YKR meet and cross at several locations.

On September 19, 2000, the Railroad Retirement Board determined that "the status of Yorkrail, Inc. and Maryland and Pennsylvania Railroad Company as employers under the Act is terminated as of [December 1, 1999]," the date MPA and YKR were merged to form YRC.

On February 22, 2002, Emons and its subsidiaries, including YRC, were sold to Genesee & Wyoming, Inc. YRC is a wholly-owned subsidiary of Genesee & Wyoming. YRC directly reports to the management of the Rail Link Region in Jacksonville, Florida.

Rail Link

Rail Link, Inc., is a wholly-owned subsidiary of Genesee & Wyoming, Inc. Rail Link is not a common carrier. Rail Link provides contract railroad switching and related services to private industries such as paper mills, chemical plants, and mining operations.

Commonwealth Railway, Inc., Suffolk, Virginia; Carolina Coastal Railway, Inc., Pinetown, North Carolina; and Talleyrand Terminal Railroad Company, Inc., Jacksonville, Florida are wholly-owned subsidiaries of Rail Link. These three subsidiaries are common carrier shortline railroads operated as separate corporate entities. Each has its own management that reports to the Vice President-Railroad Operations, Rail Link. The Vice President Railroad Operations reports to the President of Rail Link. The President of Rail Link reports to the Genesee & Wyoming President & COO-North American Operations.

Corpus Christi Terminal Railroad, Inc., Corpus Christi, Texas; Golden Isles Terminal Railroad, Inc., Brunswick, Georgia; Savannah Port Terminal Railroad, Inc., Garden City, Georgia; Louisiana & Delta Railroad, Inc., New Iberia, Louisiana; and York Railway Company, Inc., York, Pennsylvania, are all wholly-owned subsidiaries of Genesee & Wyoming, Inc. These five companies are common carrier shortline railroads operated as separate corporate entities. These properties are designated by Genesee & Wyoming to be part of the Rail Link Region. Each company has its own management that reports to the Vice President-Railroad Operations except York Railway Company. The General Manager of the York Railway Company reports directly to the President of Rail Link.

Marketing and Logos

None of the eight railroads in the Rail Link Region interconnect, hence, there is no combination of routes or schedules. All are marketed as individual entities. There is no cross-utilization of employees, and specifically, YRC employees are not used at any other Rail Link location.

All business transactions are marketed and performed under the name YRC. The timetable effective on February 1, 2000 is published for "York Railway Company" and includes the "MPA Subdivisions" and "YKR Subdivisions." YRC has approximately five locomotives with MPA markings, approximately seven locomotives with YKR markings, and one locomotive with YRC markings. After its sale to Genesee & Wyoming, YRC developed a new logo. Genesee & Wyoming companies all have a similar logo with the same colors. The only difference is the name and initials of the individual subsidiary incorporated into the logo design.

Labor Relations

Labor relations and personnel functions are in the process of being coordinated through Rail Link. Depending on the issue, the matter may be handled locally, handled by Rail Link senior management, or may be "outsourced."

MPA and YKR Collective Bargaining

The MPA was a Class III carrier operating 26 miles of track in York and Hanover, Pennsylvania. The UTU is the certified collective bargaining representative of the following crafts or classes: Engineers, Maryland & Pennsylvania R.R. Co., 9 NMB 132 (1981); Conductors, Maryland & Pennsylvania R.R. Co., 9 NMB 134 (1981); Brakemen, Maryland & Pennsylvania R.R. Co., 9 NMB 136 (1981); Carmen, Maryland & Pennsylvania R.R. Co., 9 NMB 198 (1982).

The YKR was also a Class III carrier operating 16 miles of track in York and Hanover, Pennsylvania. The IBT is the certified collective bargaining representative of Train and Engine Service Employees, YorkRail, Inc., 26 NMB 171 (1999).

The YKR/IBT and the MPA/UTU collective bargaining agreements provide that YKR and MPA employees may be commingled. Rail Link states that this practice has decreased recently, with the hiring of an additional YKR employee on January 14, 2002.

There are separate crew rosters maintained for MPA and YKR train and engine service employees, and these employees work respectively on the former MPA and YKR properties. Through a local agreement between YRC and IBT, when a vacancy existed on a YKR/IBT assignment and there was not an IBT employee available to fill it, an employee from the MPA/UTU extra board was used. During the period of November 23, 2001 through February 23, 2002, this took place 40 times. During this same period, no YKR employee worked on an MPA assignment. An extra board employee was hired on the former YKR sometime after December 20, 2001, as the result of a grievance filed by the IBT. Thereafter, the use of MPA extra board employees on YKR assignments diminished.

During the 90-day period preceding the cut-off date, on a daily basis Monday thru Friday, the MPA crews operated on the former YKR trackage for the purpose of picking up and setting off rail cars in interchange at the Lincoln rail yard. The MPA crews do not provide service to any customers located on the former YKR. During this same time period, no YKR crews operated on the former MPA trackage.

Article V, Section C, of the MPA/UTU Agreement states that "[a]ny train crew may perform any type of train and engine service for which it is qualified." Also, under the MPA/UTU agreement "Trainmen must seek promotion to qualified Engineers within 45 days of notice by the Carrier." Article VII, 7.3. All crew members, both trainmen and engineers, are responsible for removing objects, rerailing and clearing switches, and inspecting cars. Article XVIII, 18.1-3. Any employees hired after 1993 have a common seniority date for both train and engine service. Article VII, 8.1.

Both engineers and conductors on MPA receive the same pay including raises and lump sum payment, holidays, sick leave, hours of work, vacations, and insurance. There is a single locker room for both groups of MPA employees.

The collective bargaining agreement between YKR and the IBT states "[t]he Bargaining Unit covered by this agreement shall consist of all employees of the Carrier engaged as engineers, conductors or brakemen who are represented by the Union." Article 2, Section 1. Under the collective bargaining agreement between YKR and the IBT, engineers and conductors are paid the same wage rate, and receive the same holidays, vacation, and sick leave. Conductors and engineers are subject to the same overtime, report and call-in hours of work, and insurance benefits.

Under Article 31 of the YKR/IBT Agreement, "[w]ithin two years of date of hire, all conductors must qualify as locomotive engineers and engineers not qualified as conductors must so qualify. All brakemen not qualified as conductors will, as the needs of the service require as determined by the Carrier, qualify as conductors."

DISCUSSION

I.

The Board's Authority

45 U.S.C. § 152, Ninth, authorizes the Board to investigate disputes arising among a carrier's employees over representation and to certify the duly authorized representative of such employees. The Board has exclusive jurisdiction over representation questions under the RLA. Switchmen's Union v. National Mediation Board, 320 U.S. 297 (1943); General Comm. of Adjustment v. M.K.T. R.R., 320 U.S. 323 (1943). In Air Line Pilots Ass'n, Int'l v. Texas Int'l Airlines, 656 F.2d 16, 22 (2d Cir. 1981), the court stated, "the NMB is empowered to . . . decide representation disputes arising out of corporate restructurings."

II.

Single Transportation System

The Board finds a single transportation system only when there is substantial integration of operations, financial control, and labor and personnel functions. American Airlines and Reno Air, 26 NMB 467 (1999); AirTran Airways and AirTran Airlines, 25 NMB 429 (1998). The Board has noted that a substantial degree

of overlapping ownership, senior management, and boards of directors is critical to finding a single transportation system. Precision Valley Aviation, Inc., d/b/a Precision Airlines/Valley Flying Serv., Inc., d/b/a Northeast Express Reg'l Airlines, 20 NMB 619 (1993).

The Board adopted its current criteria for single carrier status in the railroad industry in Missouri Pacific R.R., 15 NMB 95, 108 (1988). In that decision, the Board, quoting its earlier decision in Trans World Airlines/Ozark Airlines, 14 NMB 218 (1987), adopted the following factors for evaluating when two or more carriers' operations have or will be integrated into a single transportation system.

Whether the two systems are held out to the public as a single carrier . . . whether a combined schedule is published; how the carrier advertises its services; whether reservation systems are combined; whether tickets are issued on one carrier's stock; if signs, logos and other publicly visible indicia have been changed to indicate only one carrier's existence; whether personnel with public contact were held out as employees of one carrier; and whether the process of repainting . . . equipment, to eliminate indications of separate existence, has been progressed.

Other factors investigated by the Board seek to determine if the carriers have combined their operations from a managerial and labor relations perspective. Here the Board investigates whether labor relations and personnel functions are handled by one carrier; whether there are a common management, common corporate officers and interlocking Boards of Directors; whether there is a combined workforce; and whether separate identities are maintained for corporate and other purposes.

14 NMB at 236. See also Wisconsin Cent. Transp. Corp., 24 NMB 307, 314 (1997); Wisconsin Cent. Ltd./Fox Valley & Western Ltd., 21 NMB 431, 442 (1994); Fox Valley & Western, Ltd., 21 NMB 112, 126 (1994); Guilford Rail Division, 18 NMB 413, 431-32 (1991) (applying the same standards to a railroad merger). When applying these standards, the Board has emphasized that the most persuasive factor is whether operations have been merged or are in the process of a merger. Missouri Pacific R.R., 15 NMB 95, 107 (1988).

YRC is held out to the public as a single carrier with two subdivisions, MPA and YKR. Labor relations for YRC are or will be coordinated through Rail Link. The General Manager of YRC reports to the President of Rail Link. YRC has its own logo. In the 90-day period prior to the cut-off date, MPA employees filled in for vacancies on YKR crews 40 times. During the 90-day period preceding the cut-off date, on a daily basis Monday thru Friday, the MPA crews operated on the former YKR trackage for the purpose of picking up and setting off rail cars at the Lincoln rail yard.

The fact that there are separate rosters for the MPA and YKR does not offset the substantial integration of operations, financial and managerial control and personnel and labor relations of these two operations to form the YRC. See Missouri Pacific, above; Texas Pacific -Missouri Pacific Terminal R.R. of New Orleans, 11 NMB 245 (1984).

Based upon the application of the principles cited above to the facts established by the investigation, the Board finds that YKR and MPA operate as a single transportation system known as YRC.

III.

Appropriate Craft or Class

The Board makes all craft and class determinations based on the record before it. In deciding craft or class issues, the Board considers the following factors:

[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.

Board's Representation Manual (Manual) Section 5.1.

In 1981, the Board certified the UTU as the collective bargaining representative for the following crafts and classes on the MPA: Engineers, Carmen, Brakemen, and Conductors. In 1999, the Board certified the IBT to represent the craft or class of Train and Engine Service Employees on the YKR. The IBT argues that in the event a single transportation system is found to exist, separate crafts or classes for engine service and train service employees is appropriate and cites Union Pacific, 27 NMB 244 (2000); Kiamichi R.R. Co., 19 NMB 212 (1992); Dakota Minnesota & Eastern R.R., 16 NMB 126 (1989). These determinations deal with the combining of crafts and classes after decades of collective bargaining history as separate crafts or classes.

The facts in this case are inapposite. In the present case, there is a recent certification on the YKR finding the combined craft or class of Train and Engine Service Employees appropriate. YorkRail, Inc., 26 NMB 171 (1999). Under the collective bargaining agreement between YKR and the IBT, engineers and conductors are paid the same wage rate, receive the same holidays, vacation, and sick leave. Conductors and engineers are subject to the same overtime, report and call-in hours of work, and insurance benefits. The YKR/IBT Agreement states that "[w]ithin two years of date of hire, all conductors must qualify as locomotive engineers and engineers not qualified as conductors must so qualify. All brakemen not qualified as conductors will, as the needs of the service require as determined by the Carrier, qualify as conductors."

The MPA/UTU Agreement states that "[a]ny train crew may perform any type of train and engine service for which it is qualified." Under the MPA/UTU agreement "Trainmen must seek promotion to qualified Engineers within 45 days of notice by the Carrier." All crew members on MPA are responsible for removing objects, rerailing and clearing switches, and inspecting cars. Any employees hired for train and engine service after 1993 have a common seniority date for both train and engine service. Both engineers and conductors on MPA receive the same pay, including raises and lump sum payment, holidays, sick leave, hours of work, vacations, and insurance. There is a single locker room for both groups of MPA employees. Therefore, the Board finds that the appropriate craft or class on the single system, YRC, is Train and Engine Service Employees.

CONCLUSION

The Board finds that York Railway Company is operating as a single transportation system for representation purposes under the RLA. The Board finds the proper craft or class on YRC is Train and Engine Service Employees. Accordingly, the application in File No. CR-6747 is converted to NMB Case No. R-6907 and a mail ballot election using a cut-off date of February 23, 2002 is authorized. Pursuant to Manual Section 11.2, the Carrier is required to furnish within five (5) calendar days alphabetized labels bearing the names and addresses of those employees on the list of potential eligible voters. IBT and UTU will appear on the ballot. The count will take place in Washington, DC.

By direction of the NATIONAL MEDIATION BOARD.

Benetta M. Mansfield

Chief of Staff

Copies to:

Ms.Ann Wileczek

Mr. Andrew Chunko

Mr. William A. Jasper

Mr. Ray Benning

Joshua D. McInerney, Esq.

Mr. Al Koch

Mr. Byron A. Boyd, Jr.

Mr. Kevin C. Brodar

John A. Nadalin