In the Matter of the

Application of the

ASSOCIATION OF COMMUTER RAIL EMPLOYEES

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

involving employees of

METRO-NORTH COMMUTER RAILROAD

Signalmen

29 NMB No. 85

CASE NO. R-6893

FINDINGS UPON INVESTIGATION- AUTHORIZATION OF ELECTION

September 13, 2002

On May 29, 2002, the Association of Commuter Rail Employees (ACRE) filed an application with the National Mediation Board (Board) pursuant to the Railway Labor Act (RLA), 45 U.S.C. § 152, Ninth (Section 2, Ninth) alleging a representation dispute among "Signalmen (Maintainers)"1 of Metro-North Commuter Railroad (Metro-North or Carrier). At the time the application was filed, these employees were represented by the Brotherhood of Railroad Signalmen (BRS). The BRS alleges that ACRE is a carrier-dominated organization and requests that ACRE's application be dismissed.

The Board assigned Eileen M. Hennessey to investigate.

For the reasons set forth below, the Board dismisses the BRS's allegations and authorizes an election.

PROCEDURAL	BACKGROUND

ACRE filed the application on May 29, 2002. On June 13, 2002, the BRS filed an initial position statement with the Board requesting that the application be dismissed because ACRE receives substantial assistance from the Carrier in violation of Section 2, Ninth.

On June 12, 2002, the Carrier filed a list of potential eligible voters and signature samples and stated that the cut-off date for eligibility was May 29, 2002.

The Carrier and ACRE each responded to BRS's initial position statement on June 21, 2002. BRS filed a rebuttal submission with the Board on June 28, 2002. ACRE responded on July 2, 2002. Metro-North responded on July10, 2002.

ISSUE

Did Metro-North interfere, influence or coerce the Signalmen's free choice of a representative by dominating ACRE?

CONTENTIONS

BRS

The BRS asserts that ACRE's application should be rejected because ACRE's collection of authorization cards was aided and abetted by Metro-North. BRS argues that Metro-North in effect subsidized ACRE because the Carrier paid full commuter rail employee compensation and benefits to ACRE officers who do not perform commuter rail work. According to BRS, it is also clear that the subsidy has been a factor in ACRE's attempts to obtain representative status.

BRS argues that ACRE began a drive to represent Metro- North train service employees, succeeded in that drive and then quickly entered into an arrangement whereby Metro-North effectively covers about one third of ACRE's operating expenses, when no other rail union on the property has such an arrangement. BRS asserts that, during ACRE's campaign to organize the Signalmen, ACRE assured the Signalmen that their union dues would not increase and could decrease if ACRE was elected. This assurance, BRS contends, was dependent upon the Carrier's subsidy of ACRE in the form of salary and benefits paid to ACRE officials. BRS maintains that the importance of the assurances about dues to the ACRE drive is shown not only in the evidence supplied by BRS but also by ACRE's reply which states that ACRE's operating costs and dues structure are lower because "there is no international union to support" and "ACRE does not have as many officers as an International Union for which salaries must be paid."

BRS argues that the "ACRE 'savings' on officer salaries depends heavily on the fact that Metro-North pays a substantial part of the compensation for several principal ACRE officers by paying them the equivalent of what they would have earned if they actually performed commuter rail service." Other unions on the property, including BRS, actually pay the full compensation of their officers. Therefore, according to BRS, the ACRE card drive was based on an arrangement with Metro-North that not only involved carrier subsidies for ACRE, but also an arrangement that benefits ACRE and is not available to the other unions on the property. BRS states that it is one thing to allow "certain amounts of release time," it is another to pay multiple union representatives full time pay for their representation activities. BRS argues that even if the Carrier's policy toward ACRE is not per se unlawful, it impermissibly taints the application currently before the Board because the authorization cards were obtained in the context of Carrier assistance, support and favoritism toward ACRE.

BRS argues that ACRE's rent is being paid or subsidized by Metro-North. BRS also maintains that ACRE receives assistance from Metro-North with telephone communications. BRS argues that Metro-North provided ACRE's phone system.

ACRE

ACRE contends that the Board should hold an election in this case because there has been no evidence of interference. ACRE asserts there is no factual basis that there was any carrier support or assistance. ACRE argues that the BRS has submitted no evidence that any ACRE representative assisted in the authorization card drive while on paid company time and/or on company property. ACRE further states that no representative of Metro-North consented to and/or participated in the card drive.

ACRE argues that the Carrier has a practice of "releasing" union officials from commuter rail work for activities such as collective bargaining, grievances or mediation. The issue, according to ACRE, is not Metro-North's payment of salaries for union officials, but the functions the union officials perform while on company time. Regardless, if an ACRE union official is on paid release time, or performing commuter rail work, a union official should not engage in an organizing drive while on company time. In the absence of paid release time, these ACRE officials would be paid by Metro-North for their commuter rail work. Moreover, ACRE contends, even if paid release time did not exist, the ACRE officials would not pass their salaries down to the members of ACRE. The ACRE officials would continue to be paid the same salary by Metro-North for commuter rail work and perform their ACRE duties on their own time. Consequently, ACRE argues, Metro-North is not providing any real subsidy to ACRE.

Metro-North

Metro-North notes that it is in the awkward position of responding to unfounded and false accusations made by the BRS, while attempting to comply with the statutory mandate of non- interference. Metro-North contends that it made every effort to comply with the statutory mandate of non-interference. Metro-
North states that BRS's allegations are not supported by the facts.

Metro-North states that the speculation regarding the amount of rent paid by ACRE for their office space in Manhattan is without basis. Furthermore, according to Metro-North, BRS officials have been permitted unfettered access to the Metro-North employees they represent. Metro-North maintains that BRS was informed that the collection of authorization cards on Metro- North property on company time would be stopped if Metro-North was made aware of this activity. According to the Carrier, at no time did Metro-North receive any report from BRS that the activity was taking place on company time on company property.

The Carrier argues that throughout its history, it has permitted employees who are also union officials certain amounts of "release time." Metro-North states that the decision to allow employee union officials release time is a business decision made by Metro-North. Employee union officials who are permitted to be on release time typically perform functions that Metro-North views as beneficial to Metro-North and its employees. Employee union officials on release time are not permitted to engage in activities that are contrary to Metro-North's interest or in activities that are exclusively union business.

FINDINGS OF LAW

Determination of the issue in this case is governed by the RLA, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:

I.

Metro-North is a common carrier by rail as defined in 45 U.S.C. § 151, First.

II.

The BRS and ACRE are labor organizations and/or representatives as provided by 45 U.S.C. §151, Sixth and §152, Ninth.

III.

45 U.S.C. § 152, Third, provides in part: "Representatives . . . shall be designated . . . without interference, influence, or coercion."

IV.

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." This section also provides as follows:

No carrier, its officers, or agents shall deny or in any way question the right of its employees to join, organize, or assist in organizing the labor organization of their choice, and it shall be unlawful for any carrier to interfere in any way with the organization of its employees . . . or to influence or coerce employees in an effort to induce them to join or remain or not to join or remain members of any labor organization.

FINDINGS OF FACT

A. Collective Bargaining Relationships on Metro-North

BRS represents Signalmen on Metro-North.

ACRE currently represents the following crafts and classes on Metro-North: Conductors R-6726; Locomotive Engineers R-
6724; Train Dispatchers R-6725; Power Directors (Supervisors) R-
6741; and Yardmasters R-6736. ACRE consists of an Executive Board and the following locals: ACRE Local Division 1, ACRE Local Division 9, ACRE Local 37 and ACRE Local 113.

B. Release Time

Metro-North defines release time as time in which an employee is "released from the duties of their position while under pay." The decision to allow employee union officials release time is a business decision made by Metro-North. Employee union officials on release time are not permitted to engage in activities that are contrary to Metro-North's interest or in activities that are exclusively union business.

Past collective bargaining agreements between Metro-North and the Brotherhood of Locomotive Engineers and between Metro-North and the United Transportation Union provided:

Conferences between officers of Metro-North and duly accredited representatives will be held without cost to Metro-North. When duly accredited representatives are required to report for a conference at the direction of Metro-North, they will be compensated for the time engaged in conference, with a minimum of (4) hours pay, and if required to lay off an assignment by reason of the conference, will be made whole for the earnings of his regular assignment.

In 1997, Metro-North agreed with the Metro-North Policemen's Benevolent Association (PBA) to "provide full release time with pay to the President of the [PBA]." In addition, the Carrier and the PBA agreed that "[u]nion officials who attend Metro-North's meetings on union business, such as grievances, appeal hearings and arbitrations will be released from their tour of duty for that day and will be paid by Metro-North."

ACRE's Executive Board consists of four voting members: Michael Doyle, General Chairman of Local Division 9; Anthony Bottalico, General Chairman of Local Division 1; Gerry Politi, General Chairman of Local 37; and James Fahey, General Chairman of Local 113. Four ACRE officers are on full-time release time: Doyle; Bottalico; Ralph Sanzari, Vice General Chairman of Local 1; and Ronald Deandrus, Vice General Chairman of Local Division 9.

While on full-time release, Doyle, Bottalico, Sanzari, and Deandrus perform the following duties: (a) adjust member grievances; (b) meet and discuss commuter railroad matters with the Carrier; (c) track members' electronic payroll records; (d) represent members at arbitration proceedings; and (e) assist with the resolution of ongoing claims and grievances to avoid backlog.

C.	ACRE's Rent and Telephone System

The ACRE Executive Board maintains offices at 420 Lexington Avenue, New York, New York. This space also serves as the office for all ACRE locals. On June 20, 2000, SLG Graybar Sublease, LLC executed a lease with ACRE for its offices. ACRE paid $55,526 in rent for the period July 15, 2000 to December 31, 2000 for the Executive Board Offices. ACRE contracted to pay rent in the following amounts:

$9,424.00 per month for the period June 2000 - July 2001;

$9,706.72 per month for the period July 2001 - June 2002;

$9,997.92 per month for the period July 2002 - June 2003;

$10,297.86 per month for the period July 2003 - June 2004.

The leasing company states "[a]t the time we rented the commercial space to ACRE, the above mentioned rent was the market value for the space."

ACRE Local Division 1 paid $1,410.00 in rent in 2000 for meeting space at a YMCA for monthly union activities. In 2001 Local Division 1 paid $1,830.00 to rent meeting space at the YMCA for monthly union meetings.

ACRE paid $17,513.00 in telephone costs in 2001. ACRE has a website listing its telephone number as (212) 599-5856. The message on the answering machine on this line indicates that it is ACRE's telephone number and does not indicate any affiliation with Metro-North. During the course of this investigation, the Investigator attempted to contact ACRE through Metro-North on telephone numbers posted on the Carrier's web- site. On one attempt the voice activated telephone directory did not recognize either "ACRE" or the "Association of Commuter Rail Employees" and the Investigator was not connected. On another attempt, the Investigator was told by the operator that Metro- North had no listing for ACRE. In a third instance, the Metro- North operator gave the Investigator the telephone number and offered to connect her.

D. The ACRE Organizing Drive

On July 19, 2001, Raymond Burney, Metro-North's Director of Labor Relations, sent a memorandum to Wayne Staley, Director C&S Department, which stated in part:

It has come to my attention that there are or there will be some efforts made to obtain the requisite number of authorization cards ("A cards") necessary to force an election for the representation of the employees in your Department.

Metro-North has a legal obligation to not interfere in the process of employees selecting their duly accredited representative. However, we also have an obligation to not let this process interfere with our operation and to enforce our Company Policy of "no solicitation" on our property. Therefore, you should instruct your managers and supervisors that any efforts made by union organizers (employees and non-employees) are not permitted on company time or on company property. Anyone attempting to obtain signatures on "A cards" who is on company property or company time should be instructed to stop immediately.

This memo was posted on bulletin boards in Metro-North's system. One individual received the letter by first class mail.

On May 31, 2002, Burney sent an e-mail message to Metro- North Managers notifying them of "potential representation elections." The e-mail also stated "[m]anagement employees should refrain from engaging in discussion regarding the representation of these employees. The Railway Labor Act requires that employers not interfere with the employees selection of an Organization for representation. Please act accordingly."

ACRE submitted sworn statements from five individuals who collected authorization cards on its behalf. These statements stated in part:

To my knowledge, no representatives of the MTA and/or Metro-North consented to and/or participated in the circulation of the A cards. . . .

To my knowledge, no officers of ACRE assisted in the organization drive while on paid company time.

BRS submitted sworn statements from Dennis Boston, Vice President, in the Northeast for the BRS. Boston states in part, "several of the principal collectors for A cards for ACRE . . . did so while on company time."

DISCUSSION

A. Applicable Legal Standards

Under 45 U.S.C. § 152, Ninth, the Board is charged with the responsibility of assuring that employees in any craft or class are provided the opportunity to make a choice concerning representation free of carrier interference, influence or coercion. This duty requires that when there are employee allegations of carrier interference, the Board must investigate such claims. Northern Air Cargo, Inc., 29 NMB 1 (2001); Metroflight, Inc., 13 NMB 284 (1986); Key Airlines, 13 NMB 153 (1986). The duty extends to the Board's investigation of allegations of carrier interference before the authorization of an election. Southwest Airlines, 21 NMB 332 (1994); Seaboard System R.R, 12 NMB 25 (1984); Sea Airmotive, Inc. d/b/a SEAIR Alaska Airlines, 11 NMB 87 (1983); Transkentucky Transp. R.R., Inc., 8 NMB 495 (1981).

The Carrier is under an obligation imposed by the RLA to act in a manner which does not influence, interfere or coerce the employees' selection of a collective bargaining representative. The carrier is obligated to preserve laboratory conditions ensuring employee freedom of choice. The Board has long held that from the time the carrier was aware of the organizing drive until its conclusion of the election, laboratory conditions must be maintained. Metroflight, above; Key Airlines, above.

Carrier interference, influence, or coercion which fosters, assists or dominates an organization may disqualify the organization as an employee representative. Northern Air Cargo, above. Under these circumstances, the Board has found that the organization "is not qualified to act as an employee representative nor accordingly, to invoke a representation dispute on the employees' behalf." Mackey Int'l Airlines, 5 NMB 220, 221 (1975). In addition, when the facts tend to show that an organization's A- cards were the product of carrier influence, the Board will not take cognizance of the cards by directing an election under 45 U.S.C. § 152, Ninth. Southwest Airlines, above at 350.

In contrast, the Board found that the applicant was not fostered, dominated or assisted by the carrier in circumstances where the applicant obtained a list of employee addresses without carrier permission and used portions of carrier letters without obtaining carrier assistance or advice. Wisconsin Central, 24 NMB 64 (1996). In Orion Lift Servs., Inc., 15 NMB 358 (1988), the Board found an organization independent of the carrier where it had asked for voluntary recognition and the carrier refused and had campaigned for one of the two bona fide labor organizations on the ballot. The Board determined that these acts were not characteristic of a carrier dominated union. In Virgin Atlantic Airways, 24 NMB 575 (1997), the Board found that the carrier interfered in a manner which benefitted the applicant. However, the Board also determined that there was insufficient evidence that an applicant union was carrier dominated where the applicant and the carrier did not act in concert to promote the applicant's candidacy. Id.

In cases involving the issue of whether employees' freedom of choice of a collective bargaining representative has been impaired, including allegations raised in this case, the Board examines the totality of the circumstances. The Board evaluates the facts developed from the investigation including the organizations' and the carrier's submissions, and Board experience. Evergreen Int'l Airlines, 20 NMB 675 (1993).

B. Rent and Telephone

The evidence in this case establishes that Metro-North is not subsidizing ACRE's rent or telephone system or other operating expenses. The lease is between ACRE and SLG Graybar Sublease, LLC. There is no evidence that Metro-North is a party to this lease. The leasing agent states that, at the time the multi- year leasing agreement was signed, the monthly rent was at market value. According to reports filed by ACRE with the Department of Labor, ACRE spent $17,513.00 in telephone costs in 2001. It is possible to be connected to ACRE's offices through some Metro-North switchboard operators. This, however, does not prove that Metro-North is subsidizing ACRE's telephone service, nor is there evidence that this connection benefits ACRE in any way.

C. Release Time

Metro-North has a policy of granting release time to union officials. The Carrier has a no solicitation policy which prevents union organizing while on duty and while on the Carrier's property. The Carrier promulgated this policy at least twice during the election campaign and requested that it be made aware of violations to the policy. There is insufficient evidence that any violations were committed by ACRE representatives while on release time. Nor is there evidence in the record that Metro-North was notified of violations of this policy.

BRS objects to the amount of release time which ACRE representatives are granted. ACRE currently represents five crafts or classes of employees on Metro-North. The record shows that other organizations currently representing employees on Metro-North get release time. The record also shows that other organizations that represented employees on Metro-North in the recent past received release time. In addition, there is no evidence that release time was granted to ACRE for purposes of organizing other crafts or classes. In fact, the Carrier's memos regarding its no solicitation policy belie that claim.

BRS's arguments, in effect, seek to have the Board establish lawful and unlawful levels of release time. The amount of release time is not proof of carrier domination. BRS's assertions that release time confers financial advantages on ACRE and that these financial advantages, in turn, confer organizing advantages upon ACRE, are unfounded. The Board, therefore, determines that ACRE is not a carrier dominated organization.

CONCLUSION

The Board finds that Metro-North did not interfere, influence, or coerce the Signalmen's free choice of representative by dominating ACRE. Accordingly, a mail ballot election using a cut-off date of May 29, 2002 is authorized. Pursuant to the Board's Representation 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. BRS and ACRE 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:

Mr. Raymond Burney

Mr. J. Gaines

Vincent F. O'Hara, Esq.

Richard Edelman, Esq.

Mr. W.D. Pickett

Mr. Dennis M. Boston