In the Matter of the
alleging a representation dispute
pursuant to Section 2, Ninth,
involving employees of
TERMINAL RAILROAD ASSOCIATION OF ST. LOUIS
28 NMB No. 36
CASE NO. R-6799
On May 4, 2000, the United Transportation Union (UTU) filed an application with the National Mediation Board (Board) pursuant to 45 U.S.C. § 152, alleging a representation dispute among Train and Engine Service Employees of Terminal Railroad Association of St. Louis (TRRA or Carrier).
At the time of this application, the Carrier voluntarily recognized the UTU as the representative of "Switchmen"(1) and the Brotherhood of Locomotive Engineers (BLE) as the representative of "Engineers" working for TRRA.
The Board assigned Benetta M. Mansfield and Eileen M. Hennessey to investigate.
For the reasons below, based on the facts presented in this case, the Board finds that the proper craft or class is Train and Engine Service Employees. The UTU's application is converted to NMB Case No. R-6799, and the Board authorizes an election.
On May 5, 2000, the Board asked the Carrier to provide a list of potential eligible voters and signature samples for the employees in the Train and Engine Service Employees craft or class. The Board advised the Carrier, BLE, and UTU that they could provide initial position statements by May 19, 2000.
The Carrier submitted a list with 125 potential eligible voters on May 19, 2000.
On May 19, 2000, BLE filed an initial position statement asserting that the application should be dismissed based upon "the Board's settled standards for determining operating crafts and classes on short-line and regional railroads."
On May 23, 2000, the Investigator gave the Carrier and the UTU an opportunity to respond to the BLE's initial position statement. The UTU responded on May 26, 2000. The BLE replied to the UTU's response on June 6, 2000. The Investigator requested information from the Carrier on June 14, 2000. The Carrier complied with this request on June 27, 2000. On July 5, 2000, the UTU and the BLE were given an opportunity to respond to the Carrier's information which the Organizations did on July 10, 2000. The Investigator also requested additional information from the Carrier on July 5, 2000, which they submitted on August 23, 2000. UTU and BLE responded to this information on September 15, 2000. The Investigator requested additional information from the Carrier on September 18, 2000, which the Carrier provided on September 22, 2000.
The Carrier provided all information requested by the Investigator.
What is the proper craft(s) or class(es) for engineers and switchmen on TRRA?
The BLE asserts that the law governing the disposition of this case is well settled. The BLE states that the Board has recognized since its inception that "historical patterns of representation in the railroad industry provide the basis for craft or class determinations," citing Duluth, Missabe & Iron Range Ry. Co., 16 NMB 495, 500 (1989). The BLE argues that the Board allows a radical departure from historic patterns of representation of locomotive engineers "only if it can be established by objective evidence that a carrier 'cross-utilizes' locomotive engineers and train service employees to a significant and material extent." The BLE states that ebb and flow patterns do not constitute cross-utilization and should not be considered by the Board.(2) Alternatively, even if ebb and flow patterns could properly be treated as cross-utilization, the BLE argues that the Carrier's ebb and flow data indicates that instances of employees working in more than one craft or class are minimal.
The BLE states that cross-utilization between train service employees and engine service employees is virtually nonexistent. During the 90-day preponderance check period, from February 1, 2000 through April 30, 2000, 99 percent of engineer assignments were performed by engineers, and 99 percent of train service assignments were performed by train service employees. The BLE asserts that out of a total of approximately 1,957 engineer assignments, only 19 were performed by train service employees; out of a total of approximately 4,227 train service assignments, only 26 were performed by engineers. The BLE concludes that there is insufficient cross-utilization to support the combination of train service and engine service employees. The BLE argues that there is no basis for disturbing the century-old separation between the crafts and classes on TRRA.
The BLE states that the ebb and flow describes a phenomenon historically common in the railroad industry and specifically recognized in union shop provisions under the Railway Labor Act (Act). Therefore, the BLE argues that ebb and flow patterns cannot serve as a factor in craft or class determinations. In the event the Board considers the ebb and flow information provided, the data shows that only three percent of assignments were performed by employees working in another craft or class.
In addition, according to the BLE, other factors strongly mitigate against combined crafts and classes. First, BLE and UTU always bargain separately with the Carrier. Second, the Carrier maintains separate seniority rosters for switchmen and engineers. Upon promotion to engineer, an employee receives an engineer seniority date which governs the bidding, transfer, job seniority and other rights of engineers, and their relationship with the Carrier.
The BLE asks the Board to dismiss the application.
UTU maintains that the appropriate craft or class is Train and Engine Service Employees. It argues that although the UTU and BLE negotiate separate collective bargaining agreements, the pay increases, rules, and working conditions for engineers and switchmen are substantially similar. The UTU maintains that both Organizations have identical agreements with TRRA covering Revised Work Rules and Job Protection. In addition, the UTU asserts that it has negotiated extensively on behalf of train service employees and engineer trainees in ebb and flow agreements. Therefore, both switchmen and engineers have the requisite community of interest to form a single craft or class.
According to the UTU, there is a mandatory single line of progression from trainman to engineer. As a result, 95 percent of the Carrier's active engineers commenced their careers as train service employees. The UTU also argues, for the 90-day period from February 13, 2000 through May 12, 2000, 13 employees with train service and engine service seniority moved between the trainmen's working list and engineers' working list on 83 occasions. These 13 employees represent approximately 33 percent of the total employees with train and engine service seniority. The UTU asserts that once trainmen qualify as engineers, they are cross-utilized as trainmen or engineers until their engineer seniority entitles them to work regularly as an engineer.
The UTU argues that the Board's Representation Manual (Manual) and Board case law confirm that "historical patterns" are only one factor relevant to craft or class analysis and that "work-related community of interest" is particularly important. The UTU also asserts that cross-utilization based on preponderance information is to determine individual eligibility challenges and this information is not dispositive in craft or class determinations. For this reason, the BLE's emphasis on cross-utilization data is misplaced.
In addition, the UTU argues that the Board has never ruled that "historical patterns of representation" are frozen in place or that "new developments are to be ignored." The UTU says that the following developments in the working conditions of operating employees on TRRA have led to the "pervasive community of interest among trainmen and engineers": 1) the sharp reduction in crew consist on most trains; 2) the operation of trainmen and engineers as a single operating unit with joint and equal responsibility for the movement of trains according to common operating and safety rules; 3) the collapse of dual lines of progression (from trainman to conductor or from fireman to engineer) into a single, mandatory line of progression; 4) the development of overlapping incidental work rules for the performance of essential work by both trainmen and engineers; 5) the ebb and flow of employees between trainman and engineer positions; 6) the policy of equal discipline for conductor and engineer positions; and 7) the common bargaining interests of trainmen and engineers in the areas of pay, benefits, training, and seniority.
UTU asks the Board to order an election in the combined craft or class.
The TRRA takes no position in this dispute.
FINDINGS OF LAW
Determination of the issues in this case is governed by the Act, as amended, 45 U.S.C. §§ 151-188. Accordingly, the Board finds as follows:
TRRA is a common carrier by railroad as defined in 45 U.S.C. § 151, First.
The BLE and UTU are labor organizations and/or representatives as provided by 45 U.S.C. § 152, Ninth.
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."
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.
FINDINGS OF FACT
TRRA has approximately 125 operating employees. TRRA is a small non-Class I railroad. It owns approximately 200 miles of railroad track in Missouri and Illinois with an operating radius of 10 miles. TRRA's operations consist of interchanging freight cars between line-haul railroads, classifying cars for movement, and switching cars to and from industries located on its lines. TRRA serves approximately 100 industries on its tracks and switches approximately 350,000 cars annually.
TRRA is under the national agreements with both Organizations which treat engineers and switchmen as separate crafts or classes. The UTU and BLE agreements with TRRA are substantially similar with respect to pay increases, rules, working conditions, overtime, holidays, and vacations.
Since 1889, the BLE has been the recognized representative of TRRA's engineers. From that date until present, the BLE negotiated numerous collective bargaining agreements with the Carrier covering the wages and working conditions of engineers. The engineers are currently under the 1996 National Agreement negotiated between the BLE and the National Carriers' Conference Committee.
The UTU has negotiated on behalf of the trainmen since its formation in 1969. TRRA is a party to the 1996 National Agreement between the UTU and the National Carriers' Conference Committee. Further, UTU has negotiated extensively on behalf of trainmen and engineer trainees for ebb and flow agreements of trainmen and engineers.
The job functions of the TRRA engineer are set forth in the job description as follows:
1) operate locomotive units using train handling skills that assure on-time/on-plan movement, fuel efficiency, rule compliance, derailment prevention, and safety;
2) conduct pre-run locomotive unit inspections and tests;
3) observe and monitor conditions of train and railroad right-of-way;
4) communicate train data and information;
5) interpret and assure compliance with signals; and
6) practice safe work habits.
The job description states that the engineer's job requires reading and understanding job information written in English, communicating verbally with coworkers, writing effective communications, learning recall, problem analysis, technical competencies, teamwork, competent vision and hearing capabilities, and the ability to perform physical activities.
The work conditions require the engineer to work outside under various weather conditions. The engineer's job schedule requires the willingness and ability to work nonstandard hours including nights, weekends, holidays, and extended days. The engineer may be on-call and spend extended time away from home. The conditions also require the engineer to work and walk around heavy, moving equipment. The job description additionally states:
Engineer trainee job vacancies are filled by incumbent trainmen in seniority order who satisfy eligibility criteria. Once appointed, the engineer trainee must complete a six month training period which consists of three weeks of classroom/simulator training in Salt Lake City and supervised field trip operations in the assigned territory. Engineers must renew FRA certification at three year intervals which requires meeting standards for physical reexamination, rule certification, field check trips, and drivers's license review.
According to the job description provided by the Carrier, the duties of the trainman are as follows:
1) assure safe and on-plan train operation and movements;
2) perform switching operations for on-plan car routing, delivery, and pickup;
3) conduct train and equipment inspections;
4) communicate and report information concerning train movements and work orders;
5) interpret and assure compliance with signals; and
6) practice safe work habits.
The job description states that the trainman's position requires the ability to understand written English, communicate verbally with coworkers, computer or technical skills, problem solving and analysis skills, positive interaction with coworkers, supervisors, and customers, competent vision and hearing capabilities, and the ability to perform physical activities.
Trainmen work outside under various weather conditions and must be willing to work extended hours, nights, weekends, holidays, and maintain on-call hours. They must climb on and off heavy equipment and perform switching operations. The job description for the trainman also states the following:
An entry level trainman may be immediately assigned to switchman, brakeman, or hostler position assignments. In seniority order a trainman will also be required to qualify for conductor or locomotive engineer position assignments.
The Carrier maintains separate engineer and train service seniority rosters. The engineers' seniority roster consists of 46 names. The switchmen's seniority roster consists of 160 names with 118 employees in active service. Forty-one of the 46 persons listed on the engineers' seniority roster are also listed on the switchmen's seniority roster.
Operating employees on TRRA fall into two categories: 1) pre-1985 hires and 2) post-1985 hires. These two categories are subject to different rules for progression. For employees hired prior to 1985, progression from train service to engine service is voluntary. Train service employees hired after 1985 must obtain engineer certification. Post-1985 hires have two chances to obtain engineer certification. If the employee fails the certification exam twice, the employee is terminated. This mandatory, single line of progression is set forth in Article XIII of the October 31, 1985, UTU Agreement and was developed as the result of the Engineer Training Program ("Program") negotiated by the UTU to allow trainmen to qualify for promotion to engineer.
The Carrier conducts annual training for new engineers. TRRA projects that it will conduct similar engineer training sessions every year for seven to 10 train service employees.
According to Carrier data, once employees are engineer-qualified, the employees typically experience a period of "ebb and flow" between train service and engine service. The Carrier generally maintains between 20 and 25 train crews. Therefore, 28 to 40 employees are in engine service at any given time. If the need for engine service employees increases, the highest seniority-qualified train service employees will be called up to engine service. This call-up is mandatory. In the event that the need for engineers decreases, the engineer with the lowest seniority will "flow back" to train service. The Carrier must cut back engineers in reverse seniority order. Employees eventually gain enough seniority in engine service to work exclusively in engine service and are no longer subject to ebb and flow. Approximately 37 percent of the 43 active employees on the engineers' seniority roster worked in both train service and engine service during the period May 5, 1999 through May 5, 2000.(3) The percentage of time spent on engineer's duties ranged from 99 percent to one percent.
There are 70 pre-1985 active employees on the switchmen's seniority roster. Twenty-six of those employees are engineer-qualified and hold engine service seniority as well.
The mandatory retirement age on TRRA for train service employees is 65. For engineers, the mandatory retirement age is 70. In the last five years, four of the pre-1985 train service employees who declined engine service work have resigned.
A. Applicable Standards and Previous Decisions
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.
Manual Section 5.1.
The Board recognizes that "historical patterns of representation in the railroad industry provide the basis for craft or class determinations." Duluth, Missabe & Iron Range Ry. Co., 16 NMB 495, 500 (1989). See also First Annual Report of the National Mediation Board (Fiscal Year 1935), at 20-21 (1936). The Board has generally adhered to traditional railroad craft or class distinctions. See, e.g., Kiamichi Railroad Corp., 20 NMB 449 (1993); Dakota, Minnesota & Eastern Railroad Corp., 16 NMB 126 (1989). However, the Board does not base craft or class determinations solely on historical patterns of representation and has found that "collective bargaining history alone is an insufficient basis for finding a craft or class to be appropriate." Northwest Airlines, Inc., 14 NMB 173, 179 (1987). In limited cases and based upon the facts presented, the Board has combined train and engine service employees on non-Class I railroads. Texas Mexican Railway Co., 27 NMB 257(2000); Florida East Coast Railroad Co., 21 NMB 35 (1993).
B. Application of Standards to TRRA
In analyzing this case, the Board considers the various factors noted above as well as its knowledge of the collective bargaining environment in the rail industry. As discussed more fully below, based upon these considerations, taken in their totality, and with due consideration to the Board's statutory responsibility to promote stable collective bargaining and peaceful resolution of disputes, the Board concludes that the appropriate craft or class on TRRA is Train and Engine Service Employees.
1. Progression from Trainman to Engineer.
In analyzing the permanency of employee groupings, the Board finds that the mandatory line of progression and the large number of trainmen who have been trained as engineers is significant. The evidence shows that TRRA provides annual engineer training to a class of 7 to 10 trainmen. This training and certification takes place within two or three years of the trainman's seniority date. Once certified, these trainmen receive an engineer seniority date and, based upon this date, receive engineer assignments. On TRRA, post-1985 train service hires who qualify as engineers "ebb and flow" from train service to engine service. On average, switchmen who worked in both crafts or classes spent 45 percent of their time in engine service in the one-year period preceding the date of the application. This degree of interchange between the two crafts and classes supports a consolidated craft or class.
2. Ebb and Flow
Craft or class determinations are not limited to measuring the extent of cross-utilization. The Manual states:
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).
In order to assess the functions, duties, and responsibilities of TRRA train service and engine service employees, the Board requested cross-utilization and "ebb and flow" data for the one-year period preceding the application date.
This is consistent with Board precedent. In Texas Mexican Railway, above, the Board looked at various factors including mandatory promotions, seniority rosters, cross-training, and ebb and flow information. After examining these factors, the Board found that the proper craft or class was Train and Engine Service Employees. In Florida East Coast Railroad, above, the Board considered several factors, including a review of a three-month period of cross-utilization. The Board also considered several other factors in the decision such as bidding, the seniority list, and bargaining history. The Board recognized the evolving nature of the industry, stating:
[O]n smaller carriers with a significant degree of cross-utilization, perpetuating historic crafts and classes could result in artificial fragmentation of employees along traditional craft or class lines . . . . In particular, cross-training and cross-utilization of employees across craft lines on smaller railroads appears to be increasing.
Id. at 44 (emphasis supplied).
The terms "ebb and flow" and "cross-utilization" define the interchange of trainmen and engineers. Ebb and flow is the usage of employees based on need or seasonal fluctuation. Cross- utilization is the usage of employees based on the team concept of requiring employees to perform various job duties. Ebb and flow and cross-utilization are not interchangeable concepts. Both concepts may be relevant in craft or class determinations.
Ebb and flow data for May 5, 1999 through May 5, 2000, shows that over one-third of the employees on the engineers' seniority roster worked as both engineers and switchmen. These employees worked an average of 207 days with 94 days spent on average in engine service. Thus, over one-third of engineers spend almost half of their time performing work outside of the engineer craft or class. This fact tends to blur the distinction between separate operating crafts or classes on TRRA.
3. The Percent of Pre-1985 Train Service Employees Who are Engineer Certified
The evidence shows that 41 of the 46 employees on the engineers' seniority roster are also on the trainmen's seniority roster. In addition, over one-third of employees in train service on TRRA on November 1, 1985, received engineer training and became certified engineers. As the Carrier points out,
As more of the pre-1985 train service employees reach retirement age, a greater percentage of the employees in train service become subject to the mandatory promotion rule. At present, there are 70 pre-85 active employees on the switchmen's seniority roster, of which 26 voluntarily chose to accept engine service seniority as well. The remaining 44 employees are, in effect, a vanishing breed, i.e., senior train service employees who do not also hold engine service seniority.
The significant overlap of train service and engine service personnel on TRRA supports a combined train and engine service craft or class.
A. Job Functions
Trainmen and engineers have similar job functions including conducting train and equipment inspections, communicating train data and information, interpreting and transmitting signals, and practicing safe work habits. The single function which distinguishes engineers from trainmen is that engineers "operate locomotive units using train handling skills that assure on-time/on-plan movement, fuel efficiency, rule compliance, derailment prevention, and safety." See TRRA, Locomotive Engineer Job Description at 1. In contrast, trainmen ensure train operation and movement by "get[ting] on and off moving and stationary equipment; couple and uncouple air and electrical connections between cars . . . and perform switching operations." See TRRA, Trainman Job Description at 1. The historical distinctions have eroded through the job functions and the decreasing crew consists. Both classifications are now responsible for the movement of the train according to common operating and safety rules.
B. Job Requirements
The job requirements of train and engine service employees are virtually identical. Engineers are required to obtain Federal certification. As a result of the 1985 National Agreement with the UTU, train service employees hired after 1985 are also required to obtain Federal certification as an engineer. If a train service employee fails engineer training twice, the employee is terminated.
Both positions require the employee to: 1) read and understand job information written in English; 2) communicate by speaking with coworkers; 3) possess learning and recall skills; 4) possess problem analysis or problem solving skills; 5) possess technical competencies (computer keyboard literacy); 6) possess teamwork skills (positive interaction); 7) satisfy vision and hearing requirements; and 8) perform physical activities. See TRRA, Trainman Job Description at 1, and TRRA, Locomotive Engineer Job Description at 1.
C. Work Conditions
The work conditions of engineers and trainmen are substantially similar. Both must work outside under various weather conditions and must work extended days, nights, weekends, holidays, and maintain on-call hours. Both are required to work on and around heavy equipment.
The significant similarity in job functions, job requirements, and work conditions between engineers and trainmen allows operating personnel to move back and forth between classifications on a regular basis. As a result, there is considerable movement between the classifications. Ebb and flow data for May 5, 1999 through May 5, 2000, shows that over one- third of the employees on the engineers' seniority roster worked as both engineers and switchmen. The majority of these employees on the engineers' seniority roster moved between the classifications at least 20 percent of their time. The similarity in working conditions eliminates a basis for two distinct operating crafts or classes.
The Board has recognized that changed conditions can alter historic craft or class lines on railroads. The number of non-engineer-certified trainmen on TRRA is diminishing and will continue to diminish. Based upon the facts in this case, the mandatory progression from train service to engine service, the regular ebb and flow of employees from train service to engine service, and the similarity in working conditions and job functions, the Board concludes that a combined craft or class of Train and Engine Service Employees is proper.
The Board finds the proper craft or class at TRRA is Train and Engine Service Employees and that a dispute exists among the Train and Engine Service Employees. Therefore, the Board converts NMB File No. CR-6690 to NMB Case No. R-6799 and authorizes a mail ballot election using a cut-off date of April 23, 2000. 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. UTU and BLE will appear on the ballot. A count will take place in Washington, DC.
By the NATIONAL MEDIATION BOARD.
Magdalena G. Jacobsen, Member
Francis J. Duggan, Member
Chairman DuBester, dissenting:
This decision involves a request that the Board deviate from the historical patterns of representation in the railroad industry. The craft or class structure in the railroad industry is the product of a distinctive history of collective bargaining relationships. As the Board noted in its First Annual Report, the historical patterns of representation were developed by "following the past practice of the employees in grouping themselves for representation purposes and of the carriers in making agreements with such representatives." First Annual Report of the National Mediation Board (Fiscal Year 1935) at 20 (1936). Throughout the years, the Board has often reaffirmed the principle that historical patterns of representation in the railroad industry provide the basis for craft or class determinations(4) and has often denied requests to depart from such patterns. See, e.g., Kiamichi Railroad Co., Inc., 19 NMB 212 (1992); Dakota, Minnesota & Eastern Railroad Corp., 16 NMB 126, 130 (1989); Iowa Interstate Railroad, Ltd., 13 NMB 271 (1986); Genessee and Wyoming Railroad Co., 12 NMB 261 (1985); Metro-North Commuter Railroad, 12 NMB 38 (1984); Ontario Midland Railroad, 10 NMB 18 (1982). See generally Benjamin Aaron, Beatrice M. Burgoon, etc., The Railway Labor Act at Fifty, Collective Bargaining in the Railroad and Airline Industry, National Mediation Board, at 28-32 (1977).
The Board's general adherence to traditional railroad craft or class distinctions, however, is not without exception where compelling facts and circumstances have been demonstrated. For example, in Florida East Coast Railroad Company (FEC), 21 NMB 35 (1993), the Board was asked to depart from traditional craft lines and to conduct an election among a craft or class that combined train service (trainmen and conductors) and engine service employees. In support of that request, the carrier, FEC, asserted that it cross-utilized its pertinent employees "to an unprecedented degree." After an examination of the carrier's records demonstrated that "the employees do not work preponderantly as trainmen, conductors or engineers" but were "cross-utilized routinely" 21 NMB at 45, the Board authorized, in those circumstances, an alteration to the historical pattern of representation. In so concluding, the Board observed that "on smaller carriers with a significant degree of cross-utilization, perpetuating historic crafts and classes could result in artificial fragmentation of employees along traditional craft or class lines which do not reflect the carrier's actual operations." Id. at 44.
Since FEC, the Board has denied requests for departures from traditional crafts or classes on smaller rail carriers, absent sufficient evidence that employees are materially cross-utilized. See, e.g., Illinois and Midland Railroad Co. (Illinois and Midland), 25 NMB 57 (1997); Central Railroad Co. of Indiana, 21 NMB 175 (1994). This is so even though the employees at issue are covered by a single collective bargaining agreement that permits them to bid for any job for which they are qualified. 25 NMB at 65.
Recently, in a case involving the Union Pacific Railroad Company, a large, Class I railroad, the Board had another occasion to consider a request to depart from the historical craft or class structure by consolidating the separate crafts or classes of locomotive engineers and train service employees into a single craft or class of Train and Engine Service Employees. Pursuant to Section 2, Ninth, of the Act, 45 U.S.C. § 152, Ninth, the Board delegated its authority to determine that case to a neutral, three-member panel, Union Pacific Railroad Co., (Union Pacific), 27 NMB 171 (1999). In its decision, the panel concluded that the evidence did not justify a Board order to impose a single craft or class. The Board adopted the panel's decision and dismissed the application for the asserted single craft or class of Train and Engine Service Employees. Union Pacific Railroad Co., 27 NMB 244 (2000).
Many of the essential considerations that are before the Board in this case were placed before the panel and Board in the Union Pacific case. For that reason, this dissent is, in essence, an affirmation of that prior Board order adopting the panel's determination.
As the panel in Union Pacific properly noted, the Board examines a number of factors in determining the craft or class. 27 NMB at 254. Among these are the composition and relative permanency of employee groupings along craft or class lines; collective bargaining history; the functions, duties, and responsibilities of employees; and community of interest. 25 NMB at 64. Similar to Union Pacific, the engineers at TRRA have constituted a separate craft or class, and have been represented as such for collective bargaining purposes, since 1889. Against this background, the critical inquiry here is whether there is an adequate basis to depart from this traditional craft or class by finding that this craft or class no longer retains its distinctive attributes.
As indicated above, the circumstances in FEC afforded a
legal and practical basis for departing from the traditional craft
or class lines in the railroad industry.(5)
In my view, those circumstances are not present here.
Unlike FEC, there is no evidence in this case that TRRA's engineers, trainmen, and conductors are extensively interchanged and materially cross-utilized. Evidence of material cross-utilization, such as that found in FEC, shows that employees in a work group perform the same duties interchangeably and without distinction. In other words, the traditional craft or class lines are extensively and regularly blurred. To the contrary, ebb and flow, relied upon by the majority, is chiefly a consequence of changing business conditions and affects many rail employees who hold seniority on multiple rosters.(6)
Similarly, mandatory progression into the engineer position(7), unlike the critical element of cross-utilization, does not indicate that the engineers no longer have separate and distinct core duties. As the panel noted in Union Pacific, the mandatory progression "is not automatic" but rather dependent on several factors, including the "completion of training and fitness to fill the engineer position." 27 NMB at 255. While the work and working conditions of engineers, conductors, and trainmen is interrelated to some degree,(8)
their primary job functions are not substantially similar. As the majority acknowledges, the primary function distinguishing engineers from trainmen "is that engineers 'operate locomotive units using train handling skills that assure on-time/on-plan movement, fuel efficiency, rule compliance, derailment prevention, and safety'." This is not inconsequential. It is why engineers today require a Federal certification and why trainmen and conductors are treated differently under Federal Railroad Administration Certification regulations.(9)
In determining the craft or class, the Board's responsibility is to investigate and evaluate the record evidence. The evidence and circumstances here do not demonstrate that the engineers' distinctive core duties have been altered so as to justify a departure from the longstanding, traditional craft or class. If future evolution in the railroad industry eliminates the distinctive core functions of operating employees, then this craft or class issue could be properly reevaluated.
Moreover, the NMB's role in determining the craft or class should not be confused with the responsibilities and decisions of autonomous labor organizations. The issue underlying this case is an emotional, often divisive issue throughout much of the railroad industry. For many, it is viewed as a contest between the UTU and the BLE. That should not be the Board's view. To the contrary, a voluntary merger between these Organizations could reflect the best traditions of each organization, proving beneficial to the represented employees, to the Organizations themselves, and to the industry generally. Such a decision, however, is for each Organization to determine.
Ernest W. DuBester, Chairman
Mr. R.S. Finley
Ralph J. Moore, Jr., Esq.
Donald J. Munroe, Esq.
Mr. William C. Walpert
Harold A. Ross, Esq.
Devki K.Virk, Esq.
James L. Linsey, Esq.
Clinton J. Miller, III, Esq.
Mr. J.R. Cumby
1. In this decision, Switchmen and Trainmen are used interchangeably.
2. BLE defines cross-utilization as the extent to which employees at all levels, regardless of seniority, are used interchangeably and, on any given day, may be called for any job they are qualified to perform. BLE defines ebb and flow as the movement back and forth between the two crafts in response to fluctuations in the Carrier's business.
3. Nineteen employees worked in both train service and engine service during the period May 5, 1999 through May 5, 2000. Sixteen of the employees who worked in both train service and engine service are on the engineers' seniority roster. Two employees are engineer-qualified, but do not appear on the seniority roster. A third employee resigned while in training.
4. This is in contrast to the airline industry which was relatively new when the 1936 amendments to the Railway Labor Act extended the Act's coverage to air carriers. In the airline industry, crafts or classes have evolved with the industry's development.
5. In FEC, the UTU filed applications alleging representation disputes among FEC's trainmen and enginemen. At the time these applications were filed, the engineers and road conductors were represented by the Florida Federation of Railroad Employees (FFRE). Noteworthy in my view is that FFRE and UTU, as well as the Carrier, agreed that a consolidated craft or class was proper in FEC's circumstances.
6. For example, many positions, including clerks, trainmen, and engineers ebb and flow to train dispatcher positions. In addition, clerks and trainmen ebb and flow to yardmaster positions. In many cases, the employee may establish seniority in another craft but will not be required to join the second union until regularly assigned. Others may be required to maintain dual union membership in order to move between crafts. In any event, newly-rostered employees perform "extra" work in their promoted craft until their seniority permits them to be assigned a permanent position. The same is true for engineer-certified trainmen.
7. The "mandatory progression" provision of the UTU Agreement that has existed since 1985 is not part of the BLE agreement. This raises a serious question of whether a provision in one organization's agreement should be relied upon to affect the representation rights of another organization.
8. Work conditions and collective bargaining rules in the railroad industry are similar among crafts that perform similar work. This would be true, to some degree, for example, of maintenance of way employees, signalmen, or electricians who work outside; train dispatchers, operators, clerks, and yardmasters who generally work in an office environment; or carmen, mechanics, and boilermakers who generally work in a shop setting around heavy equipment. Such similarity is also a result of pattern bargaining and national settlements. For example, pay increases, health and welfare, overtime, holidays, and vacations, are generally considered generic portions of rail workers' collective bargaining agreements and do not vary considerably among crafts.
9. See 49 CFR § 240.107 (1991).