BLE appeals bitter NMB split decision to destroy operating crafts at Terminal RR

In an almost unprecedented split decision, the National Mediation Board has ruled 2-to-1 to destroy the crafts of locomotive engineer and switchman on the Terminal Railroad Association of St. Louis (TRRA).

In essence, two of the three NMB members sided with the United Transportation Union saying that operating crafts were combined and that a representation dispute existed among operating rail employees on the small TRRA.

The Brotherhood of Locomotive Engineers, however, filed a petition for reconsideration of the NMB's December 21 ruling, citing numerous "fatal flaws in legal analysis," including a lack of cross-utilization of engineers and train service employees.

In a blistering dissent, NMB Chairman Ernest DuBester emphasized that the UTU and BLE should decide between themselves if they should ever merge and that the NMB should not determine their fate. He said that 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," DuBester said. "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."

In their majority decision, NMB members Magdalena Jacobsen and Francis J. Duggan "deviate(d) from the historical patterns in the railroad industry," DuBester charged. He said that Jacobsen and Duggan largely ignored more than six decades of established NMB principle regarding historical patterns of representation in the railroad industry.

"It appears that certain members of the NMB believe that it's okay to ignore all precedent and engage in social and labor engineering to change an established system based on self-determination in favor of creating a new one that supports a rogue union operating outside of the AFL-CIO," said BLE International President Ed Dubroski.

Dubroski noted that the UTU is now trying to do on the Terminal Railroad what it failed to do on the Union Pacific Railroad. A few hours after announcing the split decision in the Terminal Railroad case, the NMB denied the UTU's appeal of its decision in the Union Pacific case dealing that union a major blow.

TRRA has approximately 125 operating employees and is a small non-Class 1 railroad owning approximately 200 miles of track in Missouri and Illinois. The engineers' seniority roster consists of 46 BLE-represented employees. The switchmen's seniority roster consists of 160 names with 118 employees in active service represented by the UTU. Forty-one of the 46 employees listed on the engineers' seniority roster are also listed on the switchmen's seniority roster.

In his dissent, DuBester talked at length about the Union Pacific case (see related story on Page 1) and the labor panel's ruling in favor of the BLE.

"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," DuBester said. "For that reason, this dissent is, in essence, an affirmation of that prior Board order adopting the panel's determination."

He added, "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. In my view, those circumstances do not exist."

DuBester knocked down the notion that the TRRA and the Florida East Coast Railroad (FEC), which has a craft and class of train and engine service employee, are similar situations. "Unlike FEC," DuBester said, "there is no evidence in this case that TRRA's engineers, trainmen, and conductors are extensively interchanged and materially cross-utilized."

DuBester pointed out obvious distinctions between the operating crafts on the TRRA which the majority conveniently overlooked, including the fact that locomotive engineers must be certified and licensed to do their jobs by the Federal Railroad Administration.

In defending the distinction between the operating crafts on the TRRA, DuBester said, "While the work and working conditions of engineers, conductors, and trainmen is interrelated to some degree, 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.

"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," DuBester said. "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," DuBester said, "the NMB's role in determining craft or class should not be confused with the responsibilities and decisions of autonomous labor organizations."

In its petition for reconsideration, the BLE cited a 90-day test period in which - out of 1,957 assignments - only 19 locomotive engineer assignments were performed by train service employees. The BLE also cited the fact that of 4,227 train service assignments, only 26 were performed by engineers. The BLE questioned how the NMB could use such "fuzzy math" to rule that "over 1/3" of the engineers worked both as engineers and switchmen during the 90-day test period.

"That is, by no stretch, the significant material cross-utilization which is the unconditional prerequisite for combining the two separate crafts," the BLE stated in its petition. "For that reason alone the Board was duty bound by its own long line of consistent decisions to dismiss UTU's instant application."

The BLE also argued that the NMB majority "closed its eyes" to a myriad of long-standing decisions regarding craft structure and substituted "an alternate series of criteria which it ultimately applied, purporting to justify creating a combined engine and train service craft or class."

Further, the BLE argued that while the NMB claims to have made the TRRA ruling in an effort to "promote stable collective bargaining and the peaceful resolution of disputes," it will only succeed in creating chaos and instability if the TRRA ruling is allowed to stand.

"Indeed, any knowledgeable observer of the (rail) industry would understand that, if anything, instability and chaos would likely result from upsetting the historical pattern of the separate representation of engineers."

The BLE blasted the NMB majority's reasoning that the crafts should be combined because they "share a community of interest," accusing the NMB of downplaying differences in core duties and emphasizing a "smattering of mundane similarities in the incidental aspects of the job functions."

"The majority's determination to paint a distorted picture by emphasizing the 'similarities' of the clearly distinctive jobs is incredible at best and disingenuous at worst," the BLE petition states. "Indeed, the 'logic' of the majority's position also would mean that pilots and flight attendants have similar job functions and duties because, although only pilots operate the aircraft, both classes of employees inspect equipment, work on airplanes, share similar work schedules, communicate with passengers, and practice safe work habits. At bottom, the manner in which the majority has diminished the importance of and the uniqueness of the engineer's functions plainly appears explicable only as a result driven initiative: to end the separation of two decidedly different crafts."

A complete copy of the BLE's motion for reconsideration is available here:
http://www.ble.org/pr/news/reconsideration.pdf
 
The NMB's TRRA split decision is available here:
http://www.ble.org/pr/news/nmb_r6799.pdf

2001 Brotherhood of Locomotive Engineers