25 NMB NO. 11

NMB CASE NOS.

R-6555 (CR-6607)	R-6556 (CR-6608)

FINDINGS UPON

INVESTIGATION-

AUTHORIZATION OF

ELECTIONS

October 27, 1997

On December 26, 1996, the Transportation Communications International Union (TCU) invoked the Board's Procedures for Handling Representation Issues Resulting from Mergers, Acquisitions or Consolidations in the Railroad Industry, 17 NMB 44 (1990) (Railroad Merger Procedures) and filed applications for investigation of a representation dispute among personnel described as "Clerks" and "Carmen" employed by Illinois and Midland Railroad Company (IMRR).

The Board assigned Mediator Maurice Parker to investigate.

According to the Carrier, at the time these applications were received, these employees were represented by the United Transportation Union (UTU). By letter dated January 8, 1997, UTU President Charles Little advised the Board that it requested "not to be listed on the ballot."

On January 22, 1997, the Board asked the participants to provide information necessary to determine whether the transaction that created IMRR is covered by the Board's Railroad Merger Procedures. IMRR and TCU filed replies on January 30, 1997.

The carrier also asserted that its employees were cross-utilized. On March 18, 1997, IMRR provided preponderance information in support of its allegations that Clerks and Carmen are not separate crafts or classes on IMRR. On March 25, 1997, TCU filed a response asserting that separate crafts or classes of Clerks and Carmen are appropriate on the IMRR.

After conducting an additional investigation, which included reviewing preponderance records provided by the carrier and phone interviews with several IMRR employees, Mediator Parker issued rulings on April 29, 1997. Mediator Parker ruled that separate crafts or classes of Clerks and Carmen exist for Railway Labor Act purposes on IMRR.

On May 12, 1997, the carrier filed an appeal asserting that Mediator Parker's rulings were not supported by the record. TCU did not file a response to the carrier's appeal.

ISSUES

Are TCU's applications properly filed under the Board's Railroad Merger Procedures? If so, are "Clerks" and "Carmen" the proper crafts or classes on IMRR?

CONTENTIONS

IMRR contends that it is a new carrier and that TCU's application should not be considered under the Board's Railroad Merger Procedures. IMRR contends that, absent a showing of interest composed of authorization cards as required by the Board's rules, 29 C.F.R. § 1206.2, TCU's applications should be dismissed.

In the alternative, IMRR asserts that Mediator Parker's conclusions are not supported by the record and contrary documentation, if any, was not supplied to IMRR. The carrier further asserts that Mediator Parker misapplied the Board's preponderance test and refused to consider Board precedent on the standard of proof required of cross-utilization of employees. Finally, the carrier asserts that Mediator Parker failed to consider the existing collective bargaining agreement between the carrier and UTU.

TCU argues that the transaction under which IMRR acquired the assets of Chicago & Illinois Midland Railway Company is covered by the Railroad Merger Procedures. TCU asserts that the preponderance evidence demonstrates that the work performed by Clerks is predominantly clerical and the work performed by Carmen is predominantly car repair work.

FINDINGS OF LAW

Determination of the issues in this matter is governed by the Railway Labor Act, as amended, 45 U.S.C. § 151, et seq. Accordingly, the Board finds as follows:

I.

Illinois & Midland Railroad Company is a common carrier by rail as defined by 45 U.S.C. § 151.

II.

TCU and UTU are labor organizations and representatives as provided by 45 U.S.C. § 152, Ninth, of the Act.

III.

45 U.S.C. § 152, Fourth, give employees subject to its provisions, "... the right to organize and bargain collectively through representatives of their own choosing." The choice of the majority of any craft or class of employees shall be the representative of the craft or class for purposes of the Railway Labor Act.

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 in such a manner as shall insure the choice of representatives by the employees without interference, influence or coercion exercised by the carrier. In the conduct of any election ... the Board shall designate who may participate in the election and establish the rules to govern the election...."

STATEMENT OF FACTS

I.

IMRR acquired the assets, including the rolling stock and 98 miles of rail line, of the Chicago & Illinois Midland Railway Company (CIM) on February 8, 1996. Illinois & Midland Railroad, Inc.--Acquisition and Operation Exemption--Chicago & Illinois Midland Railway Company. STB Finance Docket No. 32862 (February 22, 1996). IMRR became a rail carrier when it acquired CIM's assets.

George Stern was the president of CIM. He remained with IMRR until February 26, 1996 when Spencer White became president. According to IMRR, CIM has ceased to exist as a common carrier by rail.

IMRR uses its own corporate insignia and letterhead. IMRR has posted its own signs at gates and in its yard. IMRR is in the process of repainting locomotives and other rolling stock acquired from CIM to reflect the IMRR markings. IMRR has its own routes and schedules which differ from the former CIM.

According to IMRR, before the transaction occurred, IMRR personnel conducted meetings with CIM employees to inform them of the procedures to follow if they sought work at IMRR. IMRR conducted job interviews and hired most, but not all, CIM employees. According to IMRR, CIM made "separation payments" to its employees who did not obtain employment with IMRR.

At the time of the transaction, IMRR voluntarily recognized UTU as the representative of all of its employees and entered into a collective bargaining agreement which placed all IMRR employees on a single seniority roster. However, that agreement provided that the employees maintained prior rights to work that they were qualified to perform based upon their experience. The agreement also provides the right to train for and exercise seniority to hold any position on the seniority roster.

II.

IMRR supplied potential lists of eligible voters for the crafts or classes of Carmen and Clerks. On those lists, IMRR identified nine employees who allegedly perform Carman work and eleven individuals who allegedly perform Clerk work.

IMRR asserts that these individuals are cross- utilized and do not perform work exclusively in a single craft or class. In support of its assertion, IMRR refers to its collective bargaining agreement with UTU which provides that any employee may bid on any position for which he or she is qualified. TCU asserts that the eleven individuals identified as clerks work predominantly as Clerks and the two individuals identified as Carmen on the nine person Carmen list work predominantly as Carmen. TCU does not seek to represent employees identified as machinists or electricians.

A. Carmen

IMRR submitted a list of nine employees as the list of potential eligible voters in the Carman craft or class. The nine employees on the Carmen list include employees with the job titles of Carman, electrician and machinist. Two of those individuals (D.W. Bennett and J.W. Lawyer) are listed as Carmen. Below the list, the Carrier noted:

Jobs listed reflect the duties employees perform during preponderance of work hours. Employees can and do perform Carman functions. We are not organized along traditional craft lines, and some of these employees also perform other than Carman functions, such as maintenance of locomotives.

IMRR submitted payroll records which specify the hours worked and the accounts from which the individuals at issue are paid. These records demonstrate that during the 90 day preponderance period (between September 17 and December 17, 1996), Bennett and Lawyer were paid as Carmen for all except two days of the preponderance period. Notations on their payroll records indicate derailments on each of the days where they were paid from another account.

According to IMRR President and General Manager Spencer White, employees paid under the classification "maintenance of way and equipment" who "regularly perform duties historically described as car repair" are cross-utilized. According to White, there were at least three examples of this cross-utilization during the preponderance period. However, the carrier submitted preponderance information for only Bennett and Lawyer, the employees listed as Carmen. IMRR did not submit preponderance material for the other seven employees on the list of potential eligible voters.

B. Clerks

There are eleven employees currently working at IMRR in job titles of transportation clerk, stores clerk, clerk, and secretary.

Of the eleven employees identified as Clerks, all but three were paid for all of their work from account number 050-5002. According to TCU, that account "indicates work performed in the Transportation Department as a clerk/laborer". The remaining three individuals were paid for work from account number 050-5002 indicating clerk/laborer work and from account numbers 035-5002, 035-5003 and 070-5002. According to TCU, these accounts represent either storehouse work or clerical work.

Mediator Parker interviewed four employees working in "clerk" positions about their work. These employees indicated that they billed freight charges, serviced customers, and entered data into the computer. However, the employees indicated that clerks at IMRR also handle inbound and outbound trains in the yard and handle switches and signals and perform dispatch work. IMRR does not employ yardmasters or dispatchers.

Another employee described his job as including taking care of the store room, unloading lumber from rail cars and loading the lumber onto trucks and paper work using the computer and purchasing and receiving. When asked to provide a break down of the time spent loading and unloading lumber versus clerical tasks, the employee estimated that he probably spent approximately 15 days per month loading and unloading lumber and about seven days per month performing clerical tasks.

The employees interviewed were all aware that they were to be cross-trained and cross-utilized with other crafts or classes. None of the employees holding clerk positions performed work traditionally performed by shop craft employees or by operating employees. None of the clerical employees interviewed had received training to work as a shop craft employee or an operating employee.

DISCUSSION

I.

IMRR has challenged TCU's invocation of the Board's Railroad Merger Procedures, 17 NMB 44 (1989). TCU, as the incumbent representative of Clerks and Carmen on CIM, invoked the Railroad Merger Procedures seeking to represent these crafts or classes on IMRR.

Under the Board's Railroad Merger Procedures, a "merger" is defined as "a consolidation, merger, purchase, lease, operating contract, acquisition of control or similar transactions." Railroad Merger Procedures, 17 NMB at 50. The Board finds that IMRR's acquisition of CIM's assets, including its track and its rolling stock, as well as the employment of most of its employees, is a transaction covered by the Railroad Merger Procedures. See Wisconsin Central Transportation Corporation Railroads, 24 NMB 307 (1995).

II.

IMRR asserts that TCU must submit a showing of interest supported by authorization cards. However, the Board's Railroad Merger Procedures permit an incumbent organization on an affected carrier to file a representation application on the new craft or class using as evidence of the showing of interest "authorization cards, dues check-off authorizations or seniority lists" with an affected carrier. 17 NMB at 51-52. TCU has filed a showing of interest in each case which complies with the provisions of the Railroad Merger Procedures.1

III.

In determining an appropriate craft or class, the Board examines a number of factors. Among these are composition and relative permanence of employee groupings along craft or class lines on carriers generally, as well as on particular carriers; collective bargaining history; the functions, duties and responsibilities of employees; and community of interest. Florida East Coast Railway, 21 NMB 35 (1993); National Railroad Passenger Corporation, 12 NMB 80, 92 (1985); National Railroad Passenger Corporation, 10 NMB 510 (1983).

The Board has considered many requests to depart from the "historical patterns of representation in the railroad industry" which provide the basis for craft or class determinations. See, for example, Kiamichi Railroad Company, Inc., 19 NMB 212 (1992); Dakota Minnesota & Eastern Railroad Company, 16 NMB 126, 130 (1989); Iowa Interstate Railroad, 13 NMB 271 (1986); Genessee and Wyoming Railroad Company, 12 NMB 261 (1985); Metro-North Commuter Railroad, 12 NMB 38 (1984); Ontario Midland Railway, 10 NMB 18 (1982). Recently, the Board has altered the historical patterns of representation in the railroad industry.

In Florida East Coast Railway, supra, the Board found that locomotive engineers, conductors and trainmen were cross-trained and materially cross- utilized, were covered by a single collective bargaining agreement and received the same fringe benefits. In that situation, the Board directed an election among employees in a single craft or class of Train and Engine Service Employees. Since that determination, the Board has directed several elections among employees in the craft or class of Train and Engine Service Employees.2

The facts of this case differ from those in Florida East Coast. Here, the employees at issue are covered by a single collective bargaining agreement which permits them to bid for any job for which they are qualified. However, there is insufficient evidence that employees have been cross-trained or cross-utilized. To the contrary, the evidence in this case demonstrates that IMRR employees have adhered to craft lines in performing work.

Review of the 90 day preponderance for Carmen shows that, for all but two days of that period, the two individuals for whom preponderance information was provided performed Carmen work.3 IMRR did not submit evidence that the other employees included on the list of Carmen performed Carmen work or would perform Carmen work in the future. Thus, the Board finds that a separate craft or class of Carmen exists on IMRR.

Review of the preponderance information provided by the Carrier for the eleven IMRR employees holding clerical titles demonstrates that they perform a variety of work traditionally performed by employees in the craft or class of Clerical, Office, Station and Storehouse Employees. Employees who perform work involving tasks other than straight clerical tasks generally perform laborer work loading and unloading timber.4 In R-1706, the Board discussed the craft or class of Clerical, Office, Station and Storehouse Employees in the railroad and airline industries and described the craft or class as including "employees of varying skills and abilities ranging from the highest type of technical clerical workers down the scale to janitors and laborers." National Airlines, et. al., 1 NMB 423, 438-439 (1947).

In this case, the Carrier has failed to provide sufficient evidence to justify deviation from established crafts or classes. Although the collective bargaining agreement permits cross-training and cross utilization, there is no evidence that the employees are cross-trained or cross-utilized with employees in the shop or operating crafts or classes.

CONCLUSION

Based upon the facts and circumstances of this case, TCU properly invoked the Board's Railroad Merger Procedures in its applications seeking to represent the Carmen and Clerks employed by Illinois & Midland Railway Company. Based upon the record in this case, the Board finds separate crafts or classes of Carmen and Clerical, Office, Station and Storehouse Employees. Accordingly, the Board converts CR-6607 to R-6555 and CR-6608 to R-6556 and finds disputes to exist in NMB Case Nos. R-6555 among Carmen and R-6556 among Clerical Office Station and Storehouse Employees employed by Illinois & Midland Railway Company. All mail ballot elections are hereby authorized using a cut-off date of December 17, 1996 with the applicant TCU on the ballots in both cases.

Pursuant to Section 11.2 of the Board's Representation Manual, the Carrier is hereby required to furnish within five calendar days alphabetized peel-off labels bearing the names and current addresses of those employees on the lists of potential eligible voters currently employed by Illinois & Midland Railroad. The ballot counts will take place in Washington, D.C.

A mediator will be assigned to conduct the election and to address any remaining eligibility issues.

By direction of the NATIONAL MEDIATION BOARD.

Stephen E. Crable

Chief of Staff