Clint Miller's closing remarks to NMB

Closing Statement by United Transportation Union
at the National Mediation Board

By Clinton J. Miller, Esq.
UTU General Counsel

July 10, 1999 - Washington, D.C.

Thank you, Madame Hearing Officer, counsel. May it please the board, the main issue here today concerns a craft or class determination by the board. The craft or class system of representation under the Railway Labor Act is designed to provide for an organized system by which employees can select representatives for collective bargaining purposes, and it is similar to NLRB bargaining unit determinations.

The board itself has stated that the most important consideration in craft or class determinations is "the intent of the Railway Labor Act in settling disputes and promoting stable labor relations." That is found at the NMB Manual at paragraph in Section 5.1.

The issue here is which grouping of employees will best be able to bargain with this carrier and provide effective representation of all employees who share the same work related interests.

The Representation manual in Section 5.1 identifies several factors that are relevant in doing a craft or class analysis. As the board has said, and I quote, "In determining craft or class issues, the board gives consideration to," and the factors are listed, "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."

And of those factors, the board has stated in the ABX Air case, 22 NMB 131 in 1995, in an Airborne Express, 9 NMB at 118, and I quote, "The factor of work related community of interest is particularly important." And UTU believes that this at bottom a community of interest case.

To be sure, there has always been a strong community of interest among all operating employees, but this community of interest has been enhanced and accelerated in recent years by the transition to a mandatory line of promotion across all groups, by the increased ebb and flow between groups when the mandatory promotions take place, and by the Incidental Work Rules that both parties made agreements about with the carriers in the 1985 and 1986.

A craft or class of train and engine service employees, previously recognized by the board since 1993 on short line carriers, would be the best for settling disputes and promoting stable labor relations with this carrier, particularly in light of the evidence introduced by the ongoing work of the Wage Rule Panels that both parties agreed to in their 1996 national agreements.

Operating employees have the same responsibility, which is to move locomotives and freight cars over the road from point to point in a safe and timely fashion, and in the yard, to gather, classify, break down and make up trains to accomplish that point to point movement.

Engineers and conductors share the duties necessary to control the direction and movement of locomotives, which, in turn, control the movement of the cars on the train. While the engineers operate the locomotive, they do so in response to the control of the conductor and assisted by trainmen or brakemen when they are required, that is, dead clear in this carrier’s operating rules.

Until the 1960’s most operating crews in road service had five or six employees to move trains, the engineer and head-in brakemen rode in the locomotive cab with a fireman, while the conductor and flagman, and swing brakeman in some cases, rode in the caboose at the rear. They all shared lookout duties. They all participated in common tasks such a passing, reading and responding to signals that were necessary for the safe operation of the train.

Yard crews did the classification and sorting of cars, but, in general, they did the same sort of things. Every operating employee was responsible for lookout and communications. The engineer operated the locomotive subject to the control of the conductor over the direction and movement of the train, and the switchman, threw switches, pulled pins and walked the train when necessary to locate trouble.

I would like to introduce a little bit of levity and tell a story about when conductors really conducted on a six man crew, and it came from the late Fred Hardin, who was previous International President of UTU, and whose stories are numerous, and I wish I could classify and categorize all of them.

But he told me one time when he was a young man, he was flagging for his father, who was the conductor on Southern Railway, and it was a six man crew. Fred rode on the head end, his father, the conductor, rode at the back. Before they departed to make their trip, his father came up and told the engineer -- this is in the days of steam -- and he told the engineer, do not stop at milepost 111.8, if you do with this length of train, you will cut the town of Spencer, North Carolina in half, and we have been having trouble with them with their local ordnance about cutting the town in half for too long. You can last for six more miles up at the next water tower. And, of course, the engineer did exactly what Fred’s father told him not to, he stopped at the milepost and cut Spencer in half.

And he told me, Clint, I got down out of that engine, I turned and looked back at my father trudging down the ballast at me, and I thought he was going to hit me for letting him do it. And he says, my father climbed right up aboard that engine and he told that engineer, you are relieved, get down out of this engine, I am going to get me somebody here that can take orders. And the engineer departed.

Now, that was in the days of a six man crew. And we have heard testimony about how the tasks were shared and the conductor really conducted back then. We are down to two employees now that are performing the work of the former six. All kinds of lines have been crossed with respect to what functions are performed. As to whether a conductor could do that in this day and age, I don’t imagine there would be too many engineers who would argue with David Hakey.

The employees today, particularly on short crews where we have gone from a six man crew to a two man crew, work in a very close proximity and have the same working conditions. They also work away, when that are on the road, from immediate supervision and instruction. They move to point to point independently. They share the same odd hours in road service and they frequently spend their rest periods at away from home terminals together. They are also all subject to call while they are at home, if they are rested, under the Hours of Service Act.

The substitution of diesel power for steam led to the gradual elimination of the fireman position, while other developments, such as the elimination of cabooses, let to the elimination of many brakemen positions such that in through-freight service, as we have discussed, land as has been evidence, most through-freight service is accomplished on this carrier with a crew of a locomotive engineer and a conductor. As a result, those two positions now work together by themselves. They work in and out of the cab. They share primary responsibility together for the direction and the movement of the locomotive and the train.

Both BLE and UTU made agreements in 1985 and 1986 that provided for the performance of many duties by either train or engine service employees, such as handling switches, making head and air tests, preparing reports, using communication devices, copy and handle train orders, and all of the work that was formerly performed by the fireman can be performed by both.

We heard about some arbitration cases that nibble around the edges, but there will always be arbitration cases about the meaning, interpretation and application of language, but the existence of the Incidental Work Rule, and particularly that the fireman position duties washed over both of them by means of the Incidental Work Rule can’t be denied. They both now perform some of the work of the other and they are much more dependent upon each other, having moved from a crew of six to two, than they were in the days of steam.

And it is obvious that all operating employees are subject to the same operating rules of UP when they operate the trains. These are collectively bargained rules, these are the operating rules of the carrier necessary for safe operation of trains.

Our witnesses have illustrated the extent to which both conductors and engineers are subject to the same operating rules and both of them have to deal with their complexity. They share responsibilities expressly provided for in those rules such as calling and interpreting signals. And disagreements are resolved by going with the most restrictive interpretation of the signal.

Both organizations have also collectively bargained schedule agreements which the operating employees have that contain, if not identical, then very many similar rules with respect to many subjects. The common collective bargaining agreement rules that we have talked about here are road-yard line of demarcation that deal with switching limits. Those can’t be changed without an agreement from both organizations. Interdivisional service, similarly, can’t be changed by the carrier without an agreement of both organizations. And we have also talked about common rules relative to vacations and Extra Boards.

The basis of pay is also common. While there are some differences in that engineers get certification pay, and conductors in most cases get productivity allowances or upfront money, short crew allowances, the basis of the basic pay is the same. The rates are different, but road employees particularly are paid under a complicated dual time and mileage pay scale, and in recent years, that basic day has been modified somewhat. We have gone -- both parties have gone from a 100 mile day on the road, to a 130 mile day on the road, but that dual basis still exists, and the modifications to it have been and must be made simultaneously in both BLE and UTU agreements.

Under the 1996 national agreement, operating employees who are subject to entry rates get a 5 percent pay bump when they take the mandatory promotion to conductor, and they get another 5 percent increase when they take the mandatory promotion to engineer, making it clear the relationship among the operating employees.

With regard to discipline that is meted out by the carrier and not FRA disqualification, it is true only locomotive engineers are federally licensed and subject to federal rules with respect to disqualification. But with regard to the action by the carrier, which is what we are talking about when we talk about class and craft, both of them are subject to the same discipline for infractions of the operating rules because they share a joint responsibility for the safe movement of that train over the road.

We heard about some differences, it was interesting that they could only come up with four, having culled them from the hundreds and thousands, and tens of thousands of cases. But it is apparent that in most instances, any infraction in an operating rule will result in the same or similar discipline to the conductor and to the locomotive engineer because both share the responsibility for the safe movement of that train.

A degree of community of interest has existed for a long time between the groups as a result of employee movement back and forth between the historic crafts, which was known as ebb and flow when that was from fireman to engineer. Switchmen and brakemen, in those days were the source of supply for conductors. With the elimination of the foreman, and with the 1985 agreement, that two level system of promotion is now one.

Every operating employee hired on the railroad must take promotion to conductor and must take promotion to engineer. There is no more two-tiered lines of promotion, the mandatory line of progression is beginning to end, for all operating employees, from the entry level positions through the conductor or yard foreman position, to locomotive engineer.

And it was technology and interest arbitration and agreements that eventually eliminated that fireman, and it was the same thing that eventually eliminated many brakemen from road trains.

The 1972 UTU agreement that used to be known as the "Fireman Manning and Training Agreement," the manning part dropped in 1986 when the fireman craft was eliminated by attrition, is the agreement by which locomotive engineers are trained. The 1978 UTU national agreement prior to the elimination of the fireman provided that firemen were the source of supply of engineers. The 1985 UTU national agreement, which eliminated fireman, changed that and created a system of mandatory promotion to engineer for post November 1, 1985 carrier employees, and it also, as we previously discussed, contained the Incidental Work Rule.

The 1991 national agreement contained the mandatory promotion for all employees, not just post ’85 employees and it also demonstrated the crew consist ruling of PEB 219 which became the agreement of the parties in Public law 102-29 and which led to -- because mandatory arbitration was at the end of the process in 1991 -- to the elimination of many brakemen positions, and the virtual elimination on this carrier of all brakemen positions on through-freights that did no switching en- route.

The significance of ebb and flow as to train and engine service employees is apparent, and it now is across the board, and no just as between firemen, who are no longer there, and locomotive engineers.

We’ve heard from our General Chairman testimony about the practical operation of that forced line of progression for post – ’85 employees and the removal from service of ground service employees who fail engineer training. It truly is a mandatory line of progression. You fail to qualify as an engineer, you’re out of service as -- you’re out of the service of the carrier.

We’ve even heard from the carrier by means of exhibit the effect of that mandatory line of progression, in that 1999 train service employees were promoted to locomotive engineer for the first quarter of 1999, and they received their certification. And almost 5,000 former train service personnel are now working and qualified in engine service.

This is not, however, to say that this case is purely a cross-utilization case, because it is not. And even the use of the terminology preponderance period is inappropriate, because it assumes two crafts. And, indeed, preponderance period rules in the rep manual are to determine eligibility, where people actually move back and forth between two crafts. The issue here is whether these operating employees of this carrier constitute a single craft or class.

It is true that commencing in 1993 in the Florida East Coast case the Board began to recognize a craft or class of train and engine service employees. And to date the Board has consistently done that on small carriers. But Union Pacific is not a small carrier. As the evidence presented by the BLE shows, it is the largest carrier in the country.

More importantly, where there is a mandatory line of promotion and ebb and flow, there’s not going to be the same kind of cross-utilization found on smaller carriers where the employees must be jack of all trades. Under the promotion and ebb-and-flow rules and practice, the employee movement between job classification doesn’t occur in a preponderance check period time frame, but it occurs as operational needs present themselves. Employees are promoted to engine service, rather than being temporarily cross-utilized. Also, I can’t fail to emphasize again that there is a joint performance of many tasks under the incidental work rules, even with a promotion to locomotive engineer.

The community of interest and ebb and flow is not proven by cross-utilization as an arithmetic matter, but rather by the right and the obligation of the employees to move on a semipermanent basis between positions and the obligation of both positions to perform joint tasks with a two-man crew.

There is, to be sure, evidence of cross-utilization in this context of movement to semi-permanent positions. Despite the inapplicability in our view of an absolute cross-utilization theory, there is evidence in this case that further bolsters the community of interest between these positions. As the carrier evidence has shown, there were 169 incidents of crossover work which the Union Pacific has declared were all emergencies, as if there are any non-emergencies on Union Pacific at times.

The amount of this crossover is probably atypically low, because it is a season of low absenteeism, a lot of people aren’t taking vacation in the first quarter of the year, and also it’s followed a period of intensive hiring and promotion to engineer to overcome the service problems that Union Pacific had and are well known in 1997 and early 1998.

We also did introduce anecdotal evidence of continued cross-utilization of this type in the testimony of General Chairman Art Martin.

In summary, at this point, there has been a strong community of interest that’s always existed between train service and engine service operating employees. The separation into two crafts from the formerly completely separate promotion ladders has occurred, and has been eliminated, such that there is a single mandatory line of progression. Employees are hired for the entry-level positions who are expected to master all the duties as they move up the ladder to serve to serve in more senior capacities and to obtain their FRA locomotive engineer certification. They move up quickly, sometimes more quickly than perhaps they should, but they all start out in the entry-level position.

I want to also point out that a lot of their training, and it’s evident from the evidence presented by both parties, is on-the-job training and mentoring, mentoring of conductors and yard foreman of the younger brakemen and switchmen, mentoring by the locomotive engineer of the conductor who is up for promotion. I think that there was some telling evidence presented by the BLE about the value of that mentoring. This is cumulative training. It’s not rocket science. It’s something that you have to feel. As the BLE witnesses made clear, you know more about how to move a train by being out there and actually feeling it than you do by any schooling or simulator that you have. And that, we would submit, adds to the community of interest that we’re talking about.

The employees who wash out, who don’t end up qualifying as engineers, are terminated from employment, making it clear that this is a mandatory line of progression. Once they qualify, they have rights to flow back into the conductor craft if their seniority as an engineer will not permit them to hold a position. In either capacity, as we’ve said, they do the same or similar tasks pursuant to the incidental work rules in moving the train. Thus, the operating employees to UTU now have a near total overlap in a community of interest with regard to collective bargaining agreement issues.

This has been a gradual transition to a system of universal mandatory promotion that to UTU has eliminated the last line of practical demarcation between train service and engineer service employees.

The 1991 and 1985 UTU national agreements require all new hires to take that mandatory promotion to conductor, and then to engineer. The statistics provided by the carrier show that even as to pre-1985 employees, who could take voluntary promotion to engineer, over 2,000 of them out of approximately 10,000 are now working in engine service. The promotion among the post-1985 employees are 2,754 out of 8,120 now working in engine service. The total trainmen or ground service employees certified as engineers so far is 5,877, A quarter of all operating employees. The total of post-’85 employees subject to mandatory promotion plus the pre-1985 employees taking voluntary promotion amount to slightly over 10,000, or 43 percent of all operating employees.

The industry and this carrier are rapidly approaching a system wherein all employees will be on mandatory promotion track since post-85 hires are now in the majority on this carrier. Moreover, it was acknowledged, and we introduced evidence, by BLE vice president in public statements that once this majority status occurs, there should be one craft or class, but UTU says that community of interest is not measured merely temporally; it exists now and on the basis of the factors that we discussed.

Indeed, to us, the most analogous precedent for the Board to use in making a judgment in this case is the decision in United Air Lines, 3 NMB 56. Under a system of mandatory promotion, the relationship between train service and engine service employees is directly analogous to the relationship between flight engineers and pilots in the United case; and in that case, the Board found a consolidated craft of flight deck crew members.

Currently, the UP has almost 6,000 employees in train service who are qualified to perform engine service. That’s about the same situation as existed in United, where the flight engineers were on a mandatory promotion track from flight engineer to co-pilot to pilot, and as the Board said in that case, and I quote, "A greater community of interest is hard to find." Unquote. This is because once there is this kind of mandatory promotion, employees in the junior classifications have a direct interest in the bargaining relationship that the senior group has with the carrier.

A single craft or class would promote the stability of collective bargaining relationships in the settlement of disputes, which is the keystone to representation under the Railway Labor Act.

A consolidated craft of train and engine service employees would contribute to stability between the operating employees and the carrier. It would eliminate the need for the carrier to pursue dual-track negotiations over the same subjects with two different organizations. Indeed, the work of the National Wage and Rule Panels, and particularly the joint agreement reached with regard to work, rest, fatigue, is demonstrative of that.

Because there’s so much overlap in work rules, changes in the same rules, as we’ve said, often require agreements by the carrier with two organizations, neither of which has the power by itself to effectively change the rules. All three sides have to agree, and that can lead to intractable problems.

One of the problems that we presented evidence about is recently UTU has reached agreement with the carriers -- is on the verge of implementing a change in the available health and welfare. A Blue Cross plan will soon be available as a result of UTU’s negotiations, in addition to the balance. But not all UTU members will be able to avail themselves of it because those UTU members who have availed themselves of the right to alternate membership in satisfaction of union shop obligations under the Railway Labor Act that are serving in the craft or class now of locomotive engineers, we have no way, without agreement of BLE, to permit them to benefit from the Blue Cross alternate of coverage that UTU has negotiated.

Further, any agreement that affects the pay relationship of the whole crew, which is now two people,, is unsettling to both unless it’s done in a single collective bargaining relationship where the internal structure can take the measure of what’s desired.

There will even be enhanced stability between employees. The United case indeed cited the prospect for dissension in the cockpit and the resulting potential safety concerns as one of the basis for consolidation of the flight deck crafts. The same point applies to the two employees who work together in train cabs, perhaps in spades.

With regard to the other issue in this case, the applicability of the railroad merger procedures, it seems to me that there is little doubt with respect to what’s been presented, and by the carrier as well, of the ongoing nature of the negotiations relative to the hub implementing agreements. Moreover, they have at their edges caused changes in representation. We heard about UTU’s representation of the engineers in the Memphis Union terminal having evaporated as a result of a hub implementing agreement application, and we heard about the same with respect to firemen on the former Cotton Belt that is part of this, and yet today, at Spokane International, which is wholly owned by Union Pacific, UTU is the representative for engineers.

Moreover, the Board itself has used the procedures in the application in this merger that was filed by the dispatchers’ organization and the twin applications that were filed by UTU and TCU together on a council in the UP-SP merger context. There can be no doubt that those Board previous applications and the facts that we heard about that there is an ongoing implementation make it plain beyond doubt that the merger procedures imply.

One last word. While it is in no way relevant because of the Lehigh Valley case and other Board decisions with respect to what could be termed raiding -- in other words, the Federation Constitution in no way governs what happens at this Board with respect to craft or class, and the Board has consistently held that, and particularly in the Lehigh Valley case.

I want to make it clear that neither I personally nor UTU part company lightly with the brothers and sisters of the non-operating organization or the affiliates of the federation. Indeed, I personally started out life in this business representing the non-operating unions. However, when the community of interest is such that is appears obvious that the operating employees are deserving of a more stable collective bargaining relationship, to paraphrase liberally Victor Hugo, no federation is so powerful as an idea whose time has come. The idea here is a single craft or class of train and engine service employees, and we would ask that the Board would so find.

Thank you, Madam Hearing Officer.