The Open & Shut Case:

Drawing from previous National Mediation Board decisions, Union Pacific documents, federal law, union rules and even a UTU manual, the BLE presented a clear-cut case against the UTU application to hold a representational election for a single craft of "train and engine service employee."

At the heart of the BLE case was the irrefutable evidence that "cross-utilization" between locomotive engineers and trainmen has been so miniscule on the Union Pacific as to render UTU's application largely moot. UP documents show that more than 99 percent of engineers perform only as engineers during the first three months of 1999, and that more than 99 percent of all trainmen performed only as trainmen.

The NMB has consistently rejected consolidating crafts and class even on shortline railroads, unless a significant amount of cross-utilization has occurred. In the one case where the crafts were consolidated, on the Florida East Coast Railroad, the evidence showed that more than one-third of all trainmen performed as engineers.

Besides showing that locomotive engineers and train service employees were separate and distinct crafts and classes, BLE attorneys George Cohen and Harold Ross also argued strongly that the UTU had failed to make the requisite showing of interest by locomotive engineers to prove that there is a representation dispute on the Union Pacific. Under NMB rules, the UTU application should have been accompanied by valid authorization cards from a majority of engineers. No card were submitted.

Below: After the July 6th rally and march, Kevin Peek, W.L. Morris and other BLE Members picketed NMB's headquarters for two days. Below Right: Ben Lee makes sure NMB officials see his message.

And, although the UTU filed its application under the NMB's Merger Procedure guidelines, it failed to show that the "size, composition and functions of the employee workforce" has changed significantly as a result of the merger between UP and Southern Pacific Railroad, the BLE argued.

Presiding at the July hearings was Benetta Mansfield, a senior hearing officer who was conducting the "fact-finding hearing" for the three member board. Transcripts of the hearings, plus the legal briefs and rebuttal briefs submitted by the two sides, are being reviewed by the two current members of the board. One board seat is vacant, and it's unclear if the board will issue a decision before a third member is seated.

BLE witnesses included BLE Research Director Dennis Simmerman; Michael Russell, a nine year veteran of Union Pacific and an engineer since 1992; Rick Radek, director of the BLE Arbitration Department; and UP General Chairmen Michael Young, Marvin Alex Mitchell and Lee Pruitt Jr.

Following are some of the highlights of the BLE case:

• The UTU could not prove cross-utilization of UP/SP employees. Union Pacific data showed that over a three month period, the average number of 22,700 employees ­ 9,200 engineers and 13,500 train service employees ­ worked a total number of 1,204,435 separate "starts." During that time, only 89 indivisuals were cross-utilized for a total of only 264 starts. So Union Pacific cross-utilized employees 0.02 percent of the time and less than 0.5 percent of the employees worked outside their craft.
• To demonstrate the engineer's specific duties, apart from those as trainmen, the BLE introduced into evidence a Union Pacific manual and 18-minute training video on locomotive inspection, as well as a UTU manual describing he job of the engineer.
• Congress has decreed that no other employee can handle the controls of a locomotive engine. According to the 1988 Rail Safety Improvement Act, all locomotive engineers must be certified using federally imposed standards and then follow rigorous regulations.
• The BLE proved that the engineer's core duties and responsibilities were unique to that position, requiring special skills and knowledge, and a constant exercise of judgment.
• The BLE described how "event recorders" chronicle the engineer's locomotive operation, and that engineers sometimes are disciplined based on the data from recorders. Engineers also have unannounced compliance tests required by federal law to prove that they maintain the skills and high standards necessary to operate the train in a safe manner.
• Under UP/SP collective bargaining agreements, an employee holding both engineer seniority and train service seniority cannot "cross-bid" since they are mutually exclusive. UTU President Charles Little claims that he would uphold the seniority system.
• The UTU contended that there is an increased "ebb and flow" between the crafts. But UP records from Jan. 5 to April 5 of this year showed a total of only 390 employees ­ less that 2 percent ­ were affected by the business fluctuations. It happened only with the most junior engineers.
• BLE attorneys dismissed the UTU's contention that the engineers and train service employees performed the same incidental work. They allowed that the work was "incidental, not consequential" activity. The minor duties did not go to the heart of the duties and responsibilities of the engineer.

The BLE also shredded UTU's argument that a 1961 NMB decision on United Airlines should be used as a precedent. In that case, the Board determined that the craft of the flight engineer should be abolished and those people merged with the craft of pilots. However, of the 624 flight engineers in service, all but 17 had their pilot's license.

Not only do these figures bear no comparison to the number of conductors holding engineer's certification, but the Board specifically said that its ruling in the then-evolving airline industry could not be applied to the historically self-organized rail industry craft structure.

And the BLE lambasted UTU's contention that combining the crafts and having one union would be best for settling disputes and promoting stable labor relations. After more than 100 years of bargaining with UP and its predecessor companies, "the relationship between UP and the BLE is, as a matter of reality and common sense, as mature and long-standing as any labor-management relationship extant," the BLE argued.