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NMB Filing
INTRODUCTION My name is Lance E. Ruck and I have permanent residence at 1525 Howze Street, El Paso, Texas 79903 and have been a dues paying member of the United Transportation Union (UTU) since 1974. During my membership with the UTU I have been elected to both local union offices and an International officer. Currently I hold the offices of Local Chairperson, Legislative Representative and Delegate for UTU Local 1571. In January of 1998, I first became aware of the actions of UTU International President Charles Little, by and through his agent, Mr. Clinton J. Miller, III to request a representation election on the properties of the Union Pacific Railroad (UP) for the creation of a "new craft or class of service" to be known as "train and engine service employees". Since that time, there has been a variety of correspondence between my office and another prominent UTU member to both National Mediation Board, the UTU International and members, and said correspondence is being made as an attachment to this written submission. Though it is clear from one of the attachments that the UTU International is more than willing to bring some witness to advocate their improper, if not illegal position, they have not afforded all members the same right/s. Documents made as an attachment are as follows:
As such, I am financially unable to be present to give oral testimony, however, I would respectfully request that this submission on my part, representing the feelings of a great number of UTU and BLE members, be made part of the written record of these proceedings. THE UTU INTERNATIONAL LACKS THE AUTHORITY TO MAKE THIS REQUEST The UTU is a labor union having approximately 75,000 active dues paying members, the great majority, about 60,000, of these dues paying members being employed in rail operating service in the crafts or classes of service of conductor, brakeman, switchman, engineer, fireman and hostler. The UTU was created in 1969 as the result of several rail labor unions merging under the flag of the UTU, and the basis of the unification was set forth under the "Unification Agreement" and the "UTU Constitution". There is one article of the UTU Constitution which serves as the cornerstone of the UTU, i.e. Article 80, which spells out the mandate of "craft autonomy" within the UTU. The basic premise is that absent a majority vote of each craft, no changes in "craft autonomy" can be accomplished. Article 80, in pertinent part, stating: "(e) The provisions of this Article may not be changed by the International Union, except, upon the approval of a majority vote of the members of each of the crafts represented by the United Transportation Union." In the instant petition before the National Mediation Board (NMB), UTU International President Charles Little has ignored his duties and responsibilities under the UTU Constitution, however, the membership of the UTU lacks adequate internal remedy to address this breach of trust by the highest elected officer. Simply stated, the UTU International President is in violation of his own oath of office, and UTU Constitution by even bringing this matter before the NMB, absent prior approval of the membership of the UTU. Congress was aware, many years ago, of the grave consequences of allowing elected union officers to act, absent control and input by the membership, and enacted a variety of laws to protect the rights of the individual members. ( See 29 USC 401 (b) and (c)) The rights of the individual members are at stake, and the post hoc rationalization of the UTU International President in telling the membership, that "they deserve a vote", is disingenuous, to the extent that the United States Government, by and through its agent (NMB), will allow a union constitution to be destroyed and desecrated, if NMB provides a vote for something "new". It would be analogous to the US President arbitrarily placing a vote before the people of the United States, with two choices, a dictatorship or a monarchy, when the preponderance of the US citizens are totally happy with a democracy, obviously the US Constitution would prevent such actions. THIS REQUEST BY THE UTU INTERNATIONAL PRESIDENT DOES NOT SERVE THE PUBLIC INTEREST, ONLY THE POLITICAL INTEREST OF THE UTU INTERNATIONAL PRESIDENT. A brief review of history will clearly show that a granting of this request of the UTU International President does not serve the public interest, however, the UTU International President has come before the United States Government in an attempt to take from dues paying members things of tangible value. The thirty year existence of the UTU, by and through its negotiating tactics, has shown a pattern of "compromise" for wages and benefits, however, the "compromise" has usually been of a nature that did not really have short term detrimental effects to the membership. Today, however, the long term consequence of these negotiating tactics have come full swing. As part of the 1985 UTU National Agreement, a two-tiered pay structure was established, and also a mandatory flow of employees hired subsequent to said agreement. Any employee hired after the date of the 1985 Agreement would come into rail service in a "rate progression", and have mandatory promotion to the craft of conductor and engineer. It must be clearly remembered that at that time in rail history there were always "surplus employees" and buyouts were common, not only for conductors, brakemen, switchmen, firemen and hostlers, but also for locomotive engineers. The resurgence of hiring did not really come about until the early 1990's, thus creating two separate and distinct "groups" within the rail industry, i.e. pre 1985 and post 1985 employees. The rail carriers were not permitted to hire employees into the craft of locomotive engineer, except from the ranks of UTU represented employees. Consequently, all employees after 1985 were hired into "ground service", with mandatory promotion to locomotive engineer. The 1991 UTU National Document saw the UTU acquiesce to representation matters pertaining to locomotive engineers, and a most salient fact is that the current UTU International President was part of the UTU National Negotiating Team that allowed this issue of "exclusivity" in terms of representation to flow to the Brotherhood of Locomotive Engineers (BLE). The UTU International and BLE then engaged in a series of divisive and otherwise non-productive court battles to arrive at the theory of "seniority retention". Unquestionably, this exercise did not benefit the members of either union, moreover, only set the stage for the flow of monies into the coffers of the respective unions. At this juncture, there are roughly sixty percent of the conductors, brakemen and switchmen for whom the UTU holds the collective bargaining agreement who are categorized as pre-85 and some forty percent who are post-85. Depending on which railroad, there are a variety of terms to describe each group, but basically there are the old (protected employees) and the new (unprotected employees). Most if not all of the new, i.e. post-85 employees are desirous of moving to the so-called "top of the food chain" and being promoted as locomotive engineers and most, if not all of the old, i.e. pre-85 employees could care less about it, since from a practical standpoint it would be counterproductive in terms of a reasonable exercise of seniority. Here there exists a definite problem, since rail operations are somewhat finite in nature, and the number of locomotive engineers is somewhat pre-determined by the track capacity, locomotive fleet, rolling stock, etc. Consequently, if all of the forty percent of the new post-85 employees were promoted as locomotive engineers, there would definitely not be jobs for all of them as locomotive engineers. Hence, though promoted as a locomotive engineer, these employees would be relegated to work in the crafts of switchman, brakeman and conductor. Though on a daily basis the American public is made aware of the innovative and technological changes in the railroad industry, little has changed concerning the work which is done. There are still cut levers, drawbars, switches, handbrakes, bleeder rods, and even though trains would appear to be "unit" operations, the cars on same are destined for various locations. There is a saying, regardless of how many professional people, computers, etc, that exist, you still need a man with a shovel to dig a hole. This is more than true in the rail industry. The International President of the UTU, is aware that most of the new (post-85) employees, when promoted as locomotive engineers, will usually opt to continue to pay dues to the BLE, even if they are unable to work as a locomotive engineer. From a financial standpoint, this does not create good business, i.e. the only source of revenue to the UTU International is from the dues of the members, and if membership declines, revenues decline. Simply stated, the UTU International President is well aware that the "die is cast", and unless he does something creative and improper, if not illegal, he and his group of supporters may lose it all. The problem is, and the concern should be, what about the pre-85 employees? This presents a true dilemma to all who would view the situation, in that the Supreme Court has ruled and upheld that actions of a union cannot be "arbitrary, discriminatory or in bad faith", and further that a cause of action under the EEOC guidelines can be had, absent the exhaustion of internal remedies under the Railway Labor Act, as amended. In arguing the functional integration of the employees and commonality of interest, with reliance on the Florida East Coast decision, the UTU International President has overlooked one very key issue. The pre-85 employees have no commonality of interest with locomotive engineers, save that they do work as members of the crews, and likewise, the preponderance of pre-85 locomotive engineers have no experience in the crafts of switchman, brakeman or conductor, save working as members of the same crew. Any reasonable man could easily see that the functional integration could only possibly apply, in extremely isolated instances, to a small minority of the involved employees. (The issue of the so-called flowback, is only in theory, since based on knowledge and belief, the provisions of Article 6 of Arbitration Board 559, have never been implemented on any Class I railroad.) To then allege that it would apply to those with greater seniority, i.e. older employees, would on its face value seem "discriminatory" toward a group of similarly situated employees. The current International President of the UTU has some degree of expertise in these types of perplexing dilemmas, and a careful review of the Witt Award which flowed from PEB 219 with respect to Southern Pacific employees, shows that, in at least one instance, the rail carriers were allowed the right to utilize "involuntary severance" of surplus employees. There is one distinct and legitimate difference in the matters before the NMB. The Witt Award came as the result of the alleged "severe financial condition" which existed on the Southern Pacific Railroad. As such, it arguably served the public interest, since if the Southern Pacific had not been afforded special handling, the taxpayers of the United States would have been burdened with a situation much more costly than the demise of the former Rock Island. In today’s environment, such is not the case, and though the Union Pacific continues to struggle with service problems, financial viability is not at issue. The issue of financial viability would not hold true on any other Class I carrier. THE POSITION OF THE UTU INTERNATIONAL IS FLAWED, SKEWED AND DOES NOT CONFORM TO FACT, REASON OR LAW. The UTU International is attempting to take isolated circumstantial occurrences and place them in a logical perspective to arrive at an overall picture which does not conform to actual events. In simple terms, they are grasping at straws. Since the 1985 UTU National Agreement, and predominately occurring on the properties of the Union Pacific since 1993, employees have been hired into the craft of switchman/brakeman and are then promoted to conductor and later as a locomotive engineer. Employees so situated represent a marked minority of the operating craft employees on the Union Pacific. They represent the "next generation" of rail employees, to the extent that through a normal exercise of seniority, they will be able to flow to any operating craft job. The craft of locomotive engineer represents the only operating craft in the railroad industry that is federally licensed, with the exception of hostlers and firemen (commonly referred to as student engineers). None of the employees in the craft of switchman, brakeman or conductor are required to hold any type of federal licensing. As such, it is not as the UTU International would allege, i.e. an apple/apple comparison, but moreover, an apple/orange comparison. The UTU International has alleged that all these employees fall under the same "operating rules", which is a misleading statement, since the Union Pacific General Code of Operating Rules applies to all employees. Would the UTU International argue that there is commonality between a carrier officer and the "new craft or class of service", and that there is a functional integration in their job responsibilities since a carrier officer falls under the General Code of Operating Rules? Logic would say no, however, in the self-preservation mode of the UTU International at this stage, their own actions have shown that their decisions are not based in logic. The UTU International has placed great emphasis on the decision arrived at in Florida East Coast, however, there are few if any parallels. When the unions were decertified on the FEC in the early 1960's, the FEC, by and through its management, put in place a system of hiring and promotion which over the years provided for the so-called "functionally integrated" employee, i.e. employees who were able to work in all forms of employment on the railroad. Because there were no labor agreements in place, "functional integration" was a condition of employment for those employees. The FEC did maintain the framework of "crafts", however, they were not recognized in the same respect as is the case on the Union Pacific. The safe and efficient operation of the Union Pacific depends to a large extent on the preservation of craft lines within the operating crafts. Absent same, employees will become the so-called "jack of all trades, master of none." Presently there are employees in yard service, train service and engine service. Each performs a necessary part of the daily operation of the railroad. When the Federal Railroad Administration fully investigated the Union Pacific following and throughout the "meltdown" of the UP, one of the findings addressed the cross utilization of employees and lack of adequate training. This cross utilization did not enhance the safety of the operation, nor did it benefit the public interest. Additionally, most, if not all collective bargaining agreements and seniority rosters on the UP and other Class I railroads are separate and distinct with respect to "craft distinctions" for purposes of rates of pay, working conditions, and job preference. What the UTU International has proposed, would in effect, serve to adequately "moot" most, if not all of same. It is interesting to note that the UTU is in the process of completing the "hub" negotiations for all areas of the railroad under the provisions of New York Dock II conditions as were imposed in FD 32760 by the Surface Transportation Board (STB). These agreements were reached for the most part through collective efforts between the carrier and the UTU, with some coming from the arbitral process. As such, the changes which are before the NMB, as petitioned by the UTU International, would have the net effect of changing the rates of pay and working conditions for the employees represented, not only by the UTU, but also by the BLE. These changes are attempting to be accomplished absent any adherence or compliance with the provisions of the Railway Labor Act, as amended. This represents a major change in working conditions, and the actions of the UTU are not only improper, but also illegal. There is one further skewed, if not illegal, logical conclusion that could be reached by any reasonable man if the UTU’s actions are extrapolated to the fullest extent. Arguendo, it could be assumed that if the NMB grants the petition of the UTU, and the representation election is held and the UTU wins, then the same pattern would follow on all Class I rail properties. The next effect will be the elimination of one of the two remaining unions that represent operating employees handling business before the First Division. In this scenario, the congressional intent and legislation that serves to prevent undue influence in affairs of the employees by employers would be removed. Simply stated, a condition of employment in any rail operating craft would be membership in the UTU, thus creating a closed shop, not the union shop which is a true protection for the rights of the employees under the Railway Labor Act, as amended. CONCLUSIONS The UTU International has made a decision to move forward with this petition to the NMB, in the face of sanctions imposed by the AFL-CIO, and the scorn of all labor. They have engaged in a renegade operation that will provide little to any benefit to the dues paying members of the UTU and definitely does not serve the public interest. It will only serve the private interests of a selected few within the UTU. In the time which has elapsed since the passage of Staggers, the face of the rail industry has changed. Institutions which were part of American history and our way of life have gone into the annals of folklore, thus the preservation of institutions has not been necessary in the public interest. Never has the arm of the US Government facilitated the preservation of institutions unable to keep pace with the needs of the American economy, conversely, we have become somewhat Darwinian in our approaches, i.e. survival of the fittest. The normal economic forces of the capitalistic machine will provide winners and losers, it is not the position of the US government to give preference in these instances. I have not addressed any of the current problems concerning the finances of the UTU, which apparently are the subject of ongoing investigations by the US Department of Labor, US Department of Justice and the Federal Bureau of Investigation, not limited to subpoenas having already been issued by a Grand Jury, since these are matters properly before other jurisdictions. I am available telephonically for any questions concerning this written submission.
Respectfully submitted, Lance E. Ruck
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