29 NMB No. 46

April 10, 2002

Mr. L. J. Finnegan

Assist. VP-Labor Relations

Consolidated Rail Corp.

2001 Market St., 16th Floor

Philadelphia, PA 19103

Jeffrey S. Berlin, Esq.

Sidley Austin Brown

& Wood LLP

1501 K Street, NW.

Washington, DC 20005

Ronald M. Johnson, Esq.

Akin, Gump, Strauss, Hauer & Feld, LLP

Robert S. Strauss Building

1333 New Hampshire

Avenue, NW.

Washington, DC 20036

Clinton J. Miller, Esq.

Kevin C. Brodar, Esq.

Associate General Counsel

United Transportation Union

14600 Detroit Avenue

Cleveland, OH 44107

Mr. C.A. Iannone, Vice Pres.

United Transportation Union

57 Acres Drive

Ridley Park, PA 19078

Mr. A.D. Compitello, Pres.

Fraternal Order of Police,

National Labor

Council-Conrail I

199 Princeton Road

Palin, NJ 08859-1265

Mr. Mark Wilson, President

FOP-NLC, USPS 2

32234 39th Avenue S.

Auburn, WA 98001

Re:	File No. C-6745/Case No. R-5892

Consolidated Rail Corporation/FOP, NLC-Conrail 1/UTU

Gentlemen:

This determination addresses the January 24, 2002, United Transportation Union (UTU) request to transfer the Fraternal Order of Police, National Labor Council-Conrail 1 (FOP, NLC- Conrail 1) certification in NMB Case No. R-5892, covering the Police Officers below the Rank of Captain craft or class, employees of Consolidated Rail Corporation (Conrail) to the UTU. For the reasons discussed below, the National Mediation Board (Board) finds the organization certified in NMB Case No. R-5892 was inadvertently identified as the Fraternal Order of Police (FOP), and the correct title of the organization is the Fraternal Order of Police, National Labor Council (FOP, NLC). Furthermore, the facts establish that the FOP, NLC no longer exists and the independent organization FOP, NLC-Conrail 1 retains NMB Case No. R-5892 certification. Therefore, the Board grants the UTU's request and transfers the FOP, NLC-Conrail 1 certification to the UTU.

I.

REQUEST FOR TRANSFER OF CERTIFICATION

The FOP was certified to represent the Police Officers below the Rank of Captain craft or class, employees of Conrail in NMB Case No. R-5862. Consolidated Rail Corp., 16 NMB 377 (1989) (Conrail).

The UTU request, signed by Bryon A. Boyd, International President, UTU, states, in pertinent part:

[O]fficers from both the United Transportation Union ("UTU") and FOP met to discuss a merger. In December 2001, the FOP submitted to its members by mail, and in accordance with its constitution . . . a resolution asking if the members wished to merge with UTU and have UTU represent them.

On January 7, 2002, the members of FOP, voted by a margin of 48 - 5, to merge with UTU and have UTU represent them.

The request includes the following supporting documents:

•	The Collective Bargaining Agreement between Conrail and the FOP, NLC-Conrail 1;

•	The FOP, NLC-Conrail 1 Constitution; and

•	A January 7, 2002, letter from Gregg Bernstein, CPA, Gregg Bernstein & Associates, P.C., to Mr. Alfred Compitello, President, FOP, NLC-Conrail 1, certifying the results of the merger ballot: 48 votes "in favor of the proposed merger with UTU," and 5 votes "against the proposed merger with UTU."

II.

CONRAIL'S CONTENTIONS

Conrail contends that the UTU's request for transfer of certification is "invalid" for the following reasons:

The Fraternal Order of Police (FOP), a national labor organization with thousand of members, is the certified collective bargaining representative of the Police Officers below the Rank of Captain craft or class at Conrail. The FOP has not voted to merge with UTU. Only a local of the FOP, the FOP, NLC-Conrail 1, has voted to merge with the UTU.

Conrail has entered into significant collective bargaining agreements covering the craft or class with the FOP and on February 16, 1990, Conrail entered into an agreement establishing Public Law Board 4877 to consider grievances with FOP. Any Conrail collective bargaining agreements with the organization, FOP, NLC-Conrail 1, are of "no consequence" with regard to the claimed merger with UTU. Because UTU's request for transfer of the certification is based on a vote by the FOP, NLC-Conrail 1, a local organization and not the FOP, the exclusive representative, the request must be denied.

The UTU's request is premature because the UTU has not claimed that the merger has occurred and has not furnished the Board with "a copy of a formal Conrail No. 1/UTU merger agreement." In addition, for a merger to occur "[t]he Constitution of Conrail No. 1 would have to be amended . . . in Article XX . . . only at the local union's annual meeting . . . 'during the month of July or August.'" Since neither of these events has occurred, the "UTU is plainly jumping the gun," and the request should be denied.

III.

UTU's CONTENTIONS

The UTU contends the request for transfer of certification should be granted for the following reasons:

Conrail does not have standing to raise any questions concerning the merger between the UTU and the FOP, NLC- Conrail 1. Only FOP, NLC-Conrail 1 members have standing to raise such issues.

The FOP, NLC was created to be the collective bargaining representative of Conrail police officers and the United States Postal Service Police (USPSP). The FOP, NLC-Conrail 1 has a licensing agreement with the FOP to use the FOP trademark. There is no other relationship between the FOP and the FOP, NLC-Conrail 1, which is otherwise an independent labor organization. In NMB Case No. R-5892, the representation application was made in the name of the FOP, NLC and the ballots bore the name FOP, NLC. The Board's 1989 certification of FOP was merely "a short-hand version of . . . the full title [FOP, NLC]."

Furthermore, Conrail "has no authority to interpret or apply a union's constitution or deal with internal union matters." Negotiations on the UTU/FOP, NLC-Conrail 1 merger began in October 2001 and by December 20, 2001, the FOP, NLC-Conrail 1 Executive Board submitted the merger agreement to the Organization's 58 members for a vote. The merger was approved by a vote of 48 in favor and 5 opposed. The merger between the two organizations was consummated and the UTU's request for transfer of certification should be approved.

IV.

FOP AND FOP, NLC CONTENTIONS

The FOP and the FOP, NLC did not make submissions.

V.

STATEMENT OF FACTS

A.

NMB Case No. R-5892

The application for representation in NMB Case No. R-5892 identifies the organization seeking authorization to represent the Police Officers below the Rank of Captain craft of class at Conrail as: "Fraternal Order of Police, National Labor Council."

The ballot displays the names of the two competing organizations in the representation election as: "International Brotherhood of Teamsters-Railroad Police Officers" and "Fraternal Order of Police, National Labor Council."

The Board's Report of Election Results identifies the names of the two organizations as: "International Brotherhood of Teamsters" and "Fraternal Order of Police." Finally, the certification identifies the "Fraternal Order of Police" as the duly designated and authorized representative of the craft or class of Police Officers below the Rank of Captain at Conrail. Conrail, above.

On October 19, 1989, Robert Flake, President, FOP, NLC wrote to Charles R. Barnes, Executive Director, National Mediation Board, requesting that the certification be corrected,

to indicate that the NLC and not the Fraternal Order of Police is the certified collective bargaining representative of the craft or class of Police Officers below the Rank of Captain, employees of Consolidated Rail Corporation. . . .

The NLC -- a labor organization headquartered in Joliet, IL is independent from the Fraternal Order of Police and there has not been any question that it was the NLC which was seeking to represent this craft or class of employees.

B.

The Fraternal Order of Police, National Labor Council

During the Board's investigation many witnesses were interviewed concerning the FOP; the FOP, NLC and the FOP, NLC- Conrail 1.

Allen S. Kinzer, Esq., provided legal counsel to the FOP on labor matters at the time the FOP, NLC was created. Kinzer stated that the FOP saw a need for labor organizations to represent multi-jurisdictional and national police organizations. Kinzer stated, since the FOP's structure did not fit that purpose, the FOP, NLC was created. The FOP, NLC was incorporated in the District of Columbia to represent employees under the jurisdiction of the National Mediation Board (Board), the National Labor Relations Board (NLRB), and the Federal Labor Relations Authority (FLRA). The FOP, NLC-Conrail 1 was the first local of the FOP, NLC. Some time in 1992 or 1993, the USPSP was added and represented by the local labor organization the FOP, NLC- USPS 2. In the mid-1990's, FOP's interest in the FOP, NLC waned. The FOP, NLC had no board meetings and no president for some time. Kinzer's representation of the FOP ended in the late 1990's, but he understood that the FOP, NLC had been dissolved by the FOP, recently.

Mark Wilson, President, FOP, NLC-USPS 2, stated that the FOP, NLC-USPS 2 was certified by the NLRB to represent postal police officers around 1990. He explained that the FOP, NLC was created to bring collective bargaining rights to federal police officers. He said the plan never worked and there have been no FOP, NLC meetings since 1994. Wilson stated that this past year, the FOP decided there was no reason for the FOP, NLC to exist. Therefore, the FOP, NLC-USPS 2 affiliated with the labor committee of the FOP, DC Lodge 1. Wilson stated that the FOP, NLC-USPS 2 has maintained its name to keep the goodwill and corporate identity of the FOP trademark.

Stephen G. DeNegis, Esq., counsel to many FOP locals, stated that in 1996 "[t]he United States Treasury Police Association, Texas Lodge 50, Fraternal Order of Police, National Labor Council Local 3" (FOP, NLC-BEP 3) was certified by the FLRA to represent the police bargaining unit at the Bureau of Engraving and Printing, Western Currency Reserve, Fort Worth, Texas (BEP). Department of Treasury, Bureau of Engraving and Printing, Western Currency Reserve, Fort Worth, Texas and United States Treasury Police Association, Texas Lodge 50, Fraternal Order of Police, National Labor Council Local 3, Case No. DA-RP-60046, September 6, 1996. DeNegris said that he filed to amend the FOP, NLC-BEP 3 certification because the FOP, NLC no longer met legal requirements of a labor organization under 5 USC § 7101, et seq. He stated that the FOP, NLC-BEP 3 needed to be structured independently of the FOP, NLC. The FLRA amendment of recognition and certification was issued to the newly named organization "The United States Treasury Police Association, Fraternal Order of Police, Texas Lodge 50" (FOP, Lodge 50). Department of Treasury, Bureau of Engraving and Printing, Western Currency Reserve, Fort Worth, Texas and United States Treasury Police Association, Fraternal Order of Police, Texas Lodge 50, Case No. DA-RP-60046, October 26, 2000. FOP, Lodge 50 is an independent labor organization using the FOP trademark, DeNegris said.

Tim Mullaney, Chairman, FOP National Labor Services Committee, stated that the FOP National Board dissolved the FOP, NLC in August 2001. Mullaney says even when the FOP, NLC was in existence, all three units, Conrail 1, USPS 2, and BEP 3 operated separately and independently under a lease agreement to use the FOP trademark.

The DC Corporation Office records establish that the FOP, NLC, Inc. was created on August 24, 1989, as a not-for-profit corporation (Registration ID #893156). Ms. Edelin, DC Corporation Office, stated that the FOP, NLC, Inc.'s last annual report was filed in 1995 and the corporation was revoked by the DC government on September 8, 1998.

VI.

DISCUSSION

The Railway Labor Act (RLA) requires only that the Board investigate a transfer of certification based on a union merger rather than mandating any procedures for such an investigation. Consolidated Rail Corp., 28 NMB 30 (2000) (citing Continental Airlines, Inc., v. National Mediation Board, 793 F. Supp. 330 (D.D.C. 1991), aff'd mem., 957 F.2d 911 (D.C. Cir. 1992), cert. denied, 493 U.S. 974 (1992)). The Board views an organization's decision to merge into another organization as an internal union matter and the Board will grant requests for transfers of certification based on union mergers unless there is evidence of fraud or gross abuse in the merger or election. Northwest Airlines, Inc., 18 NMB 446 (1991).

The Board generally grants a transfer request based upon assertions contained in the request letters. Big Sky Trans. Co., 25 NMB 376 (1998); Desert Sun Airlines, 24 NMB 137 (1997); Northwest Airlines, above at 448; Transtar Airlines, 14 NMB 377 (1987); Brotherhood of Ry., Airline & S.S. Clerks, 13 NMB 408 (1986); Railroad Yardmasters of Am., 13 NMB 6 (1985).

Based on the investigation, the Board finds that the organization name "Fraternal Order of Police" in NMB Case No. R-5892 certification was used inadvertently and the correct name of the certified organization is the FOP, NLC. The investigation also establishes, since the certification, the FOP, NLC has represented Police Officers below the Rank of Captain at Conrail as the FOP, NLC-Conrail 1.

Created in 1989 by the FOP, the FOP, NLC was to be an independent, umbrella council of local labor organizations representing police officers with multi-jurisdiction and national police powers using the FOP trademark. Also in 1989, the FOP, NLC became a not-for-profit DC corporation. The first local labor organization created under the FOP, NLC was Conrail 1, under a Board certification. Later, the local USPS 2 was added to the FOP, NLC under an NLRB certification. In 1996, the local BEP 3 was added to the FOP, NLC under an FLRA certification.

By the mid-90's, the FOP, NLC was nothing more than a shell. As a corporation, the FOP, NLC, Inc. was revoked by the DC Government in 1998. The FOP dissolved the FOP, NLC in August 2001. The three locals formed under the FOP, NLC became independent labor organizations which merely use the FOP trademark. As independent labor organizations, USPS 2 affiliated with FOP, DC Lodge 1; BEP 3 affiliated with FOP, Texas Lodge 50; and Conrail 1 has voted to merge with the UTU.

VII.

CONCLUSION

The submissions of UTU and the FOP, NLC-Conrail 1 establish that the two organizations have merged. There is no evidence of fraud or gross abuse in the merger or election. Since the FOP, NLC-Conrail 1 has merged into UTU, the request for transfer of certification is granted. The Board's records are revised to reflect the transfer of the certification issued to FOP, NLC-Conrail 1 in NMB Case No. R-5862 to UTU.

By direction of the NATIONAL MEDIATION BOARD.

Benetta Mansfield

Chief of Staff