OPENING SUBMISSION OF THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS

INTRODUCTION AND BACKGROUND

The dispute before this Board arose on September 26, 2001, when six carriers (Burlington

Northern and Santa Fe Railway Co., Consolidated Rail Corp., CSX Transportation, Inc., Kansas City

Southern Railway Co., Norfolk Southern Railway Co., and Union Pacific Railroad Co.) signed a letter of intent with the United Transportation Union (“UTU”) to assign to UTU-represented ground employees the responsibilities associated with the operation of locomotives via remote control to move cars, trains and/or engines in their switching and terminal operations. BLE objected to these proposed assignments and threatened to strike over the issue if the carriers proceeded to implement their intended changes. The carriers filed suit against BLE in the United States District Court for the Northern District of Illinois, claiming that the matter was not a major dispute over which the

BLE could strike but instead raised a minor dispute that had to be resolved by Section 3 arbitration under the Railway Labor Act.

The suit was held in abeyance pending the outcome of voting by the members of BLE on a proposed merger between BLE and UTU. The merger proposal was defeated and the carriers and

BLE presented their respective positions on the legal character of the dispute to United States

District Judge Joan B. Gottschall. On January 15, 2002, Judge Gottschall ruled that the carriers had satisfied their “relatively light burden” to establish that the dispute was a minor dispute and referred the parties to arbitration. BLE EXHIBIT 1, p. 5. She did not hold that the carriers possessed the right to assign the work in dispute to non-engineers. Rather, Judge Gottschall stressed that

“It is important to emphasize what [the court] is not deciding.” [citation omitted] The court is not deciding whether the Railroads’ plan to implement the new technology is justified by its agreements with the BLE. The court is merely deciding

-1- whether the Railroads’ argument that the parties’ agreement justifies its plan is “not frivolous or obviously insubstantial.” Id....

This court stresses that it is in no way agreeing with the Railroads’ interpretation of the collective bargaining agreements; in fact, it is arguable that locomotive engineers should have exclusive control over operation of the remote control transmitters. However, the court need not make this determination. “The resolution of the case depends upon the interpretation of the agreement, and while we realize that the [Railroads’] actions might be in violation of that agreement, it is for the appropriate adjustment board, and not this court, to draw the boundaries of the practices allowed by the agreement.” [citation omitted].

BLE EXHIBIT 1 at 5-6, 12-13.1

UTU was not a party to the carriers’ lawsuit. Following Judge Gottschall’s decision, BLE

initiated negotiations with the carriers for an arbitration agreement to establish a board to resolve

the dispute. Shortly after those negotiations began, UTU wrote to the carriers that it held an interest

in the outcome of the arbitration and demanded to participate as a full party in the proceeding. BLE did not oppose UTU’s involvement in the arbitration. The Arbitration Agreement that created this

1 The Court’s decision to grant the railroads’ motion for a preliminary injunction was premised on a finding that the “remote control technology” would enable the railroads to operate locomotives from the ground without an engineer in the locomotive cab:

Under the remote control system, an on-board computer is operated with a remote control device by an employee on the ground. The system makes it unnecessary to have an employee inside the locomotive.

January 14, 2002 Order (BLE EXHIBIT 1) at 2. Recently, BLE learned that RCOs were controlling locomotive movements from inside the cabs of locomotives, often from the seat formerly occupied by the locomotive engineer. BLE filed a motion asking the Judge to clarify that the injunction she issued against BLE did not cover such situations. Following a hearing in which counsel presented argument on the motion (see BLE EXHIBIT 2), the Judge scheduled an evidentiary hearing on the issue. Prior to the evidentiary hearing, the parties agreed, without prejudice to any party’s position on BLE’s motion or in this arbitration, that pending a final decision by this Board, RCOs would be instructed that they “shall not use the remote control operating units to effectuate locomotive movements from inside the locomotive cab, except in an emergency.” BLE EXHIBIT 3.

-2- Board (BLE EXHIBIT 4) was concluded on June 25, 2002.2

On August 20, 2002, the carriers concluded a final Remote Control Agreement with UTU that is now in effect. BLE EXHIBIT 5. The basic terms of that agreement are: (1) monetary protection for every UTU employee adversely affected for up to six years from the date remote control technology is implemented at the location where he/she works on a one-for-one basis, (2) the payment of a special allowance equivalent to forty-six minutes pay per tour of duty for every employee filling a remote control operator position, (3) all ground service employees will be trained so they qualify for these positions, and (4) the positions will be filled by bid or force assignments of UTU-represented workers.

The issues presented in this dispute have been characterized by the parties as follows:

BLE:

The assignment of other than locomotive engineers to operate locomotives via remote control in connection with the movement of cars, trains and/or engines in terminal operations is a violation of the exclusive rights of locomotive engineers to perform such service pursuant to existing BLE Agreements and established practice.

UTU:

Were the involved carriers proper in their assignment of trainmen (yard conductors and yard helpers) to perform remote control operations in their terminals?

2 In their negotiations, the parties recognized that a Board comprised of four members - 3 partisan members and one Chairman - could deadlock. They were not able however to agree on a procedure for breaking potential deadlocks. Unable to resolve this procedural obstacle themselves, the parties requested the appointment of a Procedural Neutral by the National Mediation Board. On August 16, 2002, Procedural Neutral Francis Quinn chose the carriers’ proposed tie-breaking scheme, which called for the appointment of a Deadlock Neutral who would cast a sealed vote on the merits. In the event the Chairman sustains BLE’s position, resulting in a 2-2 tie, the Deadlock Neutral’s sealed vote will be opened and will decide the outcome.

-3- CARRIERS:

The Carriers have implemented remote control locomotive technology, which eliminates any need for an on-board locomotive engineer, in connection with work assignments that involve the gathering and distribution of freight and/or equipment in and around terminals.

Under the Carriers’ collective bargaining agreements with the Brotherhood of Locomotive Engineers and the United Transportation Union at issue in this case, may the Carriers assign use of remote control technology to ground service employees represented by the UTU, thereby eliminating the locomotive engineer position?

SUMMARY OF BLE’S SUBMISSION

In this Submission, BLE will explain how a modern freight locomotive operates to move cars and freight in and around railroad terminals, and what are the responsibilities of an FRA-certified locomotive engineer and the responsibilities of ground personnel in connection with that operation.

BLE will then show that the rules in the collective bargaining agreements and past practice between BLE and the carriers (both nationally and locally) require that (1) a locomotive engineer be part of the crew, (2) the duties and responsibilities of an engineer may not be assigned to other employees, and (3) no exceptions to these rules apply in this dispute.

We will show how, contrary to the agreements and historical practice, under the guise of technology, the carriers have reassigned the duties and responsibilities of the engineer to UTU- represented personnel using a portable operating control unit known as a belt pack. BLE will demonstrate the fallacy in the carriers’ argument that the belt pack is a “communication device” such that management can assign its operation to a ground service employee pursuant to Article VIII,

Section 3(a)(9) of the 1985 UTU National Agreement (Incidental Work)(BLE EXHIBIT 6) and/or

-4- Article VIII, Section 3(h)3 of the Award of Arbitration Board No. 458 (Incidental Work)(BLE

EXHIBIT 7).

BLE will establish that its position in this dispute should be sustained both nationally and on a property-by-property basis. In that regard, this Submission is divided into two parts. Because

all of the carriers involved in the dispute are bound by some agreements and rules that are common, and their arguments based on technology and the Incidental Work Rules to support what they have

done are common, the first part of BLE’s Submission addresses the dispute as it affects all

properties. The second part of BLE’s Submission provides the Board with an analysis of rules that

are particular to certain carrier systems, or parts of systems. That part of the Submission supports

the proposition that should the Board find that the common facts do not lead to a uniform finding

in favor of BLE, then the Board must look at the rules and practices on the properties one-by-one

to determine whether BLE’s position should be sustained locally.

We submit that because the existing agreements and established practice create an exclusive

right in locomotive engineers to operate locomotives in connection with the movement of cars or

trains in terminal operations, the carriers’ assignment of other operating craft personnel to do that

work via remote control is improper. This Board should so find.

3 “Road and yard employees in ground service and qualified engine service employees may perform the following items of work in connection with their own assignments without additional compensation: ... (h) Use communication devices; copy and handle train orders, clearance and/or other messages.”

-5- I. THE EXCLUSIVE JURISDICTION OF ENGINEERS’ WORK

A. General Order No. 27

Since 1919, existing agreements and historical practices between the Carriers and the BLE specifically have exclusively reserved to BLE-represented locomotive engineers the operation of the Carriers’ locomotives in connection with the movement of cars in freight yards, terminals and on main line tracks. During World War I, the nation’s railroads were placed under the control of the Director General of Railroads of the United States Railroad Administration. The Director

General issued various General Orders regulating the industry, most of which were later memorialized in agreements between BLE and the Carriers after the railroads returned to private hands. The General Orders provided much of the foundation for the craft and class system that still exists in the industry today. General Order No. 27, Article VI, addressed the assignment of employees to the operation of locomotive power:

Wherever electric power or other power is installed as a substitute for steam, or is now operated as a part of their system on any of the tracks operated or controlled by any of the railroads, the locomotive engineers shall have preference for positions as engineers or motormen, and locomotive firemen for the positions as firemen or helpers on electric locomotives, but these rights shall not operate to displace any men holding such positions on the date of issuance of this order.

BLE EXHIBIT 8. This provision is generally recognized as the original formal basis for the locomotive engineers’ exclusive jurisdiction over the operation of any form of power (such as locomotives) used in road and yard service to move freight on the tracks of all railroads. Following

World War I the above-cited language of Article VI of General Order No. 27 was imported verbatim or near-verbatim into the agreements between the various Carriers and the BLE. These agreement provisions are set forth in the Separate Property Presentation volumes of BLE’s Submission.

B. The 1944 and 1945 Diesel Agreements

-6- The next significant step in the evolution of the collective bargaining agreements bearing on the instant dispute came about with the 1944 and 1945 Diesel Agreements. Prior to the development and proliferation of the diesel electric locomotive (hereinafter referred to as “diesel” or “diesel locomotive”), steam engines were primarily used to move freight and passenger traffic on the nation’s railroads. The controls of steam engines were mainly mechanical and had to be physically manipulated by the engineer in the cab of the locomotive. This meant that each locomotive operated had to have an engineer on board. Where operating exigencies dictated that a second or third locomotive be added to a train (“double” or “triple heading”), each additional locomotive was manned by its own respective engineer (and, of course, fireman).

In the late 1930s and early 1940s, the development of diesel locomotives that could be coupled into multiple-unit consists and remotely controlled from a single control stand led to a series of disputes with respect to the manning of those multiple-unit consists. The railroads wanted a single engineer to operate each multiple-unit consist, while the BLE believed a second engineer, designated as an assistant engineer, be added to the crew on each diesel locomotive unit. At the same time, other manning issues persisted, especially in connection with the duties of locomotive firemen on multiple-unit diesel consists, as well as with rates of pay when operating diesels.

Each side served notice on the other pursuant to Section 6 of the Railway Labor Act asserting their respective positions relating to manning issues in bargaining. Direct negotiations produced no resolution of the manning issue, nor was the National Mediation Board successful in mediating a resolution the issues. Ultimately a Presidential Emergency Board (later known as “the Diesel

Board”) was appointed and issued a Report and Recommendations (BLE EXHIBIT 9).

That PEB’s Report provided the basis for three essentially identical Agreements: the January

-7- 25, 1944 Memorandum of Agreement between BLE and the Western Carriers Conference

Committee, the December 20, 1944 Memorandum of Agreement between BLE and the Southeastern

Carriers’ Conference Committee, and the April 3, 1945 Memorandum of Agreement between BLE and the Eastern Carriers’ Conference Committee (BLE EXHIBITS 10, 11, 12 ). These Agreements, which have come to be known as the “BLE Diesel Agreements” all contain this identical provision:

3. In the application of this agreement, it is understood that the existing duties and responsibilities of engineers will not be assigned to others. It is further understood that a second engineer is not required in multiple-unit service where the engineer operates the locomotive with one set of controls.

This provision must be viewed in the context in which it was negotiated. The Diesel Board was faced with a manning dispute. Both BLE and BLF&E maintained that the Board should recommend minimum manning requirements for diesel locomotives. Where the two unions differed was over the craft from which the additional man would come. The carriers maintained that the size of the crew on the locomotive should not be increased. The Board agreed with the unions that an additional man should be added to the crew but only in certain circumstances, and it held that in those circumstances the additional man should be a fireman rather than an engineer. Its recommendation, which became implemented in the Diesel Agreements entered into by both unions, was that the crew should be comprised of one engineer and one firemen except in certain circumstances where an additional fireman could be assigned. What is most important to the resolution of the instant dispute is that the Diesel Agreements secured one engineer’s position in every locomotive and reserved existing engineers’ duties exclusively for engineers.

Over the years, the carriers maintained that the need for the fireman was eliminated by changes in locomotive technology. They succeeded in eliminating the fireman positions not by unilateral action but by bargaining changes in the agreements that had their genesis decades earlier.

-8- Here, the carriers say they no longer have a need for the engineer because of a different advance in technology. While we don’t agree with that, even assuming for purposes of argument that they are correct, they must accomplish their goals at the bargaining table, not unilaterally. The Diesel

Agreements require the maintenance of an engineer’s position for every one of the locomotives they are converting to be operated by remote control and prohibit the assignment of engineer’s duties and responsibilities to non-engineers.

C. The Nature and Scope of Engineers’ Duties

The agreements in effect between the various Carriers and the BLE at the time of the issuance of the Diesel Agreements did not stipulate the many particular duties and responsibilities of locomotive engineers. This is so because the duties and responsibilities of locomotive engineers

(like those of the then other operating crafts -- firemen, hostlers, conductors, brakemen, switchtenders and yardmen) had been well understood by labor and management alike from virtually the day the railroads came into existence. The parties have never had a need to articulate them.

The First Division of the National Railroad Adjustment Board (NRAB or “Board”), has explained:

Railroad work in these United States is classified upon a craft basis and each craft generally has a separate agreement with the Carriers governing its own working conditions. It is inherent in such a plan that each craft is entitled to perform all of the work within its jurisdiction except as craft lines may overlap or in case of emergency. Likewise, it is inherent therein that an employe may not be used to perform the services of two crafts without liability for the daily guarantee provided by the agreement of each craft, except there be an agreement permitting the same or in case of emergency.

Much difficulty arises from the fact that the craft agreements do not specify the work belonging exclusively to the craft and such has been inferred from the name of the craft group or has been established by actual practice. Practice consists of a

-9- consistent way of doing things on a national basis, a carrier basis or a local basis...

First Division Award No. 13412 (BLF&E and Atlantic Coast Line Railroad Company)(Swacker)

(BLE EXHIBIT 13, at 479-480.).4

The core of the work of locomotive engineers is, of course, to operate locomotives to move

freight in every type of train service on each of the carriers party to this dispute. As the Diesel

Board noted in 1943, “Since the early days of railroading the engine crew has consisted of an

engineer, responsible for the operation of the locomotive,” (BLE EXHIBIT 9, p. 54). That the

exclusivity of the scope of engineers’ work is so well understood is shown by the fact that there are

very few instances, until now, when a carrier has attempted to justify using anyone other than a locomotive engineer to operate a locomotive to move cars. On those rare occasions it did occur, the resulting unresolved claims and grievances disputes were taken to the NRAB for resolution. The

First Division Awards that resulted establish a long line of clear precedent holding that the well- known and accepted engineers' duties and responsibilities are exclusively reserved to engineers:

For example, in Award No. 351 (BLE and Louisiana & Arkansas Railway

Company)(Swacker)(BLE EXHIBIT 14), the Board issued one of its first decisions describing the scope of the general rules in agreements addressing the coverage of engineers’ work. The agreement in that dispute only stated that it contained “the following rules and regulations pertaining to the pay and government of all Engineers of [the] Seniority District” and set out “freight service” rates of pay and a seniority based assignment procedure. It did not contain a description of the particular work

4 The dispute in that case involved the lining of switches. The Board found (p. 480) that because prior to the dispute, “all switch lining on movements...in and at the point involved in this claim was performed by the road trainmen or by a member of the yard crew[, s]uch prior practice establishes the craft jurisdiction of the work involved” absent an agreement otherwise or an emergency.

-10- within freight service to be assigned the engineers, though the schedule of pay rates did cover work trains. When the carrier failed to assign carrier engineers to operate a contractor’s locomotives that were engaged in construction-related work for the carrier, BLE claimed that the agreement was violated. The Board agreed, finding that the agreement embraced all work operating engines for the carrier, even though the agreement contained no provision expressly stating that. The Board explained that the Carrier could not have this work performed by others, including employees of a subcontractor.

There is no limitation in the contract to a portion of that service [work trains]. To hold that the contract contemplated less than all of such services would leave it quite indefinite as to what, if any, portion of the service of the kind involved was subject to it. It could not reasonably be contended that the carrier would have a right under this contract simply to declare that certain of its trains would not in the future be subject to the terms of the contract and thus withdraw from the operation of the contract. Such a construction of the contract would make it a mere ‘will, wish, or want’ contract or, that is, no contract at all. .... The fact that the [agreement] does not say in express words that it binds the carrier to employ the engineers represented by the organization to man all engines engaged in any work, operation, maintenance, or construction on the carrier’s railway is not of much significance. These contracts are of a type peculiar to the business involved. They are not in form at all similar to the ordinary contract of employment. They are particularly distinctive, in that they leave largely to implication the fact that they are contracts of employment. They leave more unsaid than said. They really are more in the nature of a schedule (which is what they generally are called), or specifications, commonly made an[] appendix of any ordinary contract, than the contract itself; they consist primarily of tables setting forth the rates of any applicable to specified services, a very meager specification (if any) of what the services shall consist of, rules governing pay of incidental services, rules governing seniority, and rules governing the assignment of runs and such matters.

The circumstances that the [agreement] does not expressly say in so many words that it is applicable to all locomotive engineering to be performed for the carrier, and likewise is silent as to specifying any definite portion thereof less than all, are not of equal weight so as to counterbalance. On the contrary, it is quite simple to draw the inference that it applies to all, but impossible to infer some definite portion as there is nothing upon which such an inference could rest. The obvious place any limitation of the contract to less than all, and the extent of such limitation, should be expressed

-11- is in the written agreement of November 1, 1931. Consequently, its absence there creates an irresistible inference of its nonexistence and a corresponding inference that the contract embraces all. .... The only reasonable interpretation and manifest intention of the contract was to embrace all locomotive engineering service to be performed on the railway of the carrier for its benefit. Consequently, the making of the contract with the contractor, according him the privilege of manning the engines operated by him, on and in the work of the carrier, was a breach of the organization contract and deprived engineers represented by the organization of work to which they were justly entitled and for which they should be compensated according to the schedule.

Id. at 447-448.

This holding has consistently been applied by the NRAB in subsequent disputes involving

the performance of engineer’s duties by other than engineers. Examples follow.

• First Division Award No. 2174 (BLE, BLF&E, and Atchison, Topeka and Santa Fe

Railway Co.)(Swacker)(BLE EXHIBIT 15) sustained claims where the carrier had used non-

engineers to operate Budd Type-12 inspection motor cars to non-engineers. The carrier argued that

because “no rule can be found in the schedules involved specifically granting the employees the

right to perform all the service of the type involved the claims cannot be sustained.” The Board disagreed and sustained the employees’ claims (p. 796):

What are now called schedules were long merely rules which the carrier granted or withheld within its power but, as is pointed out in Award 351 of this Division of the Board, these schedules are not a contract of employment but merely specifications attendant on that contract, which is very largely an implied contract. It must be taken that so long as employees of the type involved held themselves available to perform work of that type that there is an implied obligation on the part of the carrier to accord such employment to those employees on the terms and conditions specified in the schedules in the absence of any specific reservation of any portion of such work from the operation of the contract. Such reservation must be definitely shown by something more than mere practice.

• First Division Award No. 17483 (BLE and Central of Georgia Railway Company)(Carey)

(BLE EXHIBIT 16) involved the movement of a locomotive by an electrician only 50 feet or so

-12- while derailment repairs to track were being effected. The Board, in sustaining an engineer’s claim for a basic day, held (p. 718):

It is admitted that the movement of the Diesel unit was made by a foreign line electrician and the record shows that claimant stood first out and available for duty at Columbus, Georgia which was the only source of supply for extra men. We are unable to agree with carrier’s contention that the movement was too trivial to require the services of an engineer.

• A trainmaster operated an engine a short distance in re-railing a freight car which produced the claim leading to First Division Award No. 19368 (BLE and Louisiana and Arkansas Railway

Company)(Coburn)(BLE EXHIBIT 17). Again sustaining an engineer’s basic day claim, the Board held (p. 620):

The primary issue presented is whether, under the effective agreement, claimant had an exclusive right to perform the engine-handling service.

That issue is certainly not one of first impression, This Division’s Award 351, handed down in 1935, with Referee Swacker participating, gave the subject exhaustive and thorough consideration in arriving at the conclusion that a collectively-bargained agreement such as the one in evidence here grants to the employes covered thereby an exclusive right to perform all of the work which is the subject matter of the contract, whether or not there is a scope rule or other express definition of the work to be performed, except there be an agreement otherwise or in cases of emergency. That principle of contract construction has been adhered to by this Division, acting with and without Referees, over the ensuing years. (See Awards 1782, 1842, 8942, 8919, 13412, 17483.)

In the instant case the facts show there was no agreement to use the trainmaster nor was there an emergency at the time the service was performed. Therefore, following the established principles set forth in the foregoing awards, the Division finds that claimant was entitled to perform the service in question and that he should, therefore, be compensated for 100 miles under the Basic Day Rule.

(Emphasis added.).

• First Division Award No. 22215 (BLE and Seaboard Air Line Railroad Company)

(Moore)(BLE EXHIBIT 18) sustained an engineer’s basic day claim when an assistant master

-13- mechanic moved a locomotive 200 yards. The Board upheld the claim because “[i]n 1945 the parties agreed that the existing duties and responsibilities of engineers would not be assigned to others” and “it is evident that an employee outside the Agreement performed service contractually and exclusively reserved to engineers under these circumstances.”

• Another case brought before the First Division involved a claim in favor of an engineer when a road foreman operated an engine after the assigned engineer was taken to a hospital to have a foreign body removed from his eye. The Board, with Referee Robert M. O’Brien, in First Division

Award No. 23248 (BLE and Seaboard Coast Line Railroad Company)(BLE EXHIBIT 19), sustained the claim, holding that “[u]nder the Engineer’s Southeastern Diesel Agreement, dated April 3, 1945, it is impermissible for Carrier to assign other than engineers to perform the duties of engineers” and that what the carrier had done was “precisely the type of conduct prescribed by the controlling agreement.”

• See also First Division Award No. 1375 (BLF&E and Wabash Railway Company)(BLE

EXHIBIT 20) sustained an engineer’s basic day claim when a yardmaster operated a locomotive from one track to another rather than have a yard engineer handle the engine.

The exclusive right of locomotive engineers to operate locomotives has been further underscored in situations where the motive power utilized was not a conventional diesel locomotive.

The dispute underlying First Division Award No. 23969 (BLE and CSX Transportation)

(Twomey)(BLE EXHIBIT 21) was whether BLE- or BMWE-represented workers held the right to be assigned to operate a Switchmaster Trackmobile5 to propel railcars in work train service. The carrier, which had previously had the work train service done by a locomotive operated by a

5 The Switchmaster Trackmobile is a miniature locomotive capable of moving on and off rails and between railroad cites on rubber tires.

-14- locomotive engineer, substituted the Trackmobile for the locomotive to do the same service, abolished the engineer’s assignment and awarded the operating work to a track employee. When

BLE protested, the carrier agreed to discontinue the use of the Trackmobile and submitted the dispute to the Board. Relying on the L&N agreement equivalents of Article VI of General Order

No. 27 and the Southeastern Diesel Agreement, the Board upheld BLE’s exclusive right to operate the equipment:

The BLE Organization has sustained its burden of proof in this case to the extent that it has exclusive right to continue to operate the motive power – including Switchmaster Trackmobiles – used to propel rail cars in work train service on the former L&N. .... We find that the purpose of the Trackmobile is to move rail cars upon railroad tracks. It is equipped with headlights, marker lights, drawbars, air hoses and sanders. Its design contained no mechanical on-track function except to provide tractive power for movement of rail cars. Photographs taken on the property show the utilization of the Trackmobile, providing motive power for maintenance of way machinery located on rail cars, coupled to other rail cars forming a train.

The carrier argued that the equipment fell outside BLE’s jurisdiction because a power winch had been added to the Trackmobile to enable it to be used for off track operations. The Board disagreed:

The fact that a power winch has been added to the Trackmobile after the handling of this dispute on the property does not change the basic character of the Trackmobile or convert the Trackmobile to work equipment covered by the BMWE Agreement, just as the addition of a power winch to a locomotive would not convert the locomotive to equipment to be operated by the BMWE. The power winches added to the Trackmobile are to be operated by the craft holding contractual rights to that work. The BLE does not claim that it has the exclusive right to operate such winches.

Article 26, Section 13 and Article 4, Section C provide Agreement support that the operation of the Trackmobile in work train service is exclusively reserved to the BLE on the former L&N.

A similar situation led to First Division Award No. 24043 (BLE and Illinois Central

Railroad) (LaRocco)(BLE EXHIBIT 22). In that case, the carrier utilized a Pandrol Jackson rail

-15- grinding unit consisting of ten cars behind a modified GP-40 diesel locomotive operated by

employees of an outside contractor. BLE maintained that the carrier was required to assign an

engineer either to operate or pilot the unit. The case turned on whether the unit was a locomotive

or a self-propelled machine within the meaning of Article III of the 1964 BLE National Agreement.

The Board, with Referee John B. LaRocco, held that the BLE could not properly claim the work of

operating the unit because “the diesel engine at the front end of the Pandrol Jackson rail grinding

unit has been functionally and technically transformed into an integral part of the rail grinding

equipment [and] is more multifarious than simply an ordinary GP-40 with the addition of throttle

for creeping.” However, the Board stressed that its conclusion was limited to the specific use of the

unit for rail grinding. Recognizing the locomotive engineers’ exclusivity when it comes to operating

locomotives for the purpose of moving cars, the Board explained the narrow exception it was

allowing the carrier:

This Board emphasizes that its decision is restricted to movement and operation of the Pandrol Jackson rail grinding unit when it is actually engaged in rail grinding work. If the equipment is run on the Carrier’s property for purposes of transit, unrelated to the actual performance of rail grinding work, the Carrier is obligated to assign an engineer pilot to the rail grinding unit.

The foregoing Agreement provisions and arbitration awards demonstrate that locomotive

engineers have the exclusive right to operate motive power, whatever its form, in the performance

of all types of train service. Additional evidence that the method of remote control at issue in this case is work within the exclusive work jurisdiction of BLE represented engineers is evident from the character and purpose of the work for which the belt pack is used. As Arbitrator Robert Peterson explained in Award No. 4 of Public Law Board No. 3622 (BLE and Southern Railway)(BLE

EXHIBIT 23),

-16- It has been held many times in the past that the general class, character and purpose of the work as a whole and the reasons for doing it, rather than the manner, method or detail of the performance or the nature of its component parts, are persuasive in determining whether work is embraced in the scope rule of an agreement.

In the instant dispute the work in question is the general, over-all operation of a diesel

locomotive engaged in the performance of yard (switching) service.6 While subsequent agreements

have somewhat expanded engineers’ duties to encompass a few items of “incidental” work

previously reserved to other crafts or classes of employees, such as supplying or fueling a

locomotive or handling a track switch in the absence of the employee who would ordinarily perform

such work7, there has never been any modification or change to Item 3 of the Diesel Agreements that would permit the Carriers party to this dispute to assign engineers’ duties to an employee of a

different craft or class in the manner which has given rise to the instant dispute.8 To assign the very

core of the engineers’ duties and responsibilities to others as the carriers are now doing with the belt

pack flies in the face of the patently clear language of Article VI of General Order No. 27, Item No.

3 of the 1944 and 1945 Diesel Agreements, approximately a century of past practice of exclusively

6 The parameters of this dispute were defined by the ruling of the United States District Court for the Northern District of Illinois that sent the parties to arbitration. The Court held that BLE must arbitrate the propriety of the carriers' work assignments in connection with the use of "remote control technology in the operation of locomotives in their terminal operations in or around terminals." At least one carrier, Union Pacific, has expanded the use of remote control to relieve outlawed (Hours of Service) trains ten or more miles outside terminal limits. See BLE EXHIBIT 24. We submit that using non-engineers to operate trains beyond terminal limits is even more abusive of BLE agreements and this Board should so find.

7 See Article VIII Section 3 (a)-(h) of the 1986 Award of Arbitration Board No. 458 (BLE EXHIBIT 7).

8 Engineers have exclusive rights to perform all the work of the craft unless there is a specific agreement providing otherwise. Certain exceptions have been recognized by custom and practice which are not relevant to this proceeding, such as when a locomotive is operated in a locomotive repair or car shop facility which is not connected to the general system of railroad.

-17- assigning the operation of locomotive power to move cars to engineers, and the past practice of

assigning the remote control of locomotives in train service exclusively to engineers from the very

inception of the earliest remote control technology.

II. THE OPERATION OF LOCOMOTIVES BY REMOTE CONTROL HAS HISTORICALLY BEEN WITHIN THE SCOPE OF ENGINEERS’ DUTIES

Remote control of locomotives is by no means a recent development. Indeed, the concept

of remote control operation was introduced into the rubric of the locomotive engineers’ work

jurisdiction as early as the 1940's, when railroads began the wholesale replacing of steam engines

with diesel-electric locomotives9. To foster an understanding of the historical ownership of remote

control operation of locomotives in train service, it is instructive to examine the evolution of remote

control technology as it was integrated into railroad operations.

The operation of steam engines was accomplished by a locomotive engineer who

manipulated controls located in the locomotive cab. Nearly all of these controls consisted of direct,

mechanical connections between the control operating appurtenance and the engine, or the particular

portion of the engine over which the control governed a function. The throttle is a good general example.

After the engineer had determined direction (forward or reverse) by moving a reversing lever mechanically connected to the engine’s valve gear, the engine would move by the forcing of steam, under significant pressure, into cylinders which pushed a rod that was connected to the driver wheels. The throttle was a type of valve that was actuated by a lever mechanism located in the cab.

9 Diesel-electric locomotives are commonly called “diesels” or “diesel locomotives” and will be referred to as such within this writing. Whenever those terms are used they imply the full name.

-18- This lever was mechanically connected through a series of additional levers, pipes and/or rods to the throttle, which was located near the front portion of the engine. Moving the throttle lever to a particular position governed the volume of steam allowed into the cylinders, and, thus, the amount of power the engine would develop for tractive effort.

Because the controls of steam engines were mechanical, each locomotive had to be operated manually and individually from its own set of controls. If two engines were needed for a work assignment, two engineers were required, one for each engine. The introduction of diesel locomotives profoundly changed this. The main factor behind this change was due to the fact that diesel locomotives were controlled not by mechanically-connected controls, but principally by electrical connections. This made it possible, by moving the switches, levers and handles at one locomotive’s control station, to remotely control the functioning of additional diesel locomotives through the use of a connecting electrical control cable (jumper cable). The disputes which this new technology spawned, and the Diesel Agreements which resolved them, have already been described.

It suffices to say here that labor and management ultimately agreed that an engineer could operate more than one diesel in a multi-diesel unit locomotive consist via remote control from a single control stand.

Other forms of remote control operation of diesel locomotives ensued. One was the introduction of radio-controlled locomotives in the later 1950's and early 1960's. For many years it had been the practice to add power to trains to enable them to better traverse steep grade territories, to overcome the inertia of an initial start, or to maintain higher operational speeds, among other things. To do this, a locomotive or locomotives would couple onto and push from the rear of a train (or sometimes pull from the front). This was known as “helper” or “pusher” service. These

-19- helper engines, of course, required a crew. But with radio remote control, helper engines could already be placed in a train, and when needed, all the engineer at the head end of the train had to do was turn on a switch and activate the additional engines. These engines were then controlled by radio signals sent from the lead locomotive, and would duplicate the commands the engineer sent via the controls in the head end consist. Moreover, the helper engines, sometimes called “slaves” when used in this application, could be placed anywhere in the train and did not need to be at the very rear, producing additional operating benefits.

Because the use of remote controlled slaves would eliminate the need for some helper crews, disputes arose that were resolved in a series of arbitrations. The arbitrations culminated in holdings that the control of slave units via radio remote control by the single (head end) engineer was permissible. See, e.g., BLE EXHIBITS 25 and 26. The various boards found that a radio control connection to the additional locomotives was no different than the electrical connections already in use for many years.

The early radio remote-controlled slave units were replaced in the late 1960's and 1970's with an improved version of radio remote controlled helpers. The new system, known as “distributive power,” developed in main part by the Vapor Corporation, General Electric Corporation and others, enabled an engineer to operate helper engines completely independent of his operation of the head end locomotive consist. The system consists of a radio transmitter placed on the engine’s control stand from which the engineer sends commands via radio signals to a receiver in the remote unit(s).

An engineer can command a varying amount of power from one or the other of the locomotive consists as appropriate for particular operating exigencies. This system is in use today. As defined on Union pacific’s website (http://www.uprr.com/aboutup/rrtalk/typesot.shtml), a “distributed power

-20- unit” is “a locomotive set capable of remote-control operation in conjunction with locomotive units at the train’s head end. DPUs are placed in the middle or at the rear of heavy trains...to help climb steep grades....” (Emphasis added). BLE EXHIBIT 27.

Additional forms of automated locomotive controls have, from time to time, been introduced by the railroads. There is a commonly-used device called “Pacesetter” that allows the engineer to fix a constant speed for a movement. It works like this: the engineer turns on the device, which is attached to the control stand, and sets the desired speed of the locomotive consist. The Pacesetter system then automatically maintains that speed until the engineer intervenes to change it. This system is used most often when very slow and regular speeds are desired, such as in loading unit coal trains and in humping operations. See BLE EXHIBIT 28.

There has never before been an instance on these carriers, when any form of remote controlled operation of locomotives has been introduced that locomotive engineers were not assigned the duties associated with their operation, regardless of the technological control platform utilized, absent an agreement with the BLE providing otherwise. Until now, the Carriers had always abided by the language of the 1944 and 1945 Diesel Agreements prohibiting the assignment of the existing duties and responsibilities of engineers to others.

The introduction of the belt pack is only the most recent application of remote locomotive control. The work associated with operating locomotives, whether controlled locally or remotely, should have been assigned to locomotive engineers consistent with the past practice of assigning remote control of locomotives exclusively to engineers since the invention of remote control.

III. THE DUTIES AND RESPONSIBILITIES OF OPERATING A LOCOMOTIVE IN YARD SERVICE

-21- As stated in the general description of the duties and responsibilities of locomotive engineers

above, the main function of the engineer is the operation of locomotives in connection with all types

of train service on the trackage of the carriers party to this dispute. There are many specific tasks

that engineers perform to accomplish their duties and responsibilities. These tasks vary depending

on the particular class of service the engineer is engaged in handling, e.g., yard service, transfer

service, road service, passenger, etc., the physical characteristics of the railroad at the location of

the service, the weather, and so on. As this dispute is limited to yard (switching) service and the

assignment of engine operation in that class of service to a ground service employees “in and around terminals,” we will narrow our discussion of the duties and responsibilities of the engineer to those that are relevant to yard service.

When a yard service engineer reports for work, he10 goes to a specified on-duty point. Once

at that point, he is informed where in the yard the locomotive he is to take charge of is located. This

may be at an engine servicing area, a “ready track,” or simply a near-by track in the yard or terminal.

Once the engineer locates his locomotive, he performs a visual “walk-around” inspection.11 He will

note the condition of the brake rigging including cylinders, pistons, brake shoes, etc. He will inspect

wheels and flanges for cracks or other visually detectable defects. He will check the integrity of railing stanchions, steps, grab irons, hand brake chain, couplers, pin lifter, fuel tank, etc. He will

13. BLE represents both men and women working as locomotive engineers. For the purposes of convenience only, we will use the masculine gender to refer to them both in this submission.

14. If necessary for compliance with FRA regulations, the engineer may need to conduct a “daily inspection” which involves a somewhat more involved inspection than the walk-around described here. The daily inspection also requires a signature on a card displayed in the locomotive cab attesting to the completion of the inspection. See BLE EXHIBIT 29, p.55-59, for a description of the daily inspection responsibilities that KCS requires of its engineers. The locomotive inspections required by KCS are typical of what is required by all the carriers party to this proceeding.

-22- inspect the ground around and under the locomotive for signs of fuel, oil or traction motor lubricant

(crater) leaks. He will open air reservoir tanks to drain moisture. He will check the locomotive sand pipes and/or hoses for leaks. He will check the locomotive’s trainline air hoses for defects. He will open the engine air hose angle cocks to ascertain that air is flowing properly. If the locomotive is a multiple unit consist, he will check the air hose and jumper cable connections between diesel units.

Only after he is assured that all seems well at the ground level will the engineer ascend the steps of the locomotive. He then will check the operation of the handbrake as he passes it, and then enter the cab. In the cab, the engineer will make a quick check of gauges to ascertain that no obvious air problem exists. He will test the locomotive’s bell and whistle. He will turn on the locomotive’s headlights (and ditch lights, if so equipped). He will position the reverser, close the generator field switch, and briefly power test the locomotive in both directions of movement. He will note the general condition and state of supply of the cab.

After the engineer is satisfied all is well in the cab, he will exit the cab to the outside walkway and check that the headlights are in proper working order, front and rear. He will open the engine locker doors to ascertain that there are no oil, fuel or cooling fluid leaks, and that the main diesel engine and air compressor appear in good order. He will check that lubricating oil and cooling fluid levels are adequate. He will check that tools, extra knuckles and replacement air hoses are present. He will note the condition of the walkways and hand rails.

Upon returning to the cab, the engineer will perform a locomotive brake test. This test requires the separate applications of the service and emergency range of braking, the reading of air gauges to determine the proper reduction level has been effected and to check for possible leaking or pressure regulating problems, and conducting a dynamic brake interlock test, if the locomotive

-23- is so equipped. The engineer moves between the cab controls and the ground in conducting this test

to ascertain that brakes apply and release, that piston travel is within the acceptable range, that

emergency sand is functioning and that brakes release when dynamics are applied.

After discharging these duties, the engineer reports to his crew members he is ready to

commence work, and he moves the locomotive to the point of the first job task. Depending on the

particular carrier operating rules, a job briefing may take place between the engineer and the ground

crew before switching cars begins.

As the ground crew performs their tasks associated with yard switching, the engineer will

handle controls to cause the locomotive to move forward or backward, accelerate, decelerate, and

stop. He will receive either verbal or visual signals from the ground crew in connection with the

various tasks being undertaken. He will make judgments as to how to control each movement based

on the number, type and weight of the freight cars he is handling, track configurations, grade and rail conditions (track and train dynamics). Movements of heavier and/or longer cuts of cars raise operating considerations different from movements of lighter and/or shorter cuts. These judgments will determine the speed, at which he moves the consist, when he applies or reduces power, when to coast and how soon to apply the brakes, which brake (independent or automatic) to use, and how much brake pressure to use to retard speed or to stop. While movements are underway he will look out for possible conflicting movements, improperly lined switches, obstructions and other conditions that could affect the operation. He must sound the engine’s bell and/or horn if he sees others need

warning of the movement, and before and during traversing a grade crossing. He will note any

unusual aspects of each movement which might indicate a problem, and if circumstances warrant,

he will bring any particular movement to a halt before great damage is done. For instance, an

-24- engineer will notice when it is uncharacteristically hard to pull or shove a cut of cars. This could indicate a derailment, locked wheels, etc. The engineer will also detect engine problems and alert mechanical forces so that repairs are effected and serious damage to the locomotive is averted. For instance, the engineer may notice that the locomotive makes too much exhaust smoke. This could indicate a fuel injection or engine cylinder problem.

The engineer is in charge of operating the locomotive both to move cuts of cars in and around the yard and in the switching/classification process itself. In larger terminals, he is often called upon to move locomotives considerable distances to pick up or drop off cars.

When the assigned work in the yard has been finished, the locomotive is placed on a designated tie-up track. The engineer completes a locomotive work report indicating any problems he noticed while operating the locomotive. He secures the locomotive and completes his tour of duty.

The training manuals that the railroads have created for their RCOs and the operating rules applicable to remote control operations (BLE EXHIBITS 3-34)12 indicate that all of the duties and responsibilities of the yard engineer have now been assigned to the RCO. For the convenience of the Board, this comparison is reflected in the following chart:

LOCOMOTIVE ENGINEER - RCO DUTY COMPARISON CHART Locomotive Engineer RCO RCO Duty - Source Reports for duty. Performs Reports for duty. Performs RCO Training Manual “walk around” inspection “walk around” inspection.

12 These materials are, carrier by carrier: CSXT (BLE EXHIBIT 30); NS (BLE EXHIBIT 31); BNSF (BLE EXHIBIT 32); KCS (BLE EXHIBIT 33); and UP (BLE EXHIBIT 34).

-25- Reports for duty. Performs Reports for duty. Performs RCO Training Manuals FRA Daily Inspection. FRA Daily Inspection. Railroad Operating Rules and/or Special Instructions Positions locomotive Positions locomotive RCO Training Manuals controls. Performs brake controls. Performs brake test. test. Uses reverser lever to Uses reverser switch to RCO Training Manual move locomotive forward move locomotive forward and in reverse. and in reverse.

Uses engine and train Uses engine and train RCO Training Manual brakes to control and stop brake levers to control and movements. stop movements. Judges how to control Judges how to control RCO Training Manuals movements based on track movements based on track OCU Manufacturers’ configurations, grade, rail configurations, grade, rail Instructions/Warnings conditions, type and weight conditions, type and weight of cars handled. of cars handled. Regulates locomotive Regulates locomotive RCO Training Manuals direction and speed direction and speed throughout switching throughout switching process. process. Rings engine warning bell Rings engine warning bell Railroad Operating Rules and horn to warn others of and horn to warn others of RCO Training Manuals movement. movement. Monitors engine Monitors locomotive performance while performance, but if not on operating locomotive. locomotive, problem must be detectable from a distance. Watches ahead for mis- Is responsible to protect the Railroad Operating Rules lined switches, conflicting point of movement. RCO Training Manuals movements, etc.

-26- Completes work report at Completes work report at Railroad’s Special end of duty tour. end of duty tour. Instructions Sample (UP)

As can be seen from this chart, the RCO’s duties and responsibilities with respect to

operating the locomotive in the performance of train (switching) service are virtually identical to

those of the locomotive engineer. This should surprise no one. When a diesel locomotive is

operated, the same functions are carried out whether the controls used are in the cab or outside the

cab. The duties and responsibilities for the operation of a locomotive in yard service have not

changed; they have merely been transferred to a ground employee who serves as a locomotive engineer in addition to his train service duties and responsibilities. Item 3 of the 1944 and 1945

Diesel Agreements does not permit this reassignment of the “existing engineers’ duties.” By doing so, the carriers have violated these agreements. This Board should so find and order that the practice be stopped.

IV. NO UNIFORM NATIONAL RULE ALLOWS THE CARRIERS’ DISPUTED WORK ASSIGNMENTS.

The carriers maintain that the national incidental work rule grants them the right to assign the job of operating locomotives via remote control to non-engineers. That rule came into being with the October 31, 1985 UTU National Agreement. The applicable portion is Article VIII,

Section 3 (a) (9), which states:

“Road and yard employees in ground service and qualified engine service employees may perform the following items of work in connection with their own assignments without additional compensation: ...

(9) Use communication devices; copy and handle train orders, clearance and/or other messages.

-27- BLE EXHIBIT 6.

The same rule was imposed on BLE in the Award of Arbitration Board No. 458 (“the “458

Award”) as Article VIII, Section 3 (h). BLE EXHIBIT 7 . The carriers contend that the belt pack

used by remote control operators is nothing more than a “communication device” as described in

this rule. We show below why this contention is grossly incorrect.

A. What is a “Communication Device” under the Incidental Work Rule?

The incidental work rule found its way into the 1985 UTU National Agreement and the

(imposed) 1986 BLE 458 Award as a result of the carriers’ concern that there were numerous

functions operating craft personnel were already performing that had become integral parts of their

jobs, even though they took little time to perform, but for which the carriers were having to pay extra

in the form of arbitraries. The carriers wanted to rid themselves of this expense and the need to

constantly be responding to time claims whenever this work was done. Hence, they sought to

delineate in the agreement the various incidental tasks already being performed that they could require operating craft personnel to do without additional pay. Using communication devices was just one.

That the operating control units here at issue do not fit the definition of a communication device is clear both from the context of the rule and the various explanations the carriers have made about the rule in other formal proceedings. First, Section 3 (a) (9) must be considered in its entirety.

It does not just say “use communication devices.” It says “Use communication devices; copy and handle train orders, clearance and/or other messages.” The intent of this rule was to ensure that management would not have to pay an operating employee to type a report into a computer instead

-28- of writing it down by hand, give it to a clerical employee, who would then type it into a computer.

Similarly, the rule was designed to allow an operating employee to use a photocopy or fax machine without extra pay. The carriers explained the purpose of the rule to Presidential Emergency Board

No. 219 in the next bargaining round when they proposed that the rule be clarified to confirm its intent:

The carriers propose the following revisions in the incidental work to be performed by operating craft employees without additional compensation: ...

2. The present provisions in the rule allowing the carriers to require employees to use communication devices should be clarified to expressly confirm that communications devices include data entry devices and computers.

“Incidental Work for Operating Craft Employees” - Carriers’ EXHIBIT No. 30 Before Emergency

Board No. 219, p. 1 (BLE EXHIBIT 35).

They explained why they sought the rule in the first place:

Fundamentally, the incidental work rule was a response to patterns that arise from arcane restrictions between crafts and classes of employees, designed to artificially separate the work, segregate the employees, and establish employee “ownership” of certain tasks as a form of job protection. Over time, these rules have led to a sort of time-claim mentality, in which employees are encouraged financially to file claims asserting, without regard to sensible operating procedures or the needs of the service, that the claimant either was required to perform some tasks that belonged to another craft, or that the employee had a right to some task that was performed by another craft. Modern competitive realities demand an end to this “time-claim” approach for the business of railroading.

Id. at 2. They stated that, among other things not relevant here, their proposal was intended “to make clear that communications devices which the employees may be required to use, include data entry devices and computers.” Id. at 3. The clarification, they said, was necessary because the intended effect of the rule was not being achieved due to a plethora of time claims:

B. Using Data Entry Devices and Computers

-29- Another problem facing the carriers arises out of the use of computer equipment by road and yard service employees. In the past, conductors filed written reports on their activities during their run. These reports were then entered into computers by clerks. Now a conductor can enter the same information into a hand- held device that stores the information. The conductor then plugs this device into another data storage device or computer at the final terminal and the report is automatically entered. There may also be a device or computer at the final terminal in which the conductor may enter the information that he formerly would have put in a written report. These devices all serve no other purpose than the communication of data. The conductor does no more or different work than he did before, he just uses a keypad rather than a pencil.

The incidental work rule contained in the 1985-1986 agreements provided that road and yard service employees could use communication devices and could prepare reports while under pay. These rules were intended to and do apply to the use of data entry devices and computers, but this position has been challenged repeatedly on some carriers, which have been deluged with claims for a day's pay by conductors required to use this equipment. In addition, some clerks have filed claims based on the premise that the conductor is performing their work. Hence, rather than force each carrier to defend the issue repeatedly in arbitration, the carriers propose that the incidental work rule be revised to make clear once and for all what should have been clear all along -- that "communication devices" include data entry devices and computers. It is no more work for the conductor to enter information into a data entry device or computer than it is for him to write the report. The clerk who formerly entered the information may now be used for other work. In today's rigorously competitive transportation environment, that is what is required.

Id. at 8-9.

This was reiterated in testimony before PEB 219. Carrier consultant (and former CSXT

Officer) Robert Upton testified for the carriers on this issue:

Another problem facing the carriers arises out of the use of computer equipment by railroad yard service employees.

In the past, conductors filed written reports on their activities during their run. These reports were then entered into computers [by] clerks. Now, conductors can enter the same information into a hand-held device that stores the information. The conductor then simply plu[g]s the device into another data storage unit, or a computer at its final terminal and that report is automatically entered.

There may also be a device or computer at the final terminal in which the conductor may enter the information that he formerly would have put in a written report. These devices all served no other purpose than the communication of data. The conductor does no more or nothing different – no work function different than

-30- he did before, he just uses a key pad instead of using a pencil.”

Transcript of Proceedings before PEB 219, October 9, 1990, p. 1475-1476. BLE EXHIBIT 36.

Then-UP Executive Vice President of Operations Richard Davidson elaborated on that theme:

Another area where the organizations have sought to prevent our implementation of technological changes is in the use of computers, specifically the use of data entry devices. The rail industry is continuously trying to increase the use of computers in its operations. A few examples of those efforts are where the crews are required to tie up, to enter their work order information, and to enter their payroll information by computer. Such functions were formerly performed by train and engine employees with a pencil and paper. They now enter the information directly. This reduces handling of such information, reduces the potential for error and expedites the processing of the information.

We are aware that our work force may not be computer literate at the outset but we’re developing computer programs that are user-friendly and can be learned by almost everyone in the workforce. We are also backing that up with extensive training for all of our operating employees.

Notwithstanding the fact that the 1985 national agreement with the UTU provides that employees can use communication devices without additional pay, some of the general chairmen have contended their members cannot be required to utilize the computer without getting additional compensation but we believe there can’t be any doubt that both the 1985 UTU agreement and the 1986 BLE agreement permit the use of computers without additional pay. We have to deal with the continued opposition of the organizations.

We believe this matter should be clarified in accordance with the industry’s position to avoid unnecessary time claim handling and arbitration.

Id. at 1509-1510.

This interpretation is also consistent with a new provision the carriers achieved in their

agreement with BRAC in 1986. Article IV - Direct Train Control of the 1986 BRAC/NCCC national agreement (BLE EXHIBIT 37), the carriers obtained the right “to implement the direct control of train movements and/or related rail operations without the direct involvement of a BRAC- represented employee.” As for the handling of communications, that agreement provided:

-31- [I]t is understood that the provisions for handling communications (train orders, communications of record, lineups, block or report trains, receive or forward written messages, etc.) contained in the various rules or practices under the BRAC collectively bargained agreements will not apply in the territory designated as direct train control territory.

The incidental work rules the carriers obtained from the operating unions complement this work rule concession they obtained from BRAC.

The intent of the rule also is evident from numerous awards resolving disputes concerning the introduction and use of true “communication devices” since the promulgation of Article VIII (a)

(9) of the 1985 UTU Agreement. For example, Arbitrator Francis X. Quinn held in Award No. 11 of Public Law Board No. 5137 (UTU and C&NW)(BLE EXHIBIT 38) that a facsimile (fax) machine was a communication device within the meaning of Article VIII (a)(9) because it was used to submit reports prepared by trainmen/yardmen while on duty.

In First Division Award No. 24222 (UTU and Soo Line Railroad)(BLE EXHIBIT 39), arbitrator David Twomey found that the rule permitted train service employees to use fax machines to receive General Orders, Circulars, Bulletins and Notices in connection with their crew assignments and then post them on a bulletin board for other crew members to read. Arbitrator H.

Raymond Cluster issued a similar ruling regarding fax equipment in Award No. 20 of Public Law

Board No. 5400 (UTU and Union Pacific). BLE EXHIBIT 40. He held that the rule allowed a carrier to require train service employees to fax work order documents to their ultimate destination instead of handing them over to clerks “who [previously] handled the information from then on.”

Before Public Law Board No. 5423 (UTU and Kansas City Southern)(Peterson)(BLE

EXHIBIT 41), KCS argued that the “communication device “ provision in the 1985 UTU national

-32- agreement applied to the placement and removal of end-of-train devices. The Board rejected the argument. Sitting with that Board, arbitrator Robert Peterson explained in Award No. 16:

“use communication devices”...read as a whole, intended a reference to the act or fact of communicating, or the interchange of messages by, for example, radio, telephone, and intercom. This, as opposed to the physical installation of the means of communication being utilized.

Id., p. 3.

See also Award No. 21 of Public Law Board No. 4721 (UTU and Norfolk & Western)

(Moore)(BLE EXHIBIT 42), and Award No. 6 of Public Law Board No. 4837 (UTU and CSXT)

(Marx)(BLE EXHIBIT 43).

B. The “Belt Pack” (OCU) is a set of controls, not a “communication device.”

The carriers are using the products of two manufacturers to implement remote control

technology: Canac Corporation’s Beltpack®II OCU IIe and Cattron-Theimeg Corporation’s

Accuspeed™ Locomotive OCU. (Manufacturer’s photographs of the two devices are on the next

pages; the Accuspeed™ photo is actual size). Both products are remarkably similar in appearance,

design, and function. The operating principles, technologies, control instrumentation, and operating

characteristics are virtually identical. The units carried by the remote control operators are commonly known as, and we will refer to them here, as the “belt pack.” The belt pack is a miniature set of locomotive controls that serves as a command module without which the locomotive could not move. It is anything but a communication device within the meaning of the incidental work rule.

Here is how the belt pack functions:13

13 The functions of the belt pack are described in greater detail in Canac Corporation’s application for a U.S. patent (BLE EXHIBIT 44) and Operating Manuals created by the carriers (continued...)

-33- First, the locomotive cab controls are placed in the proper position to permit remote control

operation. The belt pack control unit is turned on by turning the on/off switch located on the

front/right bottom of the unit. The operator turns on the locomotive’s headlight by depressing the

headlight switch on the left front of the belt pack control unit. The locomotive’s direction is

controlled by a reverser selector switch on the front right of the control unit, and the locomotive is powered up or down by operating the 8-position speed selector on the right side of the control unit.

The operator can make the locomotive move at 1, 4, 7, 10 or 15 miles per hour. He also can

place the locomotive in a "coast" mode, allowing it to slow down or speed up gradually (depending

on incline and grade) or stop it at once. The locomotive brakes (independent brake) are controlled

by a multiple position knob/lever on the left side of the control unit. The operator can place the

brakes in five modes – release, low, medium, full and emergency – all of which apply braking over

and above what the speed selector position is commanding. The automatic brake (train brakes) is

operated from a swivel toggle on the front left/center. Another switch turns the locomotive’s

warning bell on or off, and sounds the horn. Operating any of the belt pack’s controls generates a

specific radio frequency command to a receiver unit in the locomotive. Each particular operational

command is then executed by the locomotive.

Canac Corporation, the manufacturer of the belt pack utilized by CSX and BNSF, described

the functioning of its belt pack in its most recent patent application:

Remote locomotive controllers currently used in the industry are relatively simple devices that enable the operator to manually regulate the throttle and brake in order to accelerate, decelerate and/or maintain a desired speed. The operator is required to judge the speed of the locomotive and modulate the throttle and/or brake levers to control the movement of the locomotive. Therefore, the operator must possess a

13(...continued) party to this dispute (BLE EXHIBITS 30-34).

-34- good understanding of the track dynamics, the braking characteristics of the train, etc. BLE EXHIBIT 44. Canac stated flatly that the belt pack is “a locomotive control system

comprising a remote transmitter issuing RF binary coded commands....” and “A remote control

system for a locomotive, comprising: a first transmitter generating a set of RF signal Commands;

each signal command signaling the locomotive to execute a certain function....” Id., p. 1, 2.

All these functions directly parallel locomotive cab control functions. There is no difference between what the two methods of control accomplish, i.e., direct control of the movement and braking of the locomotive and cars coupled thereto by the manipulation of the respective control switches, levers and knobs. Thus, the only difference is that the locomotive engineer operating from the controls in the cab manipulates switches that send electrical commands to the locomotive control circuits which cause the locomotive to accelerate, decelerate and stop, while the remote control operator manipulates switches that send radio frequency commands to a receiver connected to the locomotive control circuits which cause the locomotive to accelerate, decelerate and stop.

As can readily be seen, there is no lack of interpretive guidance going to the definition of a communication device as intended in Article VIII (a)(9). The distinction between those devices which simply advance or convey information as opposed to the belt pack remote control unit which issues commands to operate a locomotive is clear.

This is consistent with what the carriers say in their RCO Manuals. For example, the April

2002 BNSF Remote Control Operator Reference Manual, Page 27, (BLE EXHIBIT 32) reads:

Section 2 - Equipment Description

Equipment locations

• A remote control operator carries an Operator Control Unit (OCU) to send commands to the locomotive.

-35- * * * * * *

Operator Control Unit (OCU) description

OCU Controls

The OCU has controls for:

• movement commands (direction, speed, and braking) • miscellaneous locomotive commands (bell, horn, and sand) ...”

A detailed analysis of the belt pack in use on BNSF is provided in the Statement of Dennis Pierce

(BLE EXHIBIT 45).

The CSXT August 2002 Remote Control Operation Instruction Manual (BLE EXHIBIT 30),

is replete with descriptions showing the Cattron Accuspeed is a set of locomotive controls. The

Manual, states (p. 3):

The controller is designed to duplicate the operating characteristics of the controls found on a locomotive and interfaces with the locomotive through a microcomputer electronic unit that ‘relays’ command signals from the controller to the locomotive.

And, at page 4:

1.1. OCU Description

...The OCU is designed to duplicate some of the operations found on the locomotive’s control stand.

And at page 12:

1.7. Direction Select Toggle Switch

A 3-position toggle switch is used to select the direction of locomotive movement. The switch has the following positions:

FWD (Forward): Selects the forward direction on the locomotive. ...

This evidence vividly dispels the notion that the belt pack can be characterized as a communication

-36- device.

The FRA’s Safety Advisory regarding Remote Control Operations (BLE EXHIBIT 46) strongly encourages that the portable controls “at a minimum, have the following features:

a. directional control; b. graduated throttle or speed control; c. graduated locomotive independent brake application and release; d. train brake application and release control; e. audible warning device control (horn); f. audible bell control, if equipped; g. sand control (unless automatic); h. headlight control; i. emergency air brake application switch; j. generator field switch or equivalent to eliminate tractive effort to the locomotive; and k. audio or visual indication of wheel slip/slide.

These elements are the same types of controls present on a conventional cab stand controlled by a locomotive engineer. The FRA plainly wants to ensure that the same type of controls are available for remote operation as are present in the locomotive itself. Most of these features are already present on the current generation of OCUs in use by the carriers party to this dispute. This shows that even the FRA has recognized that the OCU is a set of controls, not a mere communication device. Clearly, the belt pack is not a communication device within the meaning of the incidental work rule. It is a set of locomotive controls by which the operator controls a locomotive just as if he or she was sitting at the controls in the cab. The Carriers’ and UTU’s reliance upon Article VIII

Section 3 (a)(9) is misplaced and cannot justify the assignment of engineer’s duties to ground service employees. To argue otherwise shatters credulity.

C. Even if the “Belt Pack” is considered a “communication device,” Side Letter 9 precludes the carriers from assigning its operation to non-engineers because to do so would infringe on the work rights of the locomotive engineers.

-37- As noted above, Side Letter 9 to UTU’s 1985 Agreement provides that the carriers may not rely upon the provisions of the incidental work rule to assign work to UTU-represented workers if the work belongs to another craft: “Such provisions are not intended to infringe upon the work rights of another craft as established on any railroad....” The significance of this exception to the rule was explained in detail in Award No. 1 of Public Law Board No. 5220 (BLE and Burlington Northern)

(LaRocco) (BLE EXHIBIT 47), which considered the identical language in Side Letter No. 7 to

BLE’s 1986 imposed national agreement:

Per Side Letter 7, the Carrier may not manipulate its new found rights in Article VIII, Section 3 to dilute or eliminate the work rights of other crafts. If the Carrier could use Article VIII, Section 3 as a device to take work from other crafts and assign it to engineers, it is unlikely that the arbitrator of the National Agreement would have adopted the language in Article VIII, Section 3. For the same reason, we are unpersuaded by the Carrier’s argument that the issue of work rights infringement is a matter solely between the Carrier and another craft. Reaching such a result would completely disregard the final sentence of paragraph 2 in Side Letter 7. .... The Carrier cannot use Article VIII, Section 3 or the assignment fo work thereunder as a defense to a grievance brought by another labor organization claiming right to the work assigned to an engineer. To avoid the infringement on another craft’s work, the assignment of the incidental tasks to engineers can be construed to neither destroy the exclusivity of work accruing to another craft nor used to interpret any scope rule or classification of work rule. Otherwise, the Carrier could assign incidental work to an engineer under the auspices of Article VIII, Section 3 with the goal of undermining the work rights of another craft. Thus, the Carrier violates Side Letter 7 if it invokes Article VIII, Section 3 or the assignment of work thereunder as a defense to the claim brought by another craft. The Carrier must cease using Article VIII, Section 3 in other cases. In sum, if the Carrier could use Article VIII, Section 3 as a defense against claims brought by other crafts, the Carrier would be overcoming the intent of the parties that the operation of Article VIII, Section 3 was not to disturb the existing work rights of other crafts.

Id., p.13-14.

While arbitrator LaRocco was addressing the rule in the context of a dispute over whether the carrier could rely upon the incidental work rule to force engineers to perform shop craft employees’ work,

-38- his observations are equally applicable here. The carriers simply may not rely upon the rule as expressed in UTU’s agreement to take away from the engineers work that properly is theirs. The elimination of the locomotive engineer’s position from the remote control assignments is evidence in and of itself that the use of the belt pack has infringed upon the work rights of the engineers’ craft.

In an article entitled “Galesburg switchmen go wireless” in its Chicago Division June 2002 newsletter (BLE EXHIBIT 48) , BNSF describes how all-encompassing the RCO’s responsibilities are: “The remote control units, attached to a high-visibility reflective vest, permit the operator to control every aspect of the locomotive as if he or she were in the cab.” Plainly, it is the operator, not the on-board microprocessor, that has supplanted the engineer.

Should there still be any doubt that RCOs are de facto engineers, that is eliminated when one considers what the employees working as RCOs say about their jobs and what has been witnessed by the engineers observing them across the country. Exhibit 49 to this Submission is a collection of statements from carrier employees at yards where remote control operations have been instituted.

These employees attest to the fact that RCOs are operating yard engines just like locomotive engineers formerly did. They do all the same things with the locomotive that the yard engineer used to do, including starting and stopping; controlling the direction of the movement; setting, increasing, and decreasing speed throughout the movement; sounding the horn and bell; and operating the lights.

They are pulling trains in the yard just like engineers did before the carriers abolished the engineers’ jobs and replaced them with RCOs. They are moving large cuts of cars from the receiving tracks to the classification areas, in full control of the movements as they do. They are making these movements in response to verbal signals they are receiving from other employees on the ground.

They are bringing in trains that crews could no longer operate because the crew had reached the

-39- maximum number of hours permitted under the federal Hours of Service law (i.e, “dogcatching”),

traversing public crossings along the way. RCOs on the ground often verbally signal RCOs sitting

in the locomotive cabs as to locomotive movements, rather than using the pitch and catch feature

of the belt packs.

These statements demonstrate that belt pack units are being used by RCOs to operate

locomotives both from the ground and from the cab. Indeed, in many cases, RCOs are sitting in the

very seats formerly occupied by the engineers to operate the locomotives within arm’s length of the

conventional controls. These incidents are not limited to one carrier, or one location. They provide

the Board with undeniable proof that the carriers intend to rely upon their agreement with UTU to

eliminate locomotive engineers entirely from their terminal operations, despite the equally

undeniable fact that they always before considered themselves bound by agreement and practice to employ a locomotive engineer on every diesel locomotive. Side Letter 9 simply does not allow them to do that, even if this Board finds that the belt pack is a communication device within the meaning and intent of the incidental work rule.

V. ENGINEERS, LOCOMOTIVE CONTROLS AND MICROPROCESSORS

Adopting the vendors’ hype, the carriers posture that with the remote control system, the

engineer has been replaced by a “brain in the train.” With the placement of a few microprocessors,

they say, the locomotive engineer has been made superfluous. This contention is not just demeaning

to locomotive engineers, who are undoubtedly the most highly trained of the operating employees

contributing to the transportation service provided by these carriers, it is pure hoax. These

microprocessors have not assumed the engineer’s judgments, duties or responsibilities necessary to

-40- operate the locomotive -- all that has been transferred to the remote control operator. The microprocessors are simply electrical circuitry programmed to react to the operator’s commands to control some of the locomotive’s functions in pre-determined ways. In truth, these particular microprocessors join myriad other microprocessors already present in electrical lockers for controlling a locomotive.

There is nothing new in this. Locomotives have not been directly controlled by locomotive engineers for many decades. Engineers move levers, toggle and slide switches to generate locomotive movements. Those levers and switches send commands to microprocessors and to locomotive mechanical and electrical components. In the end, the locomotive moves, pushes or pulls, and stops because the operator issued a control command, not because, for instance, the locomotive’s electrical circuitry fixed the polarity of, or excited the main generator field.

Consider, for example, what happens when it is desired to move a locomotive forward at a relatively low speed for a short distance to a coupling with a stationary freight car. We will use a

General Motors Electro-Motive Division (EMD) GP-38-2 in our illustration.

The engineer first moves the reverser lever on the control stand from the neutral to the forward position. The lever closes a switch in the control stand which sends an electrical request to four switch modules connected to motorized switch gear in the main generator. This sets the polarity of the generator so that electrical current is routed to the traction motors to cause forward motion once the throttle is opened.

Next, the engineer releases the independent (engine) brake by moving the independent brake handle to the release position. This causes the pressurized air in the brake cylinders to vent to the atmosphere. This release of air causes a drop in the air pressure, which allows the brake cylinder

-41- pistons to retract. As a result, the brake rigging relaxes, which removes the brake shoes from the

wheels.

Then the engineer moves the throttle14 to a “run” position. There are eight throttle “run”

positions on the console; they are numbered one to eight (sometimes called “notches” in a throwback

to the vernacular of the steam engine era). For this illustration, we will assume the engineer puts the throttle in the Run 3 position.

The throttle lever is connected to five micro-switches by an interlocked cam. With the throttle handle in Run 3, the micro-switches close what is called the “3 through 8 interlock.” This, in turn, sends a signal to the main (diesel) engine governor, and the governor causes fuel to be injected into the engine sufficient to maintain a pre-set level of engine revolutions per minute

(rpm’s) through the intermediate action of various solenoids. The drive shaft of the diesel turns the dynamo in the main generator. Simultaneously, the auxiliary generator is caused to send electrical current through the main general field, which produces generator field excitation.

A microprocessor, known as the “TH Module,” sets up and maintains kilowatts reference.

It manages this by controlling the strength of the general field excitation. This governs the amperage which will be produced at the determined throttle setting. The electrical current produced is routed to the axle-mounted traction motors and is transformed to mechanical energy15 by a system of gears

which connect the motors to the locomotives axles. This turns the wheels, and the locomotive

14 The word “throttle” is a carryover from the steam era. The throttle was a valve mechanically manipulated by the engineer that controlled how much steam would be forced into a locomotive’s cylinders. In a diesel there is no actual throttle as the word formerly applied. Today, when we refer to the “throttle,” we mean the instrument used to set the running positions of the locomotive.

15 Heat is also a product of these functions, which is dissipated by blowers (fans).

-42- begins to move.

The engineer allows the locomotive to accelerate to the desired speed. He judges that speed by referencing the speedometer or by visual, physical reference to the environment. Upon reaching the desired speed, the engineer will maintain that speed by modulating the throttle (perhaps between

Run 1, Run 2, and Idle), coasting (Idle) and brake, depending upon track grade.

As the engine draws near to the freight car for coupling, the ground service employee will communicate the closing distance to the coupling to the engineer by hand or voice (radio) signal..

As the freight car is approached, the engineer reduces the speed of the locomotive by placing the throttle in Idle, and then by applying the independent brake by moving the independent brake handle. The engineer will “feather” the brake (increase and decrease brake effort) as the engine draws nearer the freight car, and finally the ground service employee will direct the actual coupling to the car. It may be necessary for the ground service employee to instruct the engineer to stop short of the car if drawbars or couplers need adjustment.

In the entire movement just depicted, every one of the engineer’s actions activated electrical circuitry (including microprocessors), causing the locomotive to carry out the functions the engineer commanded the locomotive perform.

When controlled from the belt pack the identical movement is accomplished in virtually the same manner. The operator releases the independent brake by moving the independent brake switch on the OCU to the release position. That sends a command to the electrical circuitry in the locomotive linked to the independent airbrake to open a relay valve which vents the brake cylinder pressure, causing the brakes release.

The RCO then moves the direction control switch to forward. This sends a command to the

-43- locomotive’s circuitry which then fixes the generator field polarity, just like the engineer commanded in the illustration above.

The RCO then throttles up the locomotive by moving the multi-position power control lever to the 10 mph position. The electrical circuitry on the locomotive receives this command and powers up the locomotive in the exact manner as was accomplished by the engineer’s operation of the control stand throttle. The equivalent throttle setting -- such as Run 3 or some other pre-set throttle setting – is requested by a microprocessor. The locomotive accelerates forward. The RCO can now let the locomotive accelerate to 10 mph, or he can move the power control to coast and move at any speed under 10 mph. If the speed slows too much, the operator can feather the power control lever between coast and 10 mph, and in that way move the locomotive at the desired rate.

Or he could move the power control to the 7 mph position and the locomotive’s electrical circuitry will maintain that speed.

As the locomotive nears the stationary freight car, the RCO moves the power control lever to decreasing speed settings, or places the power selector in coast. He brings the locomotive to a stop by manipulating the multi-position independent brake switch, or he places the power selector switch in the stop position, and the brakes apply. He can time the braking to coincide with the coupling to the car, or he can place the power selector switch to one mph, couple into the car, and then put the power selector switch in the stop position. Either way it is done, the car will become coupled to the locomotive. Just like in the case of the engineer, the skill of the operator in running the locomotive is determinative of the method used and how gentle the coupling is achieved.

The only difference between the two methods of operating the locomotive --at the control stand or with the belt pack -- is the manner in which the throttle and brake functions are handled to

-44- accelerate, decelerate or stop. But in either case, one thing is palpably evident; the locomotive does not decide for itself what direction to go, when and how to accelerate or decelerate, and when to stop. A person must manipulate the controls to cause the locomotive to operate.

What Arbitrator Robert E. Peterson said in Award No. 4 of Public Law Board No. 3622 bears repeating:

...it has been held many times in the past that the general class, character and purpose of the work as a whole and the reasons for doing it, rather than the manner, method or detail of the performance or the nature of its component parts, are persuasive in determining whether work is embraced in the scope rule of an agreement.

BLE EXHIBIT 23, p. 4.

The addition of some microprocessors as component parts of a locomotive has not changed the general class and character of the engineer’s work. The microprocessors do not let a locomotive decide for itself when to go, which direction to go, what speed is appropriate, when to accelerate or decelerate or when and how to stop. All of the judgments that a locomotive engineer must make concerning the dynamics of train handling must still be made, and the carriers have simply assigned that responsibility to a ground service employee. All of the engineer’s duties associated with the operation of a locomotive, the necessary modulations of throttle and brake, must still be done. The carriers have merely assigned them to a ground service employee.

The RCO does not merely signal a locomotive. He operates it. A signal is a message to an operator to do something; it does not actually effectuate the doing of the thing. For example, a switchman used a lantern or hand movements to signal to the engineer that he could proceed to move the locomotive; the switchman never however had the responsibility to undertake the action he was signaling could commence. He could never use the lantern, or his hands, or the radio to implement the action he was signaling for. The decision when and how to act in response to the message

-45- always lay with the engineer.

Certainly the Federal Railroad Administration (FRA) does not believe microprocessors have replaced the locomotive engineer. FRA requires RCOs be certified under the Locomotive Engineer

Certification Regulations (49 CFR Part 240) and holds them accountable for any transgressions of operating rules and practices pursuant to 49 CFR Part 240.117 (BLE EXHIBIT 50).16 In the event an RCO has his engineer certification revoked, he may appeal such revocation to the Locomotive

Engineer Review Board pursuant to 49 CFR Part 240.401 and 240.403.17 If the RCO was merely

“communicating” to microprocessors and not actually operating a locomotive, why would FRA require the RCO be held accountable as an operator? If all the RCO was doing was signaling the locomotive as he has the engineer, why should he be subject to the Engineer Certification

Regulations at all? The answer flows from reality. The carrier’s claims and rationalizations do not.

VI. THE PARTIES’ PAST PRACTICE HAS BEEN TO BARGAIN OVER THE INTRODUCTION OF NEW TECHNOLOGY THAT INVOLVES CRAFT MANNING AND SCOPE ISSUES.

In the past, when the carriers have wanted to utilize new technology that could impact the manning provisions or scope of duties of a particular craft, they have negotiated changes to agreements to address the use of such technology. For example, the carriers have negotiated crew consist reduction agreements with UTU because the use of two-way radios, trackside defect

16 This was confirmed by FRA spokeman John Conklin during remarks he made at a BLE Regional Meeting held in Wilkes Barre, PA, August 19 and 20, 2002, and in “FRA Regulations & RCL Operations Q & As,” issued by the FRA this summer. BLE EXHIBIT 51.

17 Id.

-46- detectors and the like had lessened the need for trainmen.

In this bargaining round, the carriers have placed on the table proposals that would, if agreed to by BLE, afford them the unquestioned discretion to undertake the changes they have chosen to undertake unilaterally. The round began on November 1, 1999, when the carriers served bargaining proposals on BLE pursuant to Section 6 of the RLA. Two parts of the carriers’ proposals are particularly pertinent here:

Eliminate any existing restrictions on the use of employees, whether or not represented by the Organization, to perform any work as and where needed without claim or penalty; and provide that a carrier in its discretion may require any employees represented by the Organization to perform any work as and where needed that the carrier deems appropriate.

If and where any restrictions exist, provide that there will be no restrictions on (or additional compensation for) the use of new technology by employees in any craft, and such use shall not create an exclusive right thereto.

BLE EXHIBIT 52. Had BLE agreed to the carriers’ proposal, the dispute before this Board would not have arisen because the carriers would have eliminated contractual restrictions that require the carriers to assign the operation of locomotives in freight yards to locomotive engineers. But BLE has not acquiesced in management’s proposal and collective bargaining remains ongoing.18 Id.

By contrast, the carriers served the same proposal on UTU and they resolved their differences by an agreement that “assigns the use of new technology” to UTU-represented workers, provides those workers with “additional compensation” for performing the assignments, and

“create[s] an exclusive right thereto.”

18 The Carriers will argue that there are no “existing restrictions” in their agreements with BLE that limit their rights to assign the “new technology” to UTU-represented workers. We have already shown that this argument is hollow.

-47- VII. THE CANADIAN CASE DOES NOT LEAD TO A DIFFERENT CONCLUSION.

Just as they did in the proceeding in the U. S. District Court that led to this arbitration, the

carriers will rely heavily on the 1993 arbitration award in Case No. 2191 of the Canadian Office of

Arbitration (Canadian National Railway and BLE)(Michel G. Picher, Arbitrator)(hereinafter the

“Canadian Award”)(BLE EXHIBIT 53). In court they argued that the Canadian Award gave them

at least an “arguable justification” for their contentions that the belt pack is a “communication

device” and/or that microprocessors have eliminated the need to assign a locomotive engineer to yard switching operations, so as to force the parties to arbitration here. The findings in that award, however, reveal that the same result is not appropriate here.

First, the arbitrator in the Canadian case was not faced with agreement language that precluded the assignment of engineers’ work to other employees. BLE in Canada had not negotiated agreements like the 1944 or 1945 Diesel Agreements. Arbitrator Picher never had to consider the meaning or effect of the language “[t]he existing duties and responsibilities of engineers will not be assigned to others.” Therefore he was not compelled by clear and unambiguous agreement language to examine the historical nature of the engineer’s duties in order to consider whether someone else had been assigned those duties in violation of the Diesel Agreements. His conclusion that nothing in the BLE collective bargaining agreement conferred exclusive jurisdiction to the Organization with respect to all locomotive movements or in connection with remote control operation of locomotives in yard service is simply not apposite here.

As we have already shown, even though locomotives are more powerful and more electronically sophisticated today than they were in the mid-1940s when the Diesel Agreements became effective, engineers still serve the same function ( to transport rail cars on railroad tracks)

-48- and operate on the same principles (diesel engine generating electrical power for locomotion) as did engineers on diesel locomotives in the 1940s. Changing the point from which you operate a locomotive does not change the fact you are operating it.

Moreover, the equipment used in Canada was far more restrictive on the remote control operator than the equipment the carriers are using here. The equipment being used in Symington

Hump Yard (where the Canadian dispute arose) eliminated the need for an employee to protect the point of movement because it provided a system of “electronic point protection.” CN’s operation described a three-component protection system that was an essential element of its argument that the engineer had been replaced by technology. The CN system was comprised of what it called

“Vital Track Circuits & Timers,” “Tether,” and “Transponder Subsystem.” The functions of these components, as described in a CN presentation that was an exhibit in the Canadian case (BLE

EXHIBIT 54), are as follows:

Vital Track Circuits & Timers: First components of electronic point protection

Installed along the pullbacks, monitors occupancy by locomotive.

If consist occupies next circuit sooner than expected (according to the permissible transit speed) - system declares engine is speeding, disables tether tone, consist placed in emergency stop.

Tether: Second component of “Electronic Point Protection”.

Provides safety net which limits locomotive movement in the eastward direction on pullback.

Tether operation is vital (ie FAILSAFE), specific tone broadcast received to prevent emergency brake.

Tether broadcast continuously, belt pack listens for it only on pullback when movinmg eastward.

-49- If tone is cut, or the loco passes easternmost limit, power removed and emergency brake applied.

TETHER BROADCAST FOR HUMP APPLICATIONS ONLY

Transponder Subsystem: Third component of “Electronic Point Protection”.

Uses interrogator mounted on locomotive, to provide location data to the controller.

Transponders (30) are installed on the pullback tracks according to a precise safe stopping trajectory curve, designed to control a 14,700 ton train such that the permitted speed tapers to zero at the eastern limit of the operating territory.

Interrogator detects transponder, feeds identity to controller.

Controller compares I.D. to map in memory. If locomotive speed is above permitted, automatic power reduction &/or brake application occurs to adjust locomotive speed accordingly.

If two consecutive transponders are missed (ie damaged transponders or interrogator), the system applies an emergency stop. (The transponder subsystem is not considered to be vital).

Transponders, track circuits, vital timers, and inductive tether are ground based. Their function is generic to all belt pack hump consists.

Transponders are placed inside dapped tie. Protective covering prevents damage from snow removal and heavy equipment.

Id. p. 4-5 (Emphasis in original).

The “Mobile Controller”, what CN called the “‘brain’ of the on board system” responded to both the belt pack operator and the ground-based “electronic point protection” system. The CN presentation explained that the Mobile Controller

“Receives operator command requests via the radio communication link as well as information from locomotive sensors (speedometer, transponder subsystem, safety equipment, tether tone receiver, PTC system).”

Id, p. 6. The on-board equipment CN added to the conventional GH 20 hump locomotive also

-50- included a “Tether Receiver & Antenna” that “[l]istens for a specific set of tones when moving eastward direction along pullback,” a “Transponder Interrogator” that “[d]etects transponders & relays ID to mobile controller,” as well as a “Mobile Interface [that c]onnects the controller to standard electro-pneumatic locomotive controls.” Id. p. 6-7. In the CN operation, the RCO was not permitted to initiate a pullback without ensuring the automatic point protection system was enabled:.

Second, whether hostlers or locomotive servicing employees move locomotives for purposes other than the transportation of cars is irrelevant. This dispute concerns the operation of locomotives in connection with the movement of trains. We do not deny that other personnel are called upon to move locomotives for servicing or yard delivery purposes. But they are never called upon to do so in connection with the movement of cars. For example, roundhouse employees move locomotives in restricted servicing areas for purposes of performing maintenance and repairs. And hostlers deliver locomotives from those servicing areas to train departure tracks where they were placed into the charge of locomotive engineers. But those delivery and repair-related functions are wholly separate and apart from the switching of cars to make and breakdown trains. Prior to this dispute, there has never been any question that engineers are the only employees with jurisdiction to operate locomotives in the performance of switching operations.

The fact that hostlers or other personnel moving locomotives may perform no service apart from the making up or breaking up of locomotive consists in the servicing area, or the delivery of the locomotive to the point where it would be given over to the locomotive engineer, has been confirmed on numerous occasions in arbitration. When hostlers have been required to perform yard service within the exclusive jurisdiction of engineers, claims were filed and consistently sustained in arbitration. These arbitration awards represent further proof that the carriers must assign

-51- engineers to perform all work in connection with the operation of locomotives in train service. See

NRAB First Division Award No. 17483 (BLE and Central of Georgia Railway)(Carey)(BLE

EXHIBIT 55); NRAB First Division Award No. 1412 (BLE and Northern Pacific Railway)(BLE

EXHIBIT 56); NRAB First Division Award No. 11690 (BLE and Great Northern

Railroad)(Lewis)(BLE EXHIBIT 57); NRAB First Division Award No. 2772 (BLE and Colorado

and Southern Railway)(BLE EXHIBIT 58); Award No. 48 of Public Law Board No. 2716 (BLE and

Houston Belt & Terminal Railway)(Dolnick)(BLE EXHIBIT 59); Award No. 21 of Public Law

Board No. 2313 (BLE and Delaware and Hudson Railway)(Weston)(BLE EXHIBIT 60); Award No.

8 of Public Law Board No. 3153 (UTU-E and Norfolk and Western Railway)(Fredenberger)(BLE

EXHIBIT 61).

Even assuming for argument that “automation” accomplishes ( as opposed to facilitates)

some of an engineer’s duties, it does not matter that the carriers are assigning only a part but not all

of the engineers’ duties to ground service employees. The Diesel Agreements make no provision

for the assignment of any of the engineer’s duties to others.

Third, the Canadian case addressed only unmanned locomotives to be used in hump operations. Here, the dispute involves a general application of remote control to “switching in and around terminals.” Arbitrator Picher did not consider a general application of remote control

technology to the full breadth of an engineer’s duties in general yard switching. He was not faced

with a situation where the employee operating the remote controls was in the cab – “Since its

introduction the yard engine has been unmanned....With the introduction of the belt pack there is no

longer a need for a person on the locomotive....” Id. at 4. Here the carriers have trained and are

using RCOs to operate locomotives from the cab as well as from on the ground. See pp. 2, 40,

-52- supra.

Finally, insofar as the Canadian Award found that the belt pack technology has diluted the

degree of control or refinement of the control of a locomotive, that finding is not supportable on the

record here. Plainly, the individual using the belt pack is controlling the operation of the

locomotive. The belt pack has not de-skilled the task of moving locomotives to the point that the

locomotive engineer’s function has been eliminated. Indeed, the introduction of the belt pack has

not eliminated the need to have an operating employee start the locomotive, sound the bell, sound

the horn, regulate the lights, set the direction, set the speed, move the train, increase and decrease

the speed, protect the movement, and stop the train; those functions have always been done by the

engineer. Before this dispute, there was no question that the performance of those responsibilities

fell exclusively within the engineer’s domain. The belt pack hasn’t changed those core

responsibilities; the carriers have simply assigned them to someone else. The use of a belt pack only

changes the location from which the locomotive controls are operated and restricts the employee’s

flexibility to shift within set throttle and braking ranges. These are distinctions that make no

difference.

We have shown that the manufacturers of the OCU in the instructions, descriptions and warnings they themselves publish acknowledge that the belt pack operator assumes the engineer’s duties and responsibilities in handling the locomotive and freight cars. Further, the training manuals the carriers provide to the RCOs are replete with instructions, directives and information making it crystal clear that the belt pack operator is truly operating the locomotive. All this conclusively

demonstrates that the engineer’s function has not been eliminated.

Arbitrator Picher, it seems, decided that a locomotive engineer’s skill level was an important

-53- factor in his deciding whether an engineers’ duties could be given to a “Yard Operations Employee.”

It may be argued that the locomotive engineering skill level required in some yard switching operations is not as great as what is required of a road engineer operating over mountain grades.

But, depending on the circumstances, it is equally true that some yard operations may demand as much or more skill from the engineer than would be required of a road engineer. Sometimes road and yard service is combined, and both road and yard engineers are expected to accomplish identical work over the same territories with equal degrees of competence and accountability. Sometimes engineers perform duties where very little skill is required at all, such as checking to see that his watch corresponds to the standard clock, or a hundred other routine tasks. Skill requirements, or

“degree[s] of control and refinement”19 however, are not relevant to an application of the collective bargaining agreement provisions or work jurisdictions at issue in this case. The point is that engineers’ duties and responsibilities in train service are what they are, and they belong exclusively to engineers in train service. What matters is not the skill or refinement of the person in control, it is that a person is controlling the locomotive. While we do not agree that in the Canadian case BLE failed to make out a prima facie case, we certainly do believe in the instant proceeding that we have done so. To conclude otherwise is to turn a blind eye to the facts.

Finally, a few words concerning Arbitrator Picher’s citing of a few arbitration awards of mostly Canadian progeny, a few from the U.S., Kennecott Copper Corporation, (53 BNA Labor

Arbitration Cases 23 (Gorsuch 1969) in particular. Nothing in Arbitrator Picher’s findings indicate that General Order No. 27 or the 1944 and 1945 Diesel Agreements were in evidence in those cases.

Our research has turned up no indication they were. This is important, of course, because whether

19 Canadian Award at 10.

-54- operation of a locomotive on a particular property belongs exclusively to one bargaining unit depends on the agreements and practices peculiar to that property. Kennecott Copper Corporation was not a carrier party to the 1944 and 1945 Diesel Agreements. That decision, and all those like it, are inapposite to the instant case, and lend no support to the notion that on the railroads party to this proceeding that engineers’ duties and responsibilities may be assigned others.

Arbitrator Picher cautioned (p. 9) that the Canadian situation “must, to a great degree, turn on its own particular facts.” The particular facts in this country clearly demonstrate that a different result is called for. The Canadian case arose in an environment of different use of remote control technology, different collective bargaining agreement provisions, a different pattern of historical practice, different arbitral precedent and plainly different facts as compared to the dispute here.

Each of these distinctions renders the Canadian Award an unreliable basis for sustaining the carriers’ arguments.

-55- CONCLUSION

We have shown in this case that BLE-represented engineers have the exclusive right to

perform the duties and responsibilities of the craft of locomotive engineer. We have shown that the

central part of those duties is to operate diesel locomotives in the performance of train service on the trackage of the carriers party to this dispute. We have shown that locomotive engineers have

historically operated locomotives via remote control whenever remote control technology was

implemented. We have shown that the OCU is not a communication device as contemplated by, and its use by ground service employees is not supported by, Article VIII, Section (3) (9) of the October

31, 1985 UTU Agreement. Even if the OCU could be found to be a communication device within

Article VIII, its use is precluded by Side Letter 9 of that Agreement. We have shown the OCU is a set of controls by which a locomotive is operated by a ground service employee who has been

assigned the duties and responsibilities of the engineers’ craft. We have shown that the remote

control technology presently utilized by the carriers party to this dispute does not substitute for or

accomplish all the duties and responsibilities of a locomotive engineer or obviate the application

of the engineer’s judgment in train handling dynamics. We have shown that RCOs cannot perform

the work they are being assigned without training in air brake handling, train handling techniques,

and operating rules. Finally, we have shown that the FRA has determined RCOs to be a class of

locomotive engineers subject to the Locomotive Engineer Certification Regulations.

There is no contractual justification for the assignment of BLE-represented engineers’ work

to others as is now taking place. The carriers’ economic objective to pare down employee costs by

eliminating locomotive engineers’ positions is no justification for abrogating the BLE collective

bargaining agreement. The fact that the representatives of the ground service employees have

-56- agreed to perform locomotive engineers’ work does not justify the abrogation of the exclusive right of BLE-represented engineers to perform such service. For all these reasons this Board must find for the BLE without having to consider local agreements and arguments set forth in the Separate

Property Presentations of BLE’s Submission.

It is important to say, at this juncture, that no one should infer by anything BLE has said or argued in this case that BLE is attempting to impede the introduction of new technology or frustrate the carriers’ proper efforts to manage their railroads more efficiently. However, we believe in this instance that the relief the carrier is helping itself to must come through negotiations and not through the deliberate abrogation of the BLE Agreements.20

20 In the event the Board is not persuaded by what has already been presented, we ask the Board’s careful consideration of the property-specific material which follows under separate cover.

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