REPLY SUBMISSION OF THE BROTHERHOOD OF LOCOMOTIVE ENGINEERS

Introduction

BLE’s Opening Submission explained how locomotive operations have traditionally been conducted and the collective bargaining agreement rules that apply to such operations. BLE showed how the rules in the collective bargaining agreements and past practice between BLE and the carriers (both nationally and locally) require that a locomotive engineer be part of the crew, and that the carriers may not assign the duties and responsibilities of an engineer to other employees. We also showed that there are no exceptions to these rules that apply in this dispute.

Despite the agreements and historical practice, BLE showed, the carriers have in fact reassigned the duties and responsibilities of the engineer to UTU-represented employees whom they have named Remote Control Operators.

The carriers argue that the portable operating control unit that the RCOs are using, known as a belt pack, is a “communication device” within the meaning of the Incidental Work Rule in the

UTU and BLE agreements; BLE has demonstrated why that argument is not credible. As for the argument that technology has eliminated the need for an engineer, BLE showed (1) that engineers have always been the employees to use locomotive-operating remote control devices and microprocessors in the past, and (2) that the engineer’s duties and responsibilities, in truth, have not been transferred to electronics, but have been assumed by the RCO. Finally, we established that technology issues involving the operating crafts have always been resolved at the bargaining table in the past and that the arbitral precedent on which the carriers rely for a different conclusion is not

-1- convincing here.1

In this Reply Submission, we will show that the carriers and UTU have not presented any evidence that should cause this Board to hold anything other than that the carriers’ 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.

In response to UTU’s Question, the Board should answer that the involved carriers were not proper in their assignment of trainmen (yard conductors and yard helpers) to perform remote control operations in their terminals.

In response to the Carriers’ Question, the Board should hold that under the Carriers’ collective bargaining agreements with BLE and UTU, the Carriers may not assign use of remote control technology to ground service employees represented by the UTU, thereby eliminating the locomotive engineer position.

1 In separate presentations by the BLE General Committees of Adjustment, BLE provided the Board with an analysis of rules that are particular to certain carrier systems, or parts of systems. (Because BLE was uncertain of Conrail’s intentions prior to receiving the Carriers’ Opening Submission, it did not initially submit the relevant governing local rules on hat property. That submission is attached hereto.) As we explained, there are common facts and agreements that provide this Board with a sound basis for holding that BLE’s position should be sustained without having to examine individual property rules. If the Board finds, as we do not believe it should, that the common facts and agreements 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.

-2- REPLY ARGUMENT

I. THIS DISPUTE IS NOT OVER ALL OF THE REMOTE CONTROL OPERATOR’S WORK; RATHER, IT IS WHETHER THE RCO HAS BEEN ASSIGNED ENGINEER’S WORK CONTRARY TO BLE AGREEMENTS.

The Carrier’s Opening Submission (p. 4-7, 46-50) focuses on everything the RCO does and argues that, overall, the RCO is more like a trainman than an engineer. But that is not the issue this

Board has been asked to decide. This Board has to decide whether, when the RCO is using the OCU to control locomotive movements, he is performing work that belongs to the engineers2.

The carriers would deflect the Board away from that question by examining everything else

they are assigning to the RCO, but that other work is not being contested. The question of how to

characterize the craft to which an employee belongs is not for this Board to determine. That

question is a representation matter solely within the jurisdiction of the National Mediation Board.

As this Board is well-aware, craft and class distinctions have been the source of litigation before the

NMB as a result of applications filed by the UTU to determine that there no longer are separate train

and engine service crafts on the major carriers. The NMB has determined twice in recent years that

there are3; it is not an issue with which this Board should be concerned. Whether some or even most

of what the RCO does is what a switchmen does in a conventional operation, or whether most of the

time he works is spent doing it, is irrelevant to the determination whether the non-switchmen work

he does is work that belongs to the engineers. The latter question is what this Board has to decide.

The carriers’ focus on the “core work” of the RCO is misdirected. It is the duties and

2 The carriers have instructed RCOs that they may not use the conventional locomotive controls to operate locomotives. Carriers’ Exhibit 8, ¶ 18. They concede, as they must, that were the RCO to use the conventional controls, he would be doing engineer’s work

3 27 NMB 244, 27 NMB 247 (2000); 29 NMB 410 (2002).

-3- responsibilities of the engineer that the RCO is performing that is significant here. Whatever else

the RCO may be doing, if the RCO is performing the engineer’s work, then the carriers have

violated their agreements with BLE.

The significance of “core work” in the NMB proceedings resulted from the UTU’s argument

that the separate train and engine service crafts on the carriers had become one. In response to

UTU’s application on Union Pacific, the Board referred the dispute “to a three-member Panel of

prominent labor relations professionals” (Arnold Zack, Richard Bloch, and Richard Kasher), that

rejected UTU’s application. United Transportation Union and Union Pacific Railroad Company,

27 NMB 247, 249 (2000)(Carriers’ Exhibit 99, p. 3). That panel found that locomotive engineers

check the condition of the locomotive before and after each tour of duty, control the starting, stopping, and speed of trains, checking meters and gauges to determine speed, fuel, power, and air pressure. They observe signals indicating moves of other trains, obstacles on the track, equipment malfunctions, and speed amounts. Engineers are trained as apprentices in classes and on simulators with daily tests leading to certification of those receiving 85% or more on their final exam. Pursuant to the Railway Safety Improvement Act of 1988, engineers must be federally certified, with suspension or loss of certification facing those guilty of serious rules infractions.

Id., 27 NMB at 249. It concluded that an order for a single craft or class was not justified.

There is no question that the conductors and engineers share many joint responsibilities and work together as a team in much of the operation of the train. They have interrelated functions, utilize seniority in the ebb and flow of work and have access to a single line of progression to the engineers seat.

But the evidence shows that the engineers and conductors have historically organized themselves as separate crafts and classes, with the BLE representing primarily engineers for more than a century. That separation has long recognized the statutory and training requirements for entry into the engineer craft and class and supports the conclusion that engineers have separate and distinct core duties compared to those of the conductor craft and class. Indeed, despite the mandatory progression since November 1, 1985, movement into the engineer position is not automatic, but rather dependent on carrier discretion in calling for a class, and its determination as to successful bidding as well as a completion of training and fitness

-4- to fill the engineer position. Additionally the evidence is clear that becoming an engineer requires a federal certification in order to be legally qualified to be in control of a throttle that operates the train.

Id. at 254-255. The NMB adopted the Panel’s determination. United Transportation Union and

Union Pacific Railroad Company, 27 NMB 244 (2000)(Carriers’ Exhibit 99, p. 1).

Most recently, UTU unsuccessfully sought to accomplish a craft merger on Kansas City

Southern Railway. On August 14, 2002, the NMB rejected UTU’s attempt to merge the two

separate crafts and classes. United Transportation Union and The Kansas City Southern Railway

Company, 29 NMB 410 (2002)(BLE EXHIBIT 62). Among the reasons for the Board’s ruling were

these:

Train service employees are not authorized to take over the engineer's role at any time. Even train service employees with engineer certification, qualified on the route on which they are currently operating, are not authorized to take over the engineer's role.

Id. at 426.

Although train service employees and engineers have joint responsibilities, such as the safe operation of the train, most of their duties are job specific. Simply put, train service employees instruct the engineer on where to go and how to get there while the engineer moves the train. In addition, engineers are required to obtain Carrier certification in accordance with Federal regulations.

Id. at 429 (emphasis added).

II. THERE IS A PAST PRACTICE OF ASSIGNING REMOTE CONTROLS TO ENGINEERS

The Carriers argue that “no past practice support[s] assignment of remote control to

engineers represented by the BLE.” (P. 51-52). As our Opening Submission demonstrated (p. 18-

22), this statement is wrong. Locomotive engineers control, and since the inception of distributed

-5- power always have controlled, following locomotives in a train from the lead locomotive by remote control. See also BLE EXHIBIT 63 (KCS Operating Rules re Distributed Power Operation)4. The carriers say that is different because it happens from the cab using the fixed controls in the lead locomotive. But that is a distinction without a difference. The fact is that no engineer is on the other locomotive(s) as they once were before technology allowed for remote control. The engineer’s duties and responsibilities include the operation of every locomotive on the train under his control, and they all are under his control. The only reason that another engineer(s) is not being paid for the operation of the other locomotive(s) is the Diesel Agreements. In other words, the parties negotiated how the issues raised by the new technology would be resolved.

The Canac patent explains that the microprocessor placed in the locomotive, to which the

RCO is issuing commands, is “a slave controller mounted on board the locomotive.” Carrier Exhibit

46, p. 19. That is the same concept applicable in multiple unit remote control, where the following units that the engineer is controlling remotely from the lead cab have slave controllers mounted on

4 The KCS Train Handling Rule 107 and its various subparts “presents rules, general instructions, and requirements for operating and conditioning locomotives equipped with multi- remote control sysytems [that] are referred to as distributed power.” (BLE EXHIBIT 63, pp. 157- 198). The Rule describes “two distinct distributed power remote control operating systems.” Both are Locotrol systems that are set up essentially the same way and “provide the same control of air brakes, throttle, and dynamic braking.”

An engineer controls each locomotive consist in the distributed power train from the “lead unit.” The term “remote unit” applies to the controlling locomotive unit in a remote consist. Locomotives connected through the trainlines for multiple unit service to the lead and remote unit(s) are called “trail locomotives.” p. 158. Daily inspections and locomotive air brake tests are performed by the engineers before any of these remotely-controlled units are placed in operation. Id. The Rule describes in depth the many tasks required of the engineer in performing his duties in connection with operating remote locomotive units.

-6- them. See BLE Submission at 20; Carrier Exhibit 7, p. 65.5

III. THE COMPUTER IS NOT PERFORMING THE “DUTIES AND RESPONSIBILITIES OF THE ENGINEER”, THE RCO IS.

The carriers’ argument that it is the microprocessor, not the RCO, that is responsible for

operational decision-making is belied by their response whenever an accident involving a remote

control locomotive has occurred. In every situation, the carrier has blamed the accident on the

operator. Most recently, on October 31, 2002, two freight cars derailed when they were hit by a

remote-controlled engine in BNSF’s Lincoln, Nebraska switching yard. According to a report of

the incident in the Lincoln Journal Star newspaper (BLE EXHIBIT 64):

BNSF spokesman Steve Forsberg said the minor crash was caused by operator error.... Forsberg said such collisions routinely happen with engineers in the cab. In this case, a remote operator chose to move the switch engine closer to a receiving

5 Remote-Control Units

Where heavy trains must be moved up steep grades, additional tractive force must come from somewhere back in the train, if the total required is beyond coupler strength limits. On fairly short grades, helper locomotives run by another engineman are used - usually on the rear end to minimize time lost switching them in and out of the consist. Where there are several major grades scattered throughout a run, it is more economical to use remote-control units located at a point in the train where their tractive force will result in the smoothest handling (usually about two-thirds of the way back). These “slave” units are controlled by the engineman in the lead unit by radio control signals somewhat similar to those transmitted by jumper cable to MU’ed trailing units.

The receiver-decoder for these signals is located in one of the slave units (which in turn controls the units MU’ed with it), or in a separate car which can be used with any locomotives. A digital code is used to ensure that the slave listens only to its master’s voice, and the slave units automatically go to “idle” if radio communication is not verified every few seconds.

The Railroad, What It Is, What It Does, p. 65. Carrier Exhibit 7.

-7- track, thinking he could beat the local train or stop before it departed. The crash did a few thousand dollars in damage to the switch locomotive and a few thousand dollars to the empty cargo cars, officials said.

[BLE spokesman Roy] Helm said BNSF was lucky the cars were empty. A similar wreck involving a hazardous materials car could’ve meant environmental damage that might have been avoided if the locomotive had been steered by an engineer. Forsberg disagreed: “The technology did work. It was operator error.”

The next day, BNSF distributed a Yard Crew Job Safety Briefing to employees at Galesburg.

BLE EXHIBIT 65. The carrier described the Lincoln accident and a similar accident involving a conventional operation at Bakersfield, California on October 15, 2002:

Both of these incidents resulted in significant dollar damage as well as de- certification of the employees controlling the movements per CFR Part 240, account failure to stop within half the range of vision resulting in damages exceeding reportability. Both were the result of failing to control the movement and understanding what is required to stop the equipment based on tonnage, available brakes and conditions.

Id. Ex. A.

The carriers have argued to this Board that the RCOs are not doing engineers’ work and that the microprocessors have eliminated the need for the operating employee to know anything about locomotive braking, track conditions, tonnage, and train handling. Were that argument to be credible, BNSF would not have chided the RCO at Lincoln for not “understanding what is required to stop the equipment based on tonnage, available brakes and conditions.” Were that argument to be credible, BNSF would not have reminded the Galesburg RCOs, by handing out to them to review, a written job briefing about four essential operating rules they are required to follow:

GCOR 6.22 Maintaining Control of Train or Engine Crewmembers must consider train or engine speed, grade conditions, and air gauge indications to determine that the train or engine is being handled safely and is under control. If necessary, take immediate action to bring the train or engine under control.

-8- GCOR 6.28 Movement on Other than Main Track Except when moving on a main track or on a track where a block system is in effect, trains or engines must move at a speed that allows them to stop within half the range of vision short of:

• Train • Engine • Railroad car • Men or equipment fouling the track • Stop signal or ! Derail or switch lined improperly

GCOR 7.11 Charging Necessary Air Brakes Do not handle cars without charging the air brake system, unless the cars can be handled safely and stopped within the required distance. If necessary, couple the air hoses and charge the brake systems on a sufficient number of cars to control movement.

AB&TH 104.9 Switching Movements 1. When starting or stopping switching movements, gradually stretch or bunch slack. 2. When using multiple locomotives, limit buff and draft forces. 3. Under normal conditions, make switching movements without using the automatic air brake system. 4. If necessary, cut in sufficient freight car air brakes to control switching movements.

Id. Emphasis added. Finally, were this argument to be credible, the training that RCOs are given

would not need to include, as it does, instruction on train handling techniques involving handling

slack, drag, etc. See BLE EXHIBITS 30-34. The carriers’ argument is not credible in light of these

undisputed facts.

On KCS, a remote-controlled train ran through a signal on April 22, 2002 resulting in the

RCO being charged with failing to control the train. A similar incident occurred on October 31,

2002, when a remote-controlled train ran through an interlocking and two red boards, destroying an

interlocking switch in the process. The RCO in control of that train also was charged with failure

to control the movement. The first RCO was suspended and had his certification revoked for a

-9- month. The second RCO is awaiting disposition of the charge. Declaration of T.R. Stoltz (BLE

EXHIBIT 66). These charges demonstrate the obvious - that it is the RCO, not the

OCU/microprocessor technology that controls the movement.

These incidents expose the microprocessor as nothing more than a speed maintainer. It does not know whether it is going up an incline or down a decline, whether the engine is light or with heavy cars. It does not resolve slack because its only consideration is speed. The operating employee using the OCU still must determine the correct speed at which to move the cuts of cars.

See Declaration of RCO John Smith, ¶ 6 (Carriers’ Exhibit 68)(“I simply set a speed and the computer automatically goes to that speed and maintains it.”). And, as evident from what happened at Lincoln, that decision involves considering grade, time, distance, and weight. The RCO still must decide how much in advance of the destination to initiate braking to bring the movement to a stop or to bring about a safe coupling. All of these operating decisions have always been the duty and responsibility of the locomotive engineer.

The BNSF report about the Lincoln accident also confirms the extent of the discretion that the RCO has in using the OCU to control the movement:

Preliminary investigation reveals that the RCO began movement from approximately 15 car lengths from the clearance point of the deaprting train by placing the speed control on the Operator Control Unit (OCU) to 10 MPH. After moving about eight car lengths, the operator selected “COAST w/ Brake” and continued another two car lengths before selecting STOP. The RCO then realized that the movement would not get stopped in the clear and placed the brake control into EMERGENCY. At the same time his helper with the other OCU also placed the unit into EMERGENCY. The locomotive impacted the side of the departing local at approximately 2 mph, derailing three cars. The event recorder indicated that the maximum speed reached during this movement was 7 mph.

-10- BLE EXHIBIT 65, Ex. A. This reveals, exactly as BLE explained in its Opening Submission6, that

the RCO is not limited to the speed settings on the OCU. Rather, he can manipulate the knobs to

attain speeds between the preset functions. In Lincoln, while the OCU was set to 10 MPH to get the

movement going, the movement never attained that speed. By going to COAST w/ Brake, the RCO

was able to achieve a speed slower than 10 mph but faster than 4 mph without actually setting the

knob at 7 mph.

Union Pacific has confirmed that knowledge of tonnage is essential to the safe performance

of the RCOs job. On September 12, 2002, the carrier issued instruction to its RCOs that, even where the carrier has transponders built into the tracks in a remote control zone, “[t]he Remote Control

Operator (RCO) should not use the [electronic detection protection] as the primary stop of movements. It is the responsibility of the RCO operator to know their braking locomotives and tons per braking locomotive.” (BLE EXHIBIT 67) Further, the instructions explain:

The RCO does have the ability to override the EDP system if necessary by pushing the “YES” and “NO” buttons simultaneously for three seconds. If the EDP system is overridden the movement is only controlled by the RCO.

Id.

Again, whether or not engineers perform the duties of ground service personnel that the RCO

6 “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.” BLE Opening Submission at 44.

-11- has been assigned is not germane. Whether the RCOs perform the duties of engineers is.

Recent testimony by Edward R. Hamberger, President and Chief Executive Officer of the

Association of American Railroads at a Hearing on Railroad Safety conducted by the U.S. Senate

Committee on Commerce, Science and Transportation, Subcommittee on Surface Transportation and

Merchant Marine also confirms that the RCO, not the computer, is in control of the train. BLE

EXHIBIT 68. Hamberger described for the senators how locomotive remote control technology

works: “Portable locomotive control technology (PLCT) ... allows railroad personnel on the ground

to operate and control locomotives through the use of a small control device that transmits signals

to a microprocessor on board a locomotive”. Id. at 11 He explained that this technology “eliminates

the need for communication between employees on the ground and operators on a train [because]

the ground employee who would have been giving signals to the train employee is the one using

PLCT to operate the train.” Id.

The carriers maintain that they have breached no rule because the RCO does not manipulate

the locomotive controls directly. By replicating those controls in a portable device and handing it

to an RCO, they believe they can properly evade the requirements of the BLE agreements. What they cannot evade is the simple fact that locomotives start, stop, and change speeds only when the

employee operating the device selects the speed at which the locomotive will move and otherwise

utilizes the switches on the device to control the starting and stopping of the train. That is exactly

what the locomotive does when it is under the control of the engineer in the cab. As is evidenced

by the recent dispute before Judge Gottschall, the carriers are even so bold as to maintain that the

RCO can be in the cab to perform these functions without violating the BLE agreements. See

-12- Carriers’ Submission at 36; UTU Submission at 16-177; Declaration of John LaCrosse, ¶ 3 (BLE

EXHIBIT 69).

The carriers want RCOs to control locomotive movements from the engineer’s seat because

that is “the most safe and efficient location to direct the movement of the train” and “provides the

best view of the head end of the movement.” Carriers’ Exhibit 69. This is not surprising; that is why

the locomotive engineer sat there when he controlled the locomotive. That also is why, until

directed otherwise pursuant to the Court Order, RCOs at BNSF’s Grand Forks Yard sat in the cab

when moving large cuts of cars. They considered it unsafe to control the movement of cuts of 20

or more cars, which they do there on a daily basis, from the ground because the RCO in front of the

move is not able to see far enough ahead of the locomotive to protect the move. LaCrosse

Declaration ¶ 3 (BLE EXHIBIT 69).

This need to operate from the cab is but another indication that when controlling a movement, the RCO is being called upon to act like an engineer. Indeed, when RCOs are operating from inside the cab, they are sitting within arm’s length of the controls that have been replicated on the beltpack unit. They are taking signals from the ground and then implementing those signals the same way an engineer did. They are not using the “pitch and catch” feature in this operation; they

7 One of the railroads’ lawyers in the court proceeding acknowledged the significant distinction between operating from the ground and doing the same thing from the cab. As the carriers note in their Submission here (p.33), there was disagreement before the court as to how far the injunction should extend. When the BLE expressed concern that under the railroads’ proposed language, “someone who has this remote control technology... might even be standing in the cab of the locomotive to take it out several miles to a customer,” the carriers’ attorney responded “what we’re talking about is guys on the ground having these trains move. You’re not going to be on the ground and have it move five miles. Essentially what he’s talking about is another engineer.” Transcript of January 16, 2002 hearing, p. 11 (emphasis added)(BLE EXHIBIT 70).

-13- are looking ahead of the locomotive on their own, just like the engineer did.

When working from the locomotive, the RCO has greater flexibility and does things as an

engineer that cannot be visualized, let alone be done, from the ground. He is not merely switching or hooking up one or two cars to the locomotive. Rather, RCOs operating from the cab can and do take whole cuts of cars, as many as 50, and move them considerable distances measured in miles, not feet. See BLE EXHIBIT 49, pp. 2-4, 10, 18, 22, 52. RCOs operating from the cab take the

locomotive and its train over public crossings, interchanges and other trackage exposed to the

general public. When operating from the engineer’s seat, the RCO looks like and works like an

engineer. The only difference is that he performs these duties and responsibilities using a portable

set of controls next to a fixed set that he could, although he is told not to, touch. RCOs from every

carrier confirm that when they are using the belt pack, they are performing the same duties and

responsibilities that engineers formerly did. BLE EXHIBIT 49.

Moreover, they are not limited to the specific miles-per-hour selections on the beltpack unit.

If they want the locomotive to move at speeds between the specific mph settings they can, and do,

manipulate the lever between a speed setting and the “coast” setting to accomplish that. See

Declaration of RCO George Craig Schaffer, ¶ 4 (BLE EXHIBIT 49, p. 52). Similarly, in coupling

operations, RCOs “using the OCU can override the independent brake to slow the locomotive down

below the preset coupling speed [in order] to “inch in” using the belt pack in the same way the

engineer does using the conventional controls.” Declaration of John LaCrosse, ¶ 6 (BLE EXHIBIT

69).

Every BLE agreement covers the operation of locomotives in transit. While it is true that

the rules do not specify the precise details of locomotive operation placed under the engineer’s

-14- control (i.e., the steps an engineer takes to place a locomotive in motion or to bring it to a halt), there

never has been any reason to do so. For time immemorial, the locomotive engineer has been the

employee responsible for operating the locomotive, whatever the means of control. The engineer

has engaged the throttle and the brakes, causing the train to start, speed up, slow down, or stop. The

engineer has controlled the whistle, horn, bell and headlights. The controls are, and always have been, in the hands of the locomotive engineer. That has been the contract between the parties. What

the carriers are doing is unilaterally changing that contract to transfer control of locomotive

movement to the hands of non-engineers who they say spend most of their time on the ground but who the facts reveal they want to be in the cab whenever movement is occurring. They have no arbitral precedent whatsoever to support this bold extension of their argument.

The engineer does not physically move the pieces of the modern locomotive to get the locomotive to move; he moves levers, switches and buttons that send signals via computer to those

parts to put them in motion. The carriers have not changed the moving parts of the locomotive that

the engineer always has controlled; they have pinned the levers, switches and buttons on the cab

stand, as required by the FRA Advisory, when they replaced them with a device that performs the

same functions - sending instructions to the locomotive engine to effectuate movements. The

configuration of the locomotive itself has not changed; the control system has been altered.

Movements that once were under the control of engineers have been placed under the control

of UTU-represented employees. The locomotive could not physically move without the physical

manipulation of cabstand controls by the engineer; now the equivalent of those controls has been

handed to the RCO. Rather than the engineer, the RCO now commands the locomotive consist to

move in the same manner as would the engineer, if he were still there. Prior to this dispute, the

-15- ground personnel did not control locomotive movement at all; they simply called up to the engineer

when the train was ready to move and told the engineer where to take it; the engineer made the

movement happen or cease. Now, when he is using the OCU, the RCO is the de facto engineer.8

The rules in the BLE agreements require that preference be given to locomotive engineers

“for positions as engineers or motormen.” These rules obviously cannot be overcome by the simple

renaming of what should be an engineer’s position to something else, such as an RCO position. This

would amount to a subterfuge. Were the carriers able to defeat the rule by the expedient of calling

the positions something other than what they really are, the rule would be meaningless.

Similarly, contrary to the carriers’ argument, it is not just the name of the position that the

BLE rule protects. It is the work that the position performs as well. This is how the rule always has

been applied. Whenever carriers have assigned work to other crafts that they should have assigned

to locomotive engineers, these rules have provided the basis for awards resolving the resulting disputes in BLE’s favor. See, e.g., BLE EXHIBITS 15-23, 55-61. Simply put, if a locomotive is

being used to switch cars or in any type of train service, the work of operating the locomotive falls

8 Public Law Board No. 5252 Award No. 1 (UTU and Norfolk Southern)(Carrier Exhibit 40), and Public Law Board 964 Award No. 855 (UTU and Norfolk Southern)(Carrier Exhibit 80) are readily distinguishable. Both of those awards denied claims by yardmasters for additional pay for doing work that was formerly done by hump conductors whose positions were eliminated when a computer-controlled car retarding system replaced a manually controlled one. In those cases, the PLBs rejected the claims because the yardmaster claimants continued to perform the same tasks in the same way as they had done prior to the installation of the new system. Here that is not the case. Here the ground personnel’s tasks have changed. They have training unlike what they ever before received. They have taken on new assignments as RCOs and are using equipment that is entirely new to them. They are no longer simply calling out or waving signals; now they are actually engaging controls that make the locomotive move and stop. And they are subject to a raft of new requirements imposed by federal regulation and carrier operating rules. Plainly the disputes underlying the awards the carriers rely upon were quite different and the holdings in those awards are not applicable here.

-16- within the engineer’s exclusive jurisdiction.

Most recently, FRA Associate Administrator for Safety George Gavalla conducted a conference call with the Association of American Railroads and five of the carriers in this dispute

“to address FRA concerns about the implementation of remote control locomotive (RCL) operations.

See BLE EXHIBIT 71. FRA advised the carriers that “[e]xcept for light freight movements within the immediate vicinity of yard areas, [it] does not believe that the current state of RCL technology or the current state of RCL operator training programs are suitable to support RCL operations on main tracks [like] intra-yard transfer movements; local freight service; relieving outlawed trains, etc.” The FRA found that “RCL operations are currently poorly suited for main line operations.”

Plainly, the FRA’s concern about the adequacy of an RCO’s training when it comes to operating in these areas undermines the carriers’ argument that an RCO need not know how to account for track conditions, tonnage, etc., in order to perform his job. While the FRA may be satisfied that RCO training is sufficient for very limited yard operations, clearly the FRA believes that the level of training an RCO requires must increase with the complexity of the track he is asked to traverse. The carriers’ argument that the abbreviated training they give the RCO dictates a finding that the RCO is not doing engineers’ work is not supported by the FRA’s actions.

Plainly, the FRA has permitted the abbreviated training because of the abbreviated area in which it is allowing him to operate. An engineer is trained to be available to work both within and beyond that limited area.9 The carriers want this Board to sanction their partitioning the geography

9 KCS acknowledged this when it submitted its RCO training program to the FRA for approval. Its description of the “on-the-job or field training phase” for train service engineers, remote control operators, and yard engineers is the same: they “will be trained...regarding all aspects of physical characteristics, which they can reasonably expect to traverse in their course (continued...)

-17- of engineers’ work by allowing them to train RCOs to do the work only in part of it. That is a gerrymandering of the agreement that can only properly be accomplished at the bargaining table.

The carrier’s reliance on BNSF’s isolated use of a remote-controlled modified diesel locomotive used as a car mover in shop areas at Havelock, Nebraska is not convincing. See

Carriers’ Submission at 24, 52. That dispute is addressed in the Separate Submission of BLE’s

General Committee of Adjustment on BNSF, Volume 2A, pp.4-11. The arbitration award in that dispute held for the carrier on procedural grounds. However, in arguing against BLE’s claim, BN maintained that the locomotive was to be considered a self-propelled vehicle over which BLE had no jurisdiction because it was utilized inside the shop area. Accepting the carrier’s position means that if the remote-controlled locomotive had been operated outside the shop area, it would have fallen under BLE’s jurisdiction. Because the remote controlled locomotives in the current dispute all are utilized to switch cars, the 1964 National Agreement requires that they be operated only by engineers. Id. at 5-6. This is another reason to reject the carriers’ argument and find that what they have done violates their agreements with BLE.

One may argue that the new technology facilitates the operation of the locomotive or that it makes the job of operating it less difficult. But the duties and responsibilities of the job remain.10

9(...continued) of duty.” Carriers’ Exhibit 31, pp. 10-11.

10 The carriers state at the outset (p. 9) that “whether remote control is safe...is not before this Board.” Then they spend considerable space (pp. 28-30) arguing that it is. We agree that the wisdom behind implementing remote control operations is not before this Board. Likewise, the FRA has taken a “hands-off” approach insofar as the carriers’ contractual obligations are concerned. Carrier arguments (p. 30) notwithstanding, the FRA has not said that RCO work is or is not the same as engineer’s work. FRA’s concern is that anyone who operates a locomotive, other than in servicing areas, be qualified to do so. While it is true that the FRA approved the (continued...)

-18- The microprocessor is not choosing the speed, the RCO is. The microprocessor is not sounding the

horn or ringing the bell, the RCO is. The microprocessor is not protecting the point. The RCO is.

All the microprocessor is doing is maintaining the speed. The RCO with the OCU is doing

everything else that the engineer used to do.

The only real change wrought by the implementation of remote control is the point from

which the locomotive is operated. As arbitrator Eckehard Muessig has held:

“[A]s a general notion, modification in the methodology or procedure used to accomplish a particular task does not of itself remove the work of the class so long as the purpose and substance of the work is retained.”

Award No. 9 of Public Law Board No. 3751 (TCU and Norfolk Southern Corporation)(Muessig

1989)(Carrier’s Exhibit 136), p. 2. The purpose and substance of the work has not been changed,

and the work should remain under the BLE’s jurisdiction.

10(...continued) carriers’ RCO training programs, FRA understood that RCOs would be operating locomotives in more confined areas and at slower speeds than exist on the carriers’ main lines. Nevertheless, the training programs FRA approved contain numerous instructional elements (such as locomotive operating rules, air brake rules, train handling procedures, etc.; see BLE Submission at 25-26) that parallel engineer training and that RCOs must know before being allowed to operate a locomotive. That full engineer training is more comprehensive merely reflects the fact that engineers are not trained piecemeal; they are trained for both yard and road work at the same time. Because they may be called upon to operate more kinds of locomotives over more varying topography and at greater speeds than what is found in and around terminals, engineers learn these things in their initial training, even though they may never work outside a yard. The largest part of the time an engineer spends training before being certified involves learning how to operate different kinds of locomotives over different kinds of terrain. Were he to be limited to the topography, types of locomotives, and speed restrictions used in yard switching operations, his training time would be far more abbreviated because he would only be called upon to perform a less “demanding class or type of service” under FRA regulations. The shopcraft award that the carriers rely upon to support their “difference in training” argument (p. 43) has no bearing here. The contractual language that allows the assignment across craft lines of “simple tasks” in the shops that require “neither special training nor special tools” is wholly inapposite.

-19- IV. THE CARRIERS’ RELIANCE ON THE INCIDENTAL WORK RULE IS MISPLACED.

In our Opening Submission (pp. 27-40), we laid out the history behind the incidental work rule and showed that the OCU is not a “communication device” within the meaning of that rule.

The rule, again, provides that ground personnel may be required to “use communication devices”

“in connection with their own assignments without additional compensation.” (Emphasis added).11

None of the carriers’ rationales for a finding that the OCU is a communication device within the meaning of the rule stand up. First, the purpose of the OCU goes well beyond what was contemplated by the incidental work rule. It is a quantum leap from the substitution of fax machines and computers for the mundane submission of reports to the remote transmission of commands to operate a locomotive. If this were just a “communication device,” the carriers would not have had to file with the FRA training programs to enable RCOs to become federally certified in order to use it.

If this were just a “communication device,” why would the carriers find it necessary to create a wholly new job classification to use it? According to the carriers, the incidental work rule already allows them to assign use of such devices to ground personnel, and at no extra cost! We submit they did it because they recognized that federal safety laws would not allow them to assign the work to the employees holding traditional UTU-represented jobs because those employees simply are not qualified to operate a locomotive. And that is what the OCU operator does. They know it, the FRA

11 Of course, the carriers have agreed to pay “additional compensation” to those who operate the OCUs -- 46 minutes additional pay per tour of duty for those who do and six years protection for those UTU-represented employees who don’t but are adversely affected by the assignments to those who do.

-20- knows it, and this Board knows it.12

The incidental work rule went through full bargaining and arbitration with BLE before it

became part of BLE’s agreements. There is no mutually agreed upon bargaining history for this provision, nor is there any set of Questions and Answers setting forth the expansive definition the carriers now propose. Instead, the carriers offer a lone self-serving statement from a carrier official

(Kenneth Peifer) to the effect that the rule was intended to mean what he now says it means. He doesn’t say he, or any carrier negotiator, ever communicated that intent to the union such that an understanding developed as to the meaning he ascribes to the rule; indeed, Peifer admits that the remote control technology they are implementing now was not even in place in 1984 when the carriers served their Section 6 notices that first proposed the new rule. See Simmerman Declaration,

¶ 12 (BLE EXHIBIT 72). In this light, we submit that Mr. Peifer’s assertion that the rule means what he says is deserving of no credit.

The fact that the OCU transmits the RCO’s commands over public airwaves regulated by the

FCC does not make the OCU a “communication device as contemplated by the rule. The FCC regulates virtually everything that emits radio waves. FCC approval of such instruments does not prove they all are “communication devices” covered by the rule. The OCU is a portable control panel whose operating commands travel in public airwaves; that is why its use is subject to FCC

12 This is not like the other situations the carriers point to (Carriers’ submission at 55- 60), where a new piece of equipment was introduced into the workplace so that an employee could continue to accomplish the same task by simply using some other tool to do it. The belt pack dramatically alters the ground person’s job and adds significantly to his responsibilities. The RCO is in actual physical control of a moving locomotive. He has become solely responsible for the safe operation of the locomotive. That is why he is subject to FRA certification requirements and a new job with new training had to be created. That is why the carriers had to agree to pay more than a ground employee otherwise would get. And that is why the carriers needed a new agreement with UTU to cover the operation.

-21- approval. The carriers’ simplistic assertion that FCC regulation makes a difference here also must

be rejected. The carriers wholly ignore Side Letter # 9 to the 1985 UTU National Agreement.

That letter of understanding, as we explained in our Opening Submission (p.38-39), restricts the

carriers’ assignment of incidental work to the RCOs. Taken together, the agreement and the side

letter permit the carriers to have UTU-represented employees “use communication devices” without

additional compensation, provided that the use of such devices does not infringe upon the work

rights established by the locomotive engineers. See March 20, 1987 Award of Joint Interpretation

Committee, Article XVI, National Mediation Agreement of October 31, 1985 (UTU and NCCC)

(BLE EXHIBIT 73). In order to prevail on their interpretation, the carriers and UTU here must

prove both (1) that the OCUs are “communication devices,” and (2) that using them to operate

locomotives does not infringe upon the BLE-represented engineers’ work rights. Our opening

Submission showed that they could not prove either of these propositions; their opening

Submissions establish that they have not done so. As arbitrator John LaRocco held in interpreting

the same language in BLE’s 1986 National Agreement, “the Carrier may not manipulate its new

found rights in Article VIII, Section 3 to dilute or eliminate the work rights of other crafts.” Award

No. 1 of Public Law Board No. 5220 (BLE and Burlington Northern) (LaRocco) (BLE EXHIBIT

47), p. 13. Because the RCOs use of the OCU, even if it is considered a “communications device,” clearly infringes on the engineers’ rights to control the locomotive, the incidental work rule cannot justify what the carriers have done.

In addition to its specific operating levers and switches, the OCU has “a reset safety control that ensures alertness.” Carriers’ Exhibits 45, p. 4, ¶ 12; , 47 [CSXT Manual - Instructor’s Version,

p. 5, 28-29]; 50, p. 5, 8, 10. This “vigilance” feature is exactly the same thing as the Reset button

-22- (“alerter”) on the conventional stand. Carriers’ Exhibit 25. Both must be pushed by the operator of the locomotive periodically to ensure continued operation. Indeed, FRA’s Safety Advisory specifically recommends that every OCU possess this feature. BLE EXHIBIT 46, p. 6, para. 9. As

RCO foreman in charge at BNSF’s Grand Forks Yard John LaCrosse explains,

the OCU also replicates the feature built into conventional locomotive controls that automatically will stop the locomotive in the event it senses something wrong when there is not activity at the controls. Both the OCU and the conventional control stand are configured to flash a light and sound a beeper in the event of inactivity of more than 50 seconds. On the stand inside a locomotive cab this feature is called an “alerter;” it flashes a light and emits a slow beep that increases with speed until the engineer responds by hitting the alerter button, hitting the horn or lights, or changing the throttle. If the engineer does not respond, the alerter activates what is called a “penalty application” of the brakes and the locomotive is brought to an immediate stop. On the OCU, the automatic mechanism is called a “reset” or “time out” feature; after 50 seconds of inactivity the beeper starts to sound; if the RCO does not hit or move any of the switches or levers within another 10 seconds, the unit applies what is called a “full service application” of the brake on the locomotive to bring it to a stop. In effect, the “alerter” on the locomotive and the “reset” or “time-out” on the OCU do exactly the same thing - they stop the locomotive automatically in the event of engineer/operator inactivity.

BLE EXHIBIT 69, ¶ 5. Mere communication devices don’t need such features.

Finally, to remove any last vestige of doubt that the OCU is a set of controls, not a

“communication device,” one only has to look at how Canadian National described the OCU in the proceeding before Arbitrator Picher. CN said that the ground employee no longer had to communicate with anyone because the belt pack “directly controls the locomotive itself.” Statement of Canadian National Railway Company, July 1993, Page 24 (BLE EXHIBIT 74)(Emphasis added).

-23- V. THE REAL SIGNIFICANCE OF FRA’S ENGINEER CERTIFICATION REGULATIONS TO REMOTE CONTROL OPERATIONS

FRA promulgated its certification requirements “to ensure that only qualified persons operate a locomotive or train.” 49 CFR § 240.1(a). The regulations “prescribe[] minimum Federal safety standards for the eligibility, training, testing, certification and monitoring of all locomotive engineers to whom it applies.” 49 CFR § 240.1(b). Locomotive engineers must be certified pursuant to these federal rules or they are not permitted to move locomotives in transit, “regardless of whether they are coupled to other rolling equipment.” 49 CFR § 240.7. Trainmen, brakemen, conductors, and other ground personnel who merely convey instructions or directions to the locomotive engineers regarding when and where to move trains to accomplish the hooking up and setting out of cars are not required to be certified.

When FRA issued its recommended minimal guidelines for the safe operation of remote control locomotives, it explained that the certification requirements applicable to locomotive operation applied to remotely controlled locomotives as well:

[A]nyone who operates a locomotive, regardless of the means used, must be properly trained and certified. The introduction of remote control operations is a significant departure from traditional on-board locomotive operations. If a railroad elects to conduct RCL operations, its locomotive engineer certification program would have to be modified to outline the training that will be required for this type of operation. This would constitute a material modification of the program requiring that the program be submitted to FRA for approval....

BLE EXHIBIT 46. Emphasis added. The reason the FRA requires the training the RCO is undergoing is that the RCO is becoming responsible for the train movement itself.13 Previously,

13 The FRA did not contemplate that RCOs would be operating locomotives from “on board” the locomotive. The Safety Advisory itself presumes the RCOs will be on the ground, not in the cab: “The term ‘remotely controlled locomotives’ or ‘remote control locomotives’ (continued...)

-24- when he was called a conductor or switchman, the RCO did not have to be certified because he did not operate a train. By requiring a new training program and a certification, the FRA recognizes that now he does.

The carriers rely on FRA’s observation that “[t]he introduction of remote control operations is a significant departure from traditional on-board locomotive operations” as if FRA was saying that someone other than locomotive engineers could or should be assigned remote control responsibilities. It was not. The Safety Advisory was a tacit recognition whoever is operating locomotives via remote controls is performing a locomotive engineer’s duties and responsibilities, and to the extent he is, he must be adequately trained to handle the duties and responsibilities associated with that level of service, i.e., the proper control of locomotive and train movements required of him. Moreover, the Safety Advisory reinforced the fact that there would be consequences under the Engineer Certification Regulations if violations of operating rules and practices were attributed to an RCO. This Board can infer from the extensive Safety Advisory that

FRA has issued that far more is involved by remote control than the introduction of a substitute for hand or verbal communication.

In 1997, the carriers agreed to compensate locomotive engineers for their federal certification. BLE EXHIBIT 75. At that time, the parties acknowledged that all locomotive engineers under BLE agreements would receive certification pay. There clearly was a recognition by the parties that these employees were the persons who would be assigned to operate all

13(...continued) refers to a locomotive which, through use of a radio transmitter and receiver system, can be operated by a person not physically located at the controls within the confines of the locomotive cab.” BLE EXHIBIT 46, p. 1).

-25- locomotives “in the general system of rail transportation” on the properties of the carriers party to the national agreement. And they were. For the carriers to now maintain that the operation of these same locomotives was not exclusive to these engineers is disingenuous, at the very least.

VI. THE CARRIERS’ “RESIDUAL WORK” ARGUMENT HAS NO MERIT

The Carriers also argue that because technology has eliminated the engineer’s core responsibilities, they can assign away all of the engineer’s other responsibilities as well. Carrier

Submission at 58. Our opening Submission explains that in fact the technology has not eliminated the engineer’s duties and responsibilities. The carriers want this Board to blur the distinction between the engineer’s duties and responsibilities and the skill required to perform those duties and responsibilities. According to them, the remote control technology makes it easier to control locomotive movements. Even if that is the case, it does not eliminate the duties and responsibilities the engineer always has borne: starting and stopping the locomotive, setting the speed, effectuating the movement of the locomotive, sounding the horn, whistle, and bell, controlling the lights, etc.

The question for the Board is not whether the tools or skills necessary to perform the engineer’s duties and responsibilities have changed. The issue is whether the duties and responsibilities still exist and are being performed by someone else. We submit that they do and they are.

The carriers belittle the RCO’s job by harping on how the portable controls he is handed simplify maintaining speed. They want this Board to ignore what he actually must know to operate the locomotive. Carriers’ Submission p. 43. Just like an engineer, he has to know:

• the carrier’s operating rules • the carrier’s train handling rules • the carrier’s air brake rules • how to start an engine

-26- • how to shut an engine down • the optimal speed at which to operate to safely to complete the switching function • how to initiate the movement • how to conduct air brake tests • how to set and release air brakes • when to apply brakes • when and how to speed up • when and how to slow down • when and how to stop the locomotive • when and how to override the automatic settings on the OCU • how to protect the movement • when and how to sound the horn • when and how to sound the bell • how to reverse directions • how to account for slack going down an incline • how to account for stretch when going up an incline or around a curve • how to charge a cut of cars • the effect of vertical, lateral, buff (push), and draft (pull) forces on handling a cut of cars • how to respond to a ground relay fault • how to correct a governor shutdown • how to correct a hot engine • how to correct a low voltage circuit • rules regarding track authorities • how to conduct a locomotive daily inspection and fill out required inspection reports • how to nullify operating controls on the control stand in the locomotive • how to restore operating controls on the control stand in the locomotive • how and when to apply sand

See also Statement of Dennis Pierce (BLE EXHIBIT 45); Carriers’ remote control training/operating materials (BLE EXHIBITS 30-34); NS Separate Property Submission, BLE Vol.

2C, p. 12-14. The question is not whether these tasks are hard or simple. The question is whether they are duties and responsibilities that belong to the engineer, and they clearly are.

Beyond that, the RCO training manuals evidence not that the engineer’s job has been eliminated, but that in fact the carriers have tried to balkanize it to justify their work assignments.

The manuals reveal that RCOs must be taught about all of the operating matters listed above. The carriers’ argument that they can accomplish this training in less time than it takes to train a

-27- conventional locomotive engineer is of no moment when one considers where they initially told the

FRA the RCOs would go. Now it is clear that the carriers’ designs are far more aggressive. As they explain in their opening filings, if this Board allows, they intend to assign RCOs to do far more than simple ground switching. This is not the kind of work that other boards have considered “residual.”

VII. THE DIESEL AGREEMENTS ARE MANNING AGREEMENTS.

In our Opening Submission (p. 6-9), BLE set forth the history and provisions of the 1944 and

1945 national Diesel Agreements, by which all of the party carriers are bound. In their Submission, the carriers assert that there are no manning agreements in place that require them to employ engineers on locomotives that are operated by remote control. That simply is not the case.

There can be no doubt that the Diesel Agreements flowed from a manning dispute. The

Diesel Board specifically described its “Findings...With Respect to Manning Diesel-Electric and

Electric Locomotives.” BLE EXHIBIT 9, p. 53. The so-called Diesel Question was whether the engine crew should consist of one engineer and two firemen, or two engineers and one firemen, on every locomotive. The conclusion of the PEB that the carriers should not have to add an additional, second engineer, confirmed that every crew would have one engineer and that engineer’s duties and responsibilities would not be assigned to anyone else. The Board explained:

In light of all the facts of the case, it is the board’s conclusion that when an additional operating man is placed on a Diesel locomotive he should be taken from the ranks of the firemen. [fn. omitted].

The board believes that this decision is in keeping with the traditional demarcation between the duties of the engineer and those of the fireman. Since the early days of railroading the engine crew has consisted of an engineer, responsible for the operation of the locomotive, and a fireman who, under the jurisdiction of the engineer, has been responsible for the production of power. When not so engaged, he has assisted the engineer in the observance and calling of signals. When in the

-28- past a third man has been required, as in the hand-firing of large steam locomotives, a second or assistant fireman has been used.

The Diesel Agreement of 1937 and operating rules since that date recognize this traditional division of duties and responsibilities....The engineer is in command of the operation of the locomotive and the fireman is under his jurisdiction and general supervision.

Id. at 54-55.

It stated its Recommendation “relative to the manning of Diesel locomotives” as follows:

1. That on multiple-unit Diesel-electric locomotives on high-speed, streamlined, or main-line through passenger trains, two men should be in the cab at all times when the train is in motion. If compliance with this recommendation requires the services of an extra man in the engine room to perform the work customarily done by firemen (helpers), he shall be taken from the ranks of the firemen. 2. That an additional man is not need on Diesel locomotives engaged in yard service nor in local passenger or freight service; nor in multiple-unit straight electric service. 3. That an additional man is not needed on multiple-unit Diesel locomotives engaged in through freight service, but that if a carrier finds it necessary to add a man to perform the work customarily performed by firemen (helpers), such man shall be taken from the ranks of the firemen....

Id. at 63.14

VIII. BLE’S SECTION 6 NOTICES DO NOT LEAD TO A CONTRARY CONCLUSION.

The carriers’s contention (Carrier Brief at 63-66) that, by serving Section 6 Notices that addressed the subject of remote control locomotives, the BLE has somehow “conceded” that current agreement rules do not protect the engineers’ exclusive right to operate those locomotives is, quite simply, groundless. The BLE served these notices for the sole purpose of clarifying what it already understood to be true: that the existing agreement rules governing engineers’ work guarantee

14 As shown in the Separate Property Submissions, BLE General Committees on some properties confirmed this in later agreements.

-29- engineers the exclusive right to operate locomotives without regard to the form of control utilized.

And arbitrators have long recognized that “a change proposed for the purpose of clarification does

not constitute an admission that the proponent does not, under the existing language, have the right

set forth in the proposal.” United Can Co., 102 LA 422, 424 (Randall 1993)(BLE EXHIBIT 76).

Clarification of the existing agreement rules was made necessary in the 1980s and 1990s by a number of specific occurrences. First and foremost among these was UTU’s attempt to expand its jurisdiction by serving Section 6 Notices on the carriers that sought to establish a rule in the UTU

agreement that would give ground service employees represented by UTU the right to operate

remote control locomotives. Simmerman Declaration ¶ 4 (BLE EXHIBIT 72). The Notice that

UTU served in 1984 stated in pertinent part:

Item 18 - Remote Control Locomotives

Effective July 1, 1984, establish a rule to provide that:

Train and/or yard crews, regardless of size or consist, shall not be required to work with a remote control locomotive and/or any other type of remote control motive power capable of moving, switching or transferring rail cars, to be operated or controlled by anyone other than a member of that train or yard ground crew.

Id. Ex. A. UTU again served Section 6 Notices seeking the right to operate remote control

locomotives in 1995 and 1999. Id. at ¶ 11, Exs. B and C. BLE Director of Research Dennis

Simmerman, who has been actively involved in bargaining with these carriers over the last two

decades, has explained that BLE has always understood that the national agreements between BLE

and the carriers, as well as local agreements and practices in force at various properties across the

country, recognize the exclusive right of engineers to operate locomotives in the transportation of

freight and the movement of cars, regardless of what appurtenances may be added to them to

enhance or facilitate this operation. And BLE has always believed that those agreements do not

-30- permit carriers to assign operation of remote control locomotives to employees other than engineers.15

Prior to 1984, neither the carriers nor any other union had suggested otherwise. However,

once UTU served a Notice proposing that the carriers establish a rule giving non-engineers the right

to operate remote control locomotives, BLE determined that it was necessary to clarify the existing

language in its national and local agreements to more clearly express that such work is exclusively

within the duties and responsibilities of engineers. Indeed, BLE recognized that had it not served

Notices confirming that the operation of remote control locomotives is within the exclusive

jurisdiction of the engineers represented by BLE, it would have left itself open to claims by the

carriers – as well as by UTU – that its failure to serve such Notices was a concession that the work

could be assigned to non-engineers working under UTU’s agreements with the carriers. Id. at ¶ 5.

Therefore, in the next bargaining round BLE served on most carriers a Section 6 Notice that

included language clarifying that the existing Scope Rule protected the right of engineers to operate

all locomotives, regardless of the particular form of “control” used. The proposed language in the

Section 6 Notice would have clarified the existing rule by spelling out that

F. Only qualified engineers will man and operate trains regardless of propulsion or control

G. [Engineers w]ill not be required or requested to relinquish the controls

Id. at ¶ 6. Although BLE’s proposal was not accepted by the carriers and did not become part of the

agreement ending that bargaining round, BLE has continued consistently to interpret the existing

language of the Scope Rule as protecting the engineers’ exclusive right to operate locomotives

15 As shown in our opening Submission (p. 10-18, 52), BLE has vigorously protested every time the carriers have assigned the work of operating locomotives to other crafts.

-31- regardless of the type of control being used to do so. Id. at ¶ 7. When UTU reiterated its request

to have the operation of remote control locomotives assigned to non-engineers, BLE General

Chairmen again served Section 6 Notices to clarify that the existing BLE agreements guarantee

engineers the exclusive right to operate locomotives in road and yard service, whether those

locomotives are remote controlled or otherwise powered. Id. at ¶ 11.

A number of BLE General Chairmen also felt that clarification was called for following the

1993 Canadian National decision. The Canadian award interpreted agreements that did not include

the language giving engineers the exclusive right to operate locomotives other than for hostling or

servicing purposes that is contained in the agreements governing carriers in this country. BLE, as well as BLE General Chairmen on properties across the country, were of the opinion that both the

BLE’s national agreements and the General Committees’ local agreements did not allow U.S.

carriers to assign operation of remote control locomotives to employees other than engineers, as had

occurred in Canada. It was their understanding that, pursuant to the rules contained in the U.S.

agreements, the operation of locomotives is the exclusive work of the engineer, regardless of the form of control used. Nevertheless, a number of BLE General Chairmen felt that carriers in this country might be tempted by the Canadian National decision to ignore the requirements of their

existing agreements and allow persons other than engineers to operate locomotives equipped with

remote control technology. These General Chairmen therefore served Section 6 Notices to clarify

and underscore that the existing BLE agreements guarantee engineers the exclusive right to operate

locomotives, including those that are remote-controlled. Id. at ¶¶ 8-10.

Given the clear evidence that the Section 6 Notices served by BLE were intended solely to

clarify existing rules, the “concession” argument that the carriers make here must be rejected. As

-32- Professor David Feller, former president of the National Academy of Arbitrators, has explained:

It is a familiar teaching that both employers and unions frequently propose changes in language for the purpose of confirming or clarifying rights which they believe already exist under the agreement. The fact that the specific language requested is not put in the agreement does not in itself necessarily prove that the existing language does not embody the substance of the proposal.

Safeway Stores, Inc., 73 LA 976, 981 (Feller 1979)(BLE EXHIBIT 77); United Can, supra, 102 LA

at 424 (“A change proposed for the purpose of clarification does not constitute an admission that the

proponent does not, under the existing language, have the right set forth in the proposal.”); Lockheed

Advanced Development Co., 109 LA 622, 629 (Calhoun 1997)(BLE EXHIBIT 78)(“That the Guild

attempted to negotiate different language in the agreement shows that it wanted to clarify and make

more exact the existing language. It does not show the Guild believed it had no defined bargaining

unit under its jurisdiction.”).

In United Can, it was the Union that tried to argue, as the Carriers do here, that an attempt

by the other party to an agreement to add clarifying language to the agreement was a concession that

“under the language then and still in effect,” the other party did not have the right it claimed. 102

LA at 424. There, the existing agreement provided that “in making promotions from one job

covered by this Agreement to another job covered by this Agreement, consideration shall be given

to length of service, ability, and physical fitness to perform the work.” Id. at 423. During

negotiations, the Employer had proposed adding “attendance” to the list of factors to which

consideration was to be given, but the proposal was rejected. When the Employer later refused to

promote an employee because of a bad attendance record, the Union argued that the contract did not

permit the Employer to consider attendance in promotion decisions and that the Employer’s proposal to add attendance to the provision proved the Employer knew attendance was not encompassed by

-33- the existing language. The Employer testified that it “considered attendance to be part of ‘ability’

to do the job” and that the change in language was proposed solely because questions about the

matter had arisen. Id. at 424.

The arbitrator rejected the Union’s “concession” argument. He concluded that, because the

Employer proposed the new language to clarify the meaning of the existing agreement, the proposal

“does not constitute an admission that the proponent does not, under the existing language, have the

right set forth in the proposal.” Id. The same is true here. BLE has always understood that the

existing Scope Rules protect the engineers’ exclusive right to operate locomotives in the

transportation of freight and the movement of cars, regardless of what form of control is utilized in

that operation. It served the Section 6 notices the carriers rely on for the sole purpose of clarifying

that fact after UTU served Notices that tried to obtain the right to have non-engineers to do that work and after the decision in Canadian National led carriers in this country to consider giving the work

to other than engineers. Simmerman Declaration ¶s 4-11 (BLE EXHIBIT 72).

In Quaker Oats Co., 35 LA 535 (Valtin 1960)(BLE EXHIBIT 79), another case rejecting the

proposition put forth by the carriers here, the dispute turned on a vacation provision. The Company

interpreted the contract as allowing it to shut down a department and require the employees to take

their vacations during the shutdown; the Union maintained that the contract did not permit such

forced vacations. Before the arbitrator, the Company argued that by proposing modifications to the

existing vacation provision after the Company had stated its view that the provision allowed

departmental vacation shutdowns, the Union had conceded that the provision as written permitted

the Company to take the action it did. Not surprisingly, the arbitrator soundly rejected this

contention:

-34- The record is clear that the Union’s representatives did not agree -- nor in any way indicated assent -- to the proposition that the retention of the language in fact permitted resort to departmental shut downs. Nothing in the evidence indicates that there was a meeting of the minds on this score. All that has really been shown is that the Company’s representatives stated their belief that the retention of Section 7.08, in combination with the existing language of Section 7.06, would permit departmental vacation shutdowns. In the opinion of the Arbitrator, the evidence on this score cannot be taken to mean that the Union had impliedly conceded that the existing language empowered Management to resort to departmental vacation shutdowns.

35 LA at 538 (emphasis in original).

Arbitrator Valtin’s statement applies as fully to the present case as it did to the circumstances in Quaker Oats. The BLE representatives who submitted the Section 6 Notices to clarify the existing rules governing operation of locomotives did not agree that the retention of the existing rules without the addition of the clarifying language would permit the carriers to resort to the use of non- engineers to operate locomotives equipped with remote control technology. Moreover, BLE has consistently understood the existing rules to protect the exclusive right of engineers to operate locomotives regardless of the form of control used. Simmerman Declaration ¶s 4-11 (BLE

EXHIBIT 72). Until this dispute, so have the carriers.

The carriers were put on notice long ago that BLE maintained that the Diesel Agreements required that all work of operating locomotives in connection with the movement of cars be assigned to engineers. In the bargaining round that began in 1988, BLE served notices to confirm its understanding of the breadth of the Diesel Agreements. As the carriers point out, its General

Committees of Adjustment proposed in that round to add to the agreements “Only qualified engineers from the bargaining unit would be permitted to man and operate (remote or otherwise) locomotives (regardless of means of propulsion) that run on a carrier’s tracks.” When the parties were unable to reach agreement on BLE’s proposal, the dispute was submitted to Presidential

-35- Emergency Board No. 219.

At the hearing before PEB 219, the carriers argued that BLE’s scope rule proposal should

be rejected because it was unnecessary. Carrier witness Robert Upton explained the carriers’

position this way:

Another issue dealt with was the scope rule by BLE. I think the Board has already heard enough about building walls around people and around work in this hearing and other hearings that you have been involved in to recognize that you just cannot keep throwing boxes around people and expect this industry to survive.

I don’t really know what the purpose of the rule would serve. Engineers know that their job is to operate the locomotive and I don’t think we want to try to set down in any fine language work functions which the BLE can perform to the exclusion of all other crafts.

Transcript of Proceedings before PEB 219, October 9, 1990, p. 1528-1529. (Emphasis added) BLE

EXHIBIT 81.

The carriers’ argument is further rebutted by the decisions in Washington Metal Trades, Inc.,

39 LA 1249 (Peck 1962)(BLE EXHIBIT 82) and Robertshaw-Fulton Controls, Co., 21 LA 436, 439

(Wolff 1953)(BLE EXHIBIT 83). In Metal Trades, Employer and Union disagreed over whether

agreement rules governing supplemental unemployment benefits required payment of benefits

during

-36- vacation shutdowns and periods when no work was available due to plant construction. The

Employer had previously not paid such benefits and had announced its view that existing rules did

not require their payment. The parties had renewed the agreement subsequent to these Employer

actions, without any change to the existing language. During negotiations leading up to the renewal,

the Union had proposed adding language to the vacation provision that addressed the matter, but had

then withdrawn the proposal. The Employer argued that the Union, by its actions, had indicated

“acceptance of the Employer’s previously announced position on the matter.” Id. at 1252. In

Robertshaw-Fulton, the contract provision at issue governed “Working Schedule.” The Company had made and then withdrawn a proposal to change the language of the provision to expressly permit

it to “designate different starting schedules for jobs within classifications covered by this

Agreement.” 21 LA at 439. When it later sought to designate different starting schedules for various jobs, the Union argued that the Company’s earlier offer and withdrawal of this proposal showed that it did not have the right to do so under the existing agreement.

Arbitrators Peck and Wolff both rejected the assertion that, by offering and withdrawing a proposal to adjust the language of the provisions at issue, the proposing party had in any way

“conceded” that the existing agreement did not provide the right for which it contended. Pointing out that “there was no testimony given to establish that the Union affirmatively conceded that the

Employer’s interpretation of the language of the earlier [i.e. renewed] contract was correct,”

Arbitrator Peck concluded that “the parties have not adopted the Employer’s construction of the pertinent language of the contract either as a matter of past practice or as a result of negotiation of the existing agreement.” Metal Trades, 39 LA at 1232. Arbitrator Wolff reached a similar

conclusion:

-37- The fact that the Company withdrew its proposal, in our opinion, is not to receive the same interpretation as contended for by the Union. Apparently, the Company merely sought language which would, in its opinion, make clear the rights which it believed it already had. Failing acceptance by the Union of the proposed clarifying language, its withdrawal by the Company cannot be construed as an admission that it did not have the rights for which it was contending.

Robertshaw-Fulton, 21 LA at 439.

In the present case, the carriers cannot point to any evidence that BLE has ever affirmatively conceded that the carriers’ interpretation of existing agreements -- that the agreements allow the carriers to assign operation of remote control locomotives to employees other than engineers -- is correct. To the contrary, as stated unequivocally by BLE Director of Research Simmerman, “BLE has continued to consistently interpret the existing language of the Scope Rule as protecting the engineers’ exclusive right to operate locomotives regardless of the type of control being used to do so.” Simmerman Declaration ¶ 7 (BLE EXHIBIT 72). Like the Employer proposals in United Can and Robertshaw Fulton, and the Union proposals in Quaker Oats, Metal Trades, Safeway Stores, and

Lockheed Advanced, BLE’s Section 6 Notices “merely sought language which would, in its opinion, make clear the rights which it believed it already had.” Accordingly, the carriers’ argument that the

Notices constitute a “concession” to the carriers’ interpretation of the existing agreements’ meaning must be rejected.

The adjustment board awards cited by the carriers and UTU accept without analysis the proposition that bargaining proposals per se evidence a lack of existing rights. We submit that such an over-arching standard deprives parties of the ability to use the periodic bargaining process to eliminate troublesome contract interpretation questions and avoid the costs of grievances and arbitration. The RLA itself offers bargaining as the primary vehicle for resolving disputes: “All disputes between a carrier or carriers and its or their employees shall be considered, and, if possible,

-38- decided, with all expedition, in conference between representatives designated and authorized so to confer, respectively, by the carrier or carriers and by the employees thereof interested in the dispute.” 45 U.S.C. § 152, Second. The standard the carriers promote creates a disincentive to ever put clarifying language on the bargaining table. We submit that it should be rejected here.

Indeed, other industry arbitrators have not found the service of proposals “conclusive” as the carriers suggest. For example, in Award No. 1 of Public Law Board No. 651 (UTU and Burlington

Northern)(Wyckoff 1971)(BLE EXHIBIT 84), after BN assigned to carmen the bleeding of cars preparatory to switching by yard crews, UTU served a Section 6 notice “to add to the Schedule a rule agreeing that, at yards where yardmen are employed, all bleeding of cars is ‘the exclusive work of yardmen, this item for purpose of clarification and not exclusion.” The Board sustained the claim filed by yardmen who otherwise would have performed the work, despite the union’s pending notice.

The NRAB First Division in Award No. 16408 (BRT and Pennsylvania Railroad)(Daugherty

1953)(BLE EXHIBIT 85) declined to hold against a carrier the service of a bargaining proposal on the same issue at the heart of a claim. The dispute in that case was over management’s right to deduct outside earnings from back pay due an employee who had been wrongfully held out of service. The union argued that the carrier’s bargaining notice seeking a specific rule allowing such deductions evidenced that the deductions were not allowed. The Board disagreed:

It has been contended that, because the carriers sought from the railroad labor organizations a specific rule authorizing the deduction of outside earnings in such cases, the carriers have admitted that most present rules on the matter are to be interpreted as not allowing or authorizing such deductions. We are not persuaded that this conclusion is necessarily valid. In our opinion the most that can be inferred from this move by the carriers is that most of the present rules are so general as to be susceptible of various and conflicting interpretations.

-39- While the carriers have been serving Section 6 notices for decades regarding eliminating restrictions on implementation of technology and their rights to assign work affected by technology,

UTU was the first to broach the remote control issue in 1984 when it served a notice explicitly directed at “Remote Control Locomotives.” UTU sought to “establish a rule to provide that:

Train and/or yard crews, regardless of size or consist, shall not be required to work with a remote control locomotive and/or any other type of remote control motive power capable of moving, switching or transferring rail cars, to be operated or controlled by anyone other than a member of that train or yard ground crew.

Simmerman Declaration ¶ 4, Ex. A (BLE EXHIBIT 72). Faced with another union attempting to negotiate agreement provisions that would infringe upon the exiting rights of BLE-represented engineers, BLE General Committees responded by filing their own notices to ensure that the carriers confirmed the meaning and intent of their agreements with BLE and prevent this intrusion into the engineers’ jurisdiction. This began the two unions’ disagreement over which craft held the right to be assigned remote control operations of locomotives, a dispute that only last year went from the theoretical to the actual when the carriers decided to toss their agreements with BLE aside and assign the operating duties and responsibilities to switchmen and conductors.

The Board should recognize that the agreement with UTU settled both UTU’s latest Section

6 notice seeking to secure the work (BLE EXHIBIT 5) and the carriers’ Section 6 notice that proposed to “[e]liminate 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” and “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

-40- create an exclusive right thereto.” If, as the carriers say, there were no “existing restrictions” to be eliminated, one can fairly ask why the agreement with UTU was necessary and why the carriers paid a 46-minute per tour of duty premium along with a six year protection package one-for-one for each

RCO assignment.

IX. THE CANADIAN AWARD IS DISTINGUISHABLE.

The Carriers claim that in the Canadian case, arbitrator Picher decided that the same technology involved in this case had taken over the core functions of the Canadian locomotive engineer working in hump service. Putting aside for a moment any consideration of the very significant contractual provisions and factual circumstances which distinguish the Canadian case from this one, one must question whether arbitrator Picher understood the true nature and limitations of the remote control technology that CN had implemented. We have already explained what the

OCU accomplishes on its own — virtually nothing. The RCO makes every train handling judgment and operating decision. The on-board circuitry merely maintains a speed at which the RCO decides the movement should occur, assuming he wants to maintain one speed; nothing more. The evidence here regarding the training given RCOs, the responsibilities they are carrying out while using the

OCU, and the requirements of FRA regulations together demonstrate that it is not appropriate to extend arbitrator Picher’s conclusion that the belt pack assumes the Canadian hump engineer’s core functions to the relationship between the belt pack and the duties and responsibilities of locomotive engineers on the carriers here.

In our Opening Submission we pointed out the myriad ways that the Canadian award, its illogic notwithstanding, is inapposite to this dispute. Importantly, the Diesel Agreements were not

-41- in evidence there. Indeed, the entire scheme of scope rules, craft designations and contractual rules were different than those in evidence in this case. We have previously made all that abundantly clear.

Beyond all those differences, there is something else the Carriers have not mentioned in connection with Mr. Picher’s Findings which deserves this Board’s notice. That something was a deliberate limitation upon the reach of his Findings to hump service. Mr. Picher said:

No one disputes the right of the Company to maximize productivity and efficiency by the introduction of remote control switching and locomotive operations in its hump yards. (Emphasis added).

In the circumstances presented here, the Carriers intend a far more general implementation of remote control than “in its hump yards.” If anything about the Canadian dispute has any validity or bearing on the instant case, it is the inference that, because of the very narrow scope of that dispute, the arbitrator’s Findings must be correspondingly narrowly construed. The Canadian case did not involve a wholesale assignment of nearly all classes of locomotive engineers’ work to ground service employees. The Carriers are wrong in attempting to argue that a narrow decision can be given broad application, especially here, where the facts are not analogous. One should seriously doubt that Mr. Picher would have reached the same result had he been faced with the ramifications of such a general replacement of locomotive engineers by RCOs in Canada as intended by the

Carriers party to this dispute.16

Finally, the Carriers say that the Canadian award supports them when “the overall” job of the RCO is considered. This argument, that engineers’ work may be assigned to others simply

16 The recent agreement between the Carriers and the UTU calls for the assignment of RCO’s “on yard engines, road switchers, locals and other comparable assignments.” BLE EXHIBIT 5.

-42- because the others perform some additional, different duties does not gain credence simply by repeating it. For the reasons already expressed herein and in our Opening Submission, no part of the duties and responsibilities of engineers may be given to non-engineers without violating our agreements with the carriers.

The Carriers’ recent agreement with UTU calls for non-engineers to use remote control technology “on yard engines, road switchers, locals and other comparable assignments.” As they describe it in their Submission, this means “pick-ups and set outs...essentially anywhere on a carrier’s system - in rail yards, terminals, industrial sites served by the carrier, and on sidings along the carrier’s lines;” classification switching in flat and hump yards; yard engine assignments; industrial and transfer assignments; road switcher assignments; local road assignments; and what they call “comparable assignments.” Carriers’ Submission at 12-14. They intend to replace engineers on movements extending to 40 or 60 miles outside the terminal/switching limits. Gradia

Statement ¶ 11 (Carriers’ Exhibit 9, 10). BNSF summarized its intentions “to use remote control technology for ... all the work that railroads do beyond simply moving freight from Point A to Point

B.” Quilty Statement ¶ 3 (Carriers’ Exhibit 8).17

Plainly, what the carriers intend is a wholesale reassignment of locomotive control to non-

engineers in other than through-freight service. What has been the result of the carriers’ creation

of RCO positions so far? Hundreds of locomotive engineers already have seen their yard positions

17 UP Senior Manager of Terminal Operations Don Seil describes job YOZ65 operating some 30 miles back and forth between Ozol and Giant, as one that will be converted to remote control. Carriers’ Exhibit 12. This assignment traverses 4 public crossings at least twice each per shift, two shifts per day; and another crossings 5-10 times per shift. Declaration of Walter Selby (BLE EXHIBIT 86).

-43- abolished.18 According to the carriers, this is only the beginning. Locomotive engineers no longer

check the condition of switching locomotives before and after each tour of duty; RCOs do.

Locomotive engineers no longer control the starting and stopping of these locomotives; RCOs do.

Locomotive engineers no longer control the speed of switching movements in and around terminals;

RCOs do. Now, RCOs rather than locomotive engineers observe and act on signals governing the

movemnt of their trains, sound the bell and horn, and do all the other things associated with

effectuating locomotive movements. In short, all responsibilities previously performed by BLE-

represented locomotive engineers in the yards have been re-assigned to RCOs. The RCO has

become solely responsible for the safe operation of the locomotive.

X. UTU’S ARGUMENTS HAVE NO MERIT.

UTU makes only one argument that differs from the carriers’, and it borders on the ludicrous.

UTU’s argument is that the dispute is ended once the Board sees that UTU’s new agreement with

the carriers explicitly sanctions the assignment of the disputed work to UTU-represented workers.

If that argument prevailed, a carrier could reach agreements with one organization in order to

18 As arbitrator John LaRocco observed in a case relied upon by the carriers,

While the positions and work Scope Rule prohibits the Carrier from transferring clerical work to employees not covered by the Agreement, regardless of whether or not the transfer resulted in the reduction of clerical forces, the abolition of jobs is frequently a reliable indicator that the Carrier may have transferred a quantum of work from the clerical craft to non-covered workers. When no positions are abolished, the most plausible conclusion is that the Carrier did not transfer any clerical work.”

Award No. 1 of Board of Arbitration (TCU and Soo Line Railroad) (LaRocco 1988) (Carriers’ Exhibit 81).

-44- override agreements with another at will. Obviously, the carriers must overcome barriers in both crafts’ agreements before an intercraft transfer of workplace responsibilities can occur. The carriers have not overcome the BLE barrier here.19

Beyond the Canadian Award, UTU relies solely upon a series of awards involving the elimination of data entry functions of clerical employees. In every case, employees in the field were given access to computers, into which they entered information that previously they had written on paper and delivered by hand to the clerks, who then inputted the information into computers. The information being recorded always was generated by the field employees. No discretion entered into the clerks’ jobs; they simply recorded what the non-clerk in the field reported to them. In short, the clerks were nothing more than records maintainers, inputting or extracting data as necessary. They truly were the middlemen in the carriers’ recordkeeping process -- they were merely duplicating what someone else told them should be put in the record. Plainly, the relationship between locomotive engineers and ground personnel is far more complex. UTU’s simplistic analogy falls flat when one recognizes that the RCO has taken on the operational responsibility of controlling the movement of tons of moving equipment and freight. The elimination of some redundant transcription of information is a far cry from what the implementation of remote control technology has wrought for the carriers’ terminal operations.

19 Implicit in UTU’s argument is the concern that by adopting BLE’s position, the Board would subject the carriers to conflicting obligations with the UTU. That may be, but those obligations were assumed voluntarily by the carriers in arms-length bargaining. If the carriers are to extricate themselves from such a situation, the bargaining table, not this arbitration, is the proper forum for them to obtain relief. Insofar as UTU’s members are concerned, it seems that they already are protected. If this Board’s award requires that the carriers return the engineers’ duties and responsibilities to the engineers and that has an adverse effect on a UTU member’s employment, the UTU member can invoke the protection provisions in the agreement UTU reached with the carriers.

-45- CONCLUSION

Nothing the carriers and UTU have brought forth in this proceeding begins to justify the abrogation of the carriers’ duty to bargain with BLE to obtain the relief to which they are helping themselves unilaterally.

The carriers say that they have transferred existing duties and responsibilities of engineers to a computer, not to other employees. They say UTU-represented employees are using an OCU solely to communicate with an on-board computer. They say that UTU-represented employees are not operating a locomotive and controlling train movements. They say that BLE has no agreements providing for exclusive jurisdiction of engineers’ work. In short, the carriers want this Board to rule on the basis of mischaracterizations and pure fiction.

Working the remote control device is most assuredly a means of operating a locomotive to move cars and trains. They do not call it remote control without reason. The RCU is not a simple communication device. If it were, there would have been no reason for the carriers to enter into an agreement with UTU to pay a premium to employees for doing something they already could do for no additional compensation. UTU-represented employees are being paid to assume the duties and responsibilities of locomotive engineers in violation of BLE Agreements.

The carriers want you to believe that, because an additional layer of locomotive control circuitry has been added to receive radio commands to execute control functions rather than control stand commands, and that the power and brake functions are set in slightly different or fewer increments than at the control stand, a human being is not actually operating the locomotive and making relevant operating decisions. This requires suspension of reality. In reality there is no brain on the train when the OCU is in use (unless, of course, the RCO gets into the cab). We suggest that

-46- when the curtain is pulled back from the carrier’s deception, a person is handling the controls that put the wheels of engine-operating wizardry into motion. And, if the controlling agreements were being honored, that person would be an engineer.

The Board cannot ignore what is really taking place. The carriers want to reduce costs and increase profits by reducing the number of employees operating trains. Two separate and distinct crafts, engineers and trainmen, do their respective work to run trains. Engineers operate engines and move trains. Trainmen work the ground to assemble and disassemble trains. As a practical matter, the ground work must be done on the ground. With remote controls, the carriers say, the locomotive engineer could also be on the ground, doing both ground work and running the engine.

Then, instead of a crew of three, two on the ground and one in the cab, the crew could be reduced to two, both on the ground. The problem they faced: as a contractual matter, the work of the two crafts cannot be combined without the agreement of both, but negotiating two such agreements is difficult and presented additional economic hurdles. The carriers’ solution: make a favorable agreement with one craft to do the work of the other, then force the other union to Section 3 arbitration.

Economic expedience has never been deemed sufficient to set aside provisions of collective bargaining agreements. NRAB First Division Award No. 24884 (BLE and Tacoma Municipal Belt

Railway)(Eischen 1998)(BLE EXHIBIT 87); NRAB First Division Award No. 24939 (BLE and

Tacoma Municipal Belt Railway)(LaRocco 1998)(BLE EXHIBIT 88). It may be that the carriers find the BLE Agreements do not synchronize with technology and workplace efficiencies as they would like, yet it remains that the Agreements are what they are, and they may not be disregarded or revoked by this Board or through an agreement with a third party. NRAB First Division Award

-47- No. 20161 (BRT and Chicago, Milwaukee, St. Paul and Pacific)( Seidenberg 1962)(BLE EXHIBIT

89); NRAB First Division Award No. 20172 (BRT and Southern Railway)(Seidenberg 1962)(BLE

EXHIBIT 90). The agreements secure the work of operating locomotives to move cars and freight to locomotive engineers

When the veneer of fiction is stripped away from the carriers’ arguments, what is left is the fact that, until this dispute, engineers, and only engineers, operated locomotives to move cars since the dawn of the industry. And they have done so under agreements almost as old as the industry itself. These agreements have reserved the operation of locomotives exclusively to locomotive engineers. This Board should find that nothing has happened technologically or otherwise that justifies the carriers’ position to the contrary. Only one conclusion can validly be drawn from this record:

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.

-48-