1- Reply Submission of The

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).

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