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SPECIAL BOARD OF ADJUSTMENT NO. 1141 __________________________________ Between BURLINGTON NORTHERN AND SANTA FE RAILWAY C0., CONSOLIDATED
RAIL CORP., KANSAS
CITY SOUTHERN RAILWAY CO., NORFOLK
SOUTHERN RAILWAY CO., and
UNION PACIFIC RAILROAD CO. And
Their Employees Represented
By BROTHERHOOD OF LOCOMOTIVE ENGINEERS And Their Employees Represented By UNITED TRANSPORTATION UNION _____________________________________ Board
Members Board
Chairman: Gil Vernon I.
FINDINGS This
Neutral, upon the whole record and all of the evidence, finds that the
Employees and Carriers involved in this dispute are respectively
Employees and Carriers within the meaning of the Railway Labor Act as
amended and that the Board has jurisdiction over the dispute involved
herein. The Neutral was established pursuant to Section 3, Second of
the Railway Labor Act 45 U.S.C. Section 153, Second. II.
QUESTIONS AT ISSUE The
dispute before the Neutral is presented pursuant to an Arbitration
Agreement signed by the parties on June 25,2002. Sections 6 and 14 of
that agreement set forth the jurisdiction of the Neutral. These
sections read as follows: 6.
The Board shall have jurisdiction only over the dispute(s) shown on
Attachment "A", No other claims, issues or disputes shall be
submitted to the Board except by mutual consent of the parties to this
Agreement. The Board is not empowered and has no jurisdiction to act
or decide the matters) before it as an "interest
arbitration" board. The Board shall not have the authority to
create any new rules, add contractual terms or change existing
agreements governing rates of pay, rules and working conditions. 14.
In its Award, the Board shall confine itself strictly to decisions as
to the questions specifically submitted to it. Attachment
"A" of the agreement set forth the questions, one from each
of the three parties, to be addressed by the Neutral: BLE: UTU: CARRIERS:
Under the Carriers' collective bargaining
agreements with the Brotherhood of Locomotive Engineers and the
III. BACKGROUND The
dispute before the Neutral in general terms is centered around
technology that allows the movement of a locomotive to be controlled
from a remote location, rather than the locomotive being operated from
inside the cab of the locomotive by use of the traditional throttle
and brake system, The remote control unit (RCU) is smaller than the
size of a shoe box and can be hung on an operator's belt. The unit is
referred to as "belt pack" by one of the two manufacturing
firms that offer this technology for sale. It contains knobs and
switches which relate to the movement of the locomotive. The remote
control device sends commands via radio to a
computer/microprocessor that is installed on board the engine which
translates the radio signals into electronic commands that operate the
locomotive's brakes and throttle systems. As
various rail carriers considered use of remote control technology,
both the UTU and the BLE claimed that RCUs should be operated by the
employees they represent. The BLE represents engineers who
traditionally operate locomotives. The UTU represents, among others,
switchmen who control the movement of an engine in yards and terminals
by hand signals and radio voice communication, usually on the ground,
in the process of moving freight cars and related activities of
coupling cars, uncoupling cars, throwing switches, coupling air hoses,
aligning couplers and setting hand brakes. Ultimately,
the Carriers signed a Letter of Intent dated September 26, 2001 with
the UTU regarding the implementation and utilization of remote control
technology, which stated that the UTU employees would be assigned the
task of operating the remote control devices. The BLE responded to the
Letter of Intent by threatening a strike, which the federal court in
Chicago enjoined, finding the issue was a "minor dispute"
under the Railway Labor Act, subject to exclusive arbitral
jurisdiction and issued an opinion January 15,2002 in Burlington
Northern and Santa Fe Ry. v. BLE ("BNSFv. BLE"), 2002 WL
47963 (N.D.I1L), appeal pending, 7th Cir. Following
the issuance of the injunction, the BLE initiated negotiations with
the Carriers for an arbitration agreement to establish a board to
resolve the dispute. Shortly after those negotiations began, UTU
relayed to the Carriers in writing that it held an interest in the
outcome of the arbitration and demanded to participate as a foil party
in the proceeding. BLE did not oppose UTU's involvement in the
arbitration. As noted, the Arbitration Agreement was signed June 25,
2002. On August 20, 2002, the Carriers
concluded a final Remote Control Agreement with UTU. That agreement
addresses issues concerning labor protection, compensation, training,
certification, and the bidding and protection of positions occasioned
by the implementation of remote control operations.1 1 The BLE suggests the labor protection is
limited to UTU members. The UTU disputes this in
a footnote on page 6 of their rebuttal
brief which states: The
labor protection provisions (UTU Opening Submission, Ex 4, Att A)
stipulate that for 6 years after establishment of an RCL assignment at
any location, a remote control protection ("RCP") slot will
be established to be paid at yard conductor/helper rate, subject to
reduction by buy-outs, abolishments of RLC positions or establishment
of RLC reserve board positions for train or engine employees, and the
side letter provides that a carrier may offer up to one-half of
buy-outs offered or reserve board positions created to engine service
employees. Moreover, engineers may move to RCO and/or RCP slots in the
normal operation of "ebb and flow." All of this belies the
implication at page 3 of BLE's Opening Submission that engine
service employees were cut out of the benefits of the Remote Control
Agreement. That agreement goes as far as possible given that UTU has
no authority to negotiate directly for most engineers. Moreover, as
BLE notes at page 1 of its Opening Submission, the carriers' strike
injunction action was held in abeyance pending a membership vote on a
BLE merger with UTU. The failure of the BLE membership to agree to
merge prevented the full participation by the BLE in the Remote
Control Agreement process. It may be helpful in understanding this
aspect of the dispute that since 1985, most employees hired
as engineers by contract with the UTU come from UTU ranks. Moreover,
engineers have
the option to maintain membership in the UTU (UTU-E) or the BLE. The
BLE, however, is the exclusive representation for purposes of
bargaining contracts concerning the wages, hours and conditions of
employment of engineers. _________________________________________________________________________________________________ Pending
arbitration, the BLE came to believe that remote control operators (RCOs)
were controlling locomotives from inside the cabs of locomotives,
often from the scat formerly occupied by the locomotive engineer. BLE
filed a motion asking the court to clarify that the injunction it
issued against BLE on January 16, 2002 did not cover such situations.
Following a hearing in which counsel presented argument on the motion,
the judge scheduled an evidentiary hearing on the issue. Prior to the
evidentiary hearing, the parties agreed, without prejudice, to any
party's position with respect to BLE's motion or this arbitration that
pending a final decision by this Board, RCOs would be instructed that
they "shall not use remote control operating units to effectuate
locomotive movements from inside the locomotive cab, except in an
emergency." Ultimately,
the Board conducted hearings, subsequent to receipt of submissions and
reply submissions, in Chicago on November 18 and 19, 2002. It is
pursuant to the hearing, the submissions, the evidence and the
agreement that the Neutral issues this Award. IV.
OPINION AND DISCUSSION The
BLE's statement of the question before the Board recognizes that for
the Neutral to answer its statement of the issue in the affirmative,
there must be a finding that the BLE has the exclusive right to
perform RCO work by virtue of existing written agreements and/or
established practice. The Neutral agrees that this is the appropriate
analytical framework. Whether
there are BLE agreements or whether there is a related practice which
restricts the Carrier's discretion concerning which craft to assign to
RCO duties needs to be broken down into parts. The first of these
sub-questions involves whether there exist applicable uniform national
agreements which address the issue. If no uniform national rule
exists, the question is whether a practice exists along these lines.
The BLE also raises questions about whether such agreements and
practices might exist on individual properties. Individual properties
will be addressed later. A.
NATIONAL RULES AND AGREEMENTS First,
with respect to the national question, the Neutral notes the BLE makes
a number of arguments and references to national agreements, They
assert that General Order No. 27 and the 1944 and 1945 Diesel
Agreements stake out an exclusive work jurisdiction for BLE engineers
which would prohibit assignment of the RCO duties to employees
represented by another labor organization.
It is the opinion of the Neutral that none of these agreements can be
reasonably interpreted to specifically and exclusively reserve the
work in question to the
BLE. General Order No. 27, issued by Director General of Railroads
during the government's operation of national railroads during World
War I, was the basis of later-negotiated language between various
carriers and the BLE. However, this language does not define
"engineer's" work and it is indeed an overly broad reading
to say General Order No. 27 granted jurisdiction to the BLE over the
use of any locomotive for any purpose. The purpose of General Order
No. 27 is much more modest. The purpose is to simply grant engineers
(as opposed to other crafts) preference for positions as engineers. It
does not attempt to define engineers' work or specify an exclusive
jurisdiction. As
for the 1944 and 1945 Diesel Agreements, these agreements grew out of
the transition between steam engines and diesels. At times, during the
steam days certain trains required more than one engine and because
the operation of a steam engine required the physical operation of
on-board valves and such, each engine physically required a separate
engineer. The development of diesel engines which had electric-based
controls raised the possibility that a multiple engine unit could be
coupled together with appropriate hard wiring and operated from a
single set of controls. If
anything, the Diesel Agreements, which were based on a Presidential
Emergency Board report dated February
20,1943, recognized that technology could create operational changes
that legitimately, in the words of the Emergency Board,
"dispensed with" the need for engineers in the operation of
certain locomotives in certain situations (i.e., multiple engine
consists). There was little dispute and indeed the two unions involved
(the BLE and the Firemen) seemed to acknowledge that one engine crew
for each locomotive was not needed. Instead of one crew for each
locomotive, the consensus was there should be one extra man in
addition to the normal two-man (engineer and fireman) crew on multiple
consist/engine operations. More importantly, there was a dispute
between the firemen's union and the BLE whether this extra man should
be an engineer of some status or a fireman. It
was recommended by the Board that an extra man was only needed in
certain circumstances and, if needed, the employee could be from the
firemen ranks. In converting these recommendations to voluntary
agreements on individual properties, the following language was
typical: In
the application of this agreement, it is understood that the .existing
duties and responsibilities of engineers will not be assigned to
others. It is farther understood that a second engineer is not
required in multiple-unit service where the engineer operates the
locomotive with one set of controls. In
the context of the dispute's history, this simply means, beyond the
recognition that technology could mean a loss of position, that the
assignment of a fireman as an extra man in certain
multiple engine, units would not infringe on the existing rights of
engineers, The Diesel Agreements have no restrictive application to
the RCO set of facts. The
BLE also made arguments concerning the 1985 Incidental Work Rule which
appears in both the UTU and the BLE National Agreements. It reads as
follows: Road
and yard employees in ground service and qualified engine service
employees may perform the following items of work in connection with
their own assignments without additional compensation: (9)
Use communication devices; copy and handle train orders, clearance
and/or other messages. The
BLE contends that the RCU is not a communication device; therefore,
the 1985 UTU Agreement in its opinion does not authorize the
assignment of RCO duties to switchmen. It is also submitted by the BLE
that the RCU is not a communication device but a set of engine
controls. Moreover, it is its position, even if the "belt
pack" is considered a "communication device," Side
Letter 9 precludes the Carriers from assigning its operation to
non-engineers because to do so would infringe on the work rights of
the locomotive engineers. The BLE notes Side Letter 9 to UTU's 1985
Agreement provides that the Carriers may not rely upon the provisions
of the Incidental Work Rule to assign work to UTU-represented workers
if the work belongs to another craft as established on any railroad. First,
contrary to the suggestion of the BLE, it is the opinion of the
Neutral that the Carrier need not affirmatively demonstrate that there
is a national rule with the UTU such as the Incidental Work Rule (part
of the October 31,1985 National Agreement) or with the BLE that allows
or authorizes the disputed assignments to engineers. While the Neutral
is not persuaded by the Carrier and UTU argument that the Incidental
Work Rule affirmatively authorizes the assignment of RCO duties to
switchmen, the threshold question is whether the BLE contract
prohibits assignment of RCO duties to non-engineer crafts. It does
not. Even
so, the Neutral finds that the Incidental Work Rule in the context of
this particular dispute does not lend support to anyone's position. It
does not authorize the Carriers to assign the RCO work to UTU members;
nor does it restrict the Carrier. It is not applicable because the
Neutral is not convinced that this language contemplated this kind of
technology. Any contention that the Incidental Work Rule cuts one way
or the other begs the basic question. The
Neutral's conclusion that there is no national rule which specifically
reserves remote control operations to the BLE or that prohibits the
Carrier from assigning such work to other crafts or that prohibits the
elimination of engineer jobs as a result of technology is supported by
the recent history of national bargaining. In 1988 many railroads were
served with Section 6 notices that asked the Carriers to adopt a new
rule providing that: A.
Only qualified engineers will man and operate trains regardless
of propulsion or control B.
[Engineers] [will not be required or requested to relinquish
controls. In 1994 the BLE's Section 6 notice to one
major Carrier, for example, sought a rule providing that: No
Carrier supervisor, official, non-engine craft employee, radio
transmitting device or other device will be used to supplant or
substitute in the exclusive work of any employee working under BLE
agreements. The above quoted language is illustrative
of similar language of Section 6 Notices in the current round of
negotiations in the notice it served on CSX Transportation. The BLE
proposes that "[technologically advanced locomotives or motive
power equipped for remote control will be operated and/or
controlled by a Locomotive Engineer " Similarly, on the Union
Pacific, the BLE proposed language as follows: Should
technology advance in the industry to the point where the traditional
job of controlling and operating locomotives from an on board location
change so that the actual train operations (movements) are controlled
from a remote location it is understood that the craft of Locomotive
Engineers shall be considered as the fundamental affected craft to
flow to such new assignments. It
has been held so often, as not to require citation, that when a Union
asks for, but does not receive, exclusive rights through the Section 6
process, it weighs in favor of the proposition that the Union does not
have such rights in its existing written agreements. B.
PRACTICE The
BLE recognizes that the agreements in effect between various earners
and the BLE at the time of the Diesel Agreements did not stipulate or
delineate many particular duties and responsibilities of locomotive
engineers. It suggests this was because—although not articulated in
writing—there was a well-entrenched understanding as to the
exclusive duties of engineers and conductors, brakemen, switch tenders
and yardsmen from virtually day one. Its basic point is not questioned
by the Neutral which is that custom and practice are therefore
important in determining the issue before the Neutral. The
importance of practice is even more critical given our finding that
neither General Order No. 27 nor the Diesel Agreements nor any other
uniform written national agreement restricts the Carriers with respect
to the operation of technologically born devices, or the assignment of
personnel in connection therewith, such as the remote control devices
in question. It
is not farfetched to say that there has evolved, through custom and
practice, a distinct core set of exclusive duties of engineers and
groundsmen (switchmen, brakemen, conductors and switch tenders) in the
yard and terminal operations. The parties, however, disagree as to
exactly how to characterize the traditional duties of engineers. Even
more sharply disputed is the nature of remote control operations and
the nature of remote control operator positions compared to that of
traditional engineer work. While described in enormous detail in their
submissions, the basic positions of the parties on custom, practice
and the nature of the work can be succinctly summarized. 1.
The BLE Position The
BLE contends that the function of the RCO is in all essential
respects, based on custom, practice and the nature of the technology,
engineers1 work. The RCO, in its view, is operating the
engine's throttle and brake and acting as an engineer. Therefore, it
is argued, the assignment of the RCO to UTU personnel is a violation
of the BLE contract. Indeed, the BLE notes that engineers have even
operated engines by radio remote control when engines were added to a
train. They
describe as a hoax the idea ''that a computer has replaced the
engineer." In short, the engineer, in essential form, operates
the throttle and the brakes. When controlled from the belt pack, the
identical movement is accomplished in virtually the same manner. The
operator releases the independent brake moving the independent brake
switch on the RCU to the release position. The RCO then moves the
direction control switch to forward and he can select different
speeds. As he approaches his spot, the RCO moves the power control
lever to decreasing speed settings, or places the power selector in
coast. He brings the locomotive to a stop by manipulating the
multi-position independent brake switch or he places the power
selector switch in the stop position, and the brakes apply.
Accordingly, it is the position of the BLE that the addition of some
microprocessors as component parts of a locomotive has not changed the
general class and character of the engineer's work. The microprocessor
does not let a locomotive decide for itself when to go, which
direction to go, what speed is appropriate, when to accelerate or
decelerate, or when and how to stop. All of the judgments that a
locomotive engineer must make concerning the dynamics of train
handling must still be made, and the Carriers have simply assigned
that responsibility to a ground service employee. 2.
The Carriers' Position The
Carriers contend that with remote control technology, the engineer's
function is now performed by the on-board computer which has taken
over the task of operating the locomotive's throttle and brakes,
automatically adjusting for the weight of the train, track grade, and
a myriad of other factors. Using the small belted radio transmitter,
the RCO directs the computer to move the locomotive at the speed and
the direction required just as, in the Carriers' opinion, ground service
employees in conventional operations direct locomotive movements by
hand or radio signals to an engineer. The Carriers maintain no
violation of the BLE contract has occurred. The RCO is not acting as
the engineer—the computer is. The Carrier maintains that the BLE
contract does not prohibit the elimination of jobs due to technology. 3.
The UTU Position The
UTU's position is similar to the Carriers’ with respect to the
nature of the switchmen's function, the engineers' function and that
the latter function has been eliminated by remote control technology.
By using the remote control device, the switchman is doing what he has
always done and that is signaling the engine to move or stop. Rather
than giving this signal by hand or by voice over a radio to an
engineer, the signal is sent to a microprocessor on the locomotive
which then performs the work formerly done by the locomotive engineer.
The relationship between speed, grade, time, distance, weight,
throttle setting, and brake applications are essentially determined by
a microprocessor and software programming that may be adapted to
accommodate any particular operation. A yardman initiates a request
and the computer takes over. The mental calculations, previously
performed during conventional operations by highly trained and skilled
operators, are now performed by the microprocessor. The UTU notes too
that such a finding occurred in arbitration involving identical
technology and competing jurisdictional claims in Canada. 4.
Discussion on the Issue of Practice and the Nature of Remote
Control Operations To resolve the
questions before the Neutral, it is necessary, as each party has done,
to discuss engineer duties in yards and terminals, as well as
switchmen, and compare it to the nature of remote control operations.
Of course, to completely understand this relationship, it is helpful
to take notice of the evolution of yard operations, particularly as it
relates to engineers and groundsmen/switchmen. The
Neutral believes that the historical relationship between engineers
and groundsmen and the essential, exclusive duties of each position
can be stated in the following shorthand. In sum, the engineer
principally operates the engine and the groundman among others
principally controls the engine.2 It is not a perfect
analogy, but if yard/terminals are thought of as city streets, the
engineer is like a driver and a groundman is one of the traffic cops.
At intersections controlled by a traffic cop, a driver does not move
until the traffic cop signals the driver to move. If the traffic cop signals the driver to
stop, the driver stops. If the traffic cop signals the driver to turn
left or right, the driver turns left or right. Once his movement is
authorized by signal, the driver makes his own decisions about how to
operate or drive the car to go where the controller (the cop) has
directed the driver to go. Much the same thing is true with engineers
and groundsmen in yards and terminals; this fact is born out by the
following analysis. 2
A similar distinction, at a minimum, was essentially recognized by the
National Mediation Board in a representation matter United
Transportation Union and The Kansas City Southern. Railway Company.
29 NMB 410 (2002) when it stated: "Simply put, train service
employees instruct the engineer on where to go and how to get there
while the engineer moves the train." The
essential functions of yards and terminals are for the collection
and/or distribution of freight cars to and from shippers. Switchmen
still line switches, identify cars, couple and uncouple cars, marshal
cars for different destinations, make up outbound trains, distribute
inbound cars, and service industries by switching cars in and out,
lace air hoses, set and release hand brakes, bleed cars, and maintain
switching list. The engineer operates the engine. It
is absolutely critical to recognize that in the course of performing
yard duties, the engineer does not move the locomotive until a
groundman, yardmaster, or other authorized parry tells the engineer to
move. In the years prior to the 1960s, a groundman communicated what
moves he wanted the engineer to make with the locomotive by various
standardized hand signals. For example, the engineer might be pushing
a cut of cars and had been instructed to move them to a track that
requires several switches to be thrown. The engineer, because of the
length of the train and/or curvature of the track, will often not be
able to see the distance between the lead car and the switch. The
groundman protects the forward point of the cut and controls the speed
of the movement of the engine so it is capable of stopping upon his
command. Since the 1960s, these signals have been transmitted by voice
radio. Once given the signal to stop, the engineer then makes the
decision how to stop, given track conditions, train weight, wheel
slippage, tractile power and brake pressure. When the switch is thrown
in the proper direction, the groundman will signal the engineer to
proceed. Without this signal, the engine should not move. It
is in this sense that the groundman controls the movement. Another
example makes the same point. In conjunction with the same movement
described above, the crew might be expected to push the same cut of
cars onto a track to couple to another cut of cars. The switchman will
give the engineer directions as to how many car lengths he needs to
go; in other words, the closing distance to the coupling. He might
tell the engineer to modulate his speed from 5 mph to 3 mph. He might
say to come ahead 2 car lengths "easy" so the coupling is
made without damaging force and then give a stop command. The record
contains other such examples that make the point that it is the
groundman who controls the movement of the train. Particularly when
the engineer's sight is limited, the groundman decides what movements
are necessary and communicates them to the engineer who then executes
the commands by manipulating the throttle and the brakes in various
combinations, given all the relevant conditions. Indeed
under Rule 1.47 of the General Code of Operating Rules, to put it in
plain terms, the conductor is the "boss of the train," or as
some might say: the "potentate of moving freight." The
conductor's role as controller of the train has long been a source of
irritation, for engineers, formally and informally. A
close analysis of the BLE arguments reveals that the BLE doesn't
particularly dispute that control decisions have to be made in order
to operate engines. For instance, they state in their submission.
"The locomotive does not decide for itself what direction to go,
when and how to accelerate or decelerate, and when to stop." The
Neutral completely agrees with this statement, but it does raise the
question: If the locomotive doesn't make these decisions, who does? With
regard to this question, the Neutral respectfully disagrees with the
BLE and agrees with the UTU and the Carriers that these control
decisions in yard and terminal operations, in their most fundamental
form, are not made exclusively by the engineer but are made by the
groundman. In the 'move' intensive world of yard and terminal
operations, the groundman usually makes these decisions rather then
the engineer. There
is no doubt, there exists circumstances when moves are made in yard
and terminal operations where the engineer's sight is not limited and
he does not need to be told by the groundman exactly what to do and
when to do it. For instance, he might be able to see that a switch is
not properly aligned and he knows he must stop the train short of it
and wait for the groundman to throw the switch. There are no doubt
times when significant distances are traveled and the engineer makes
some of the judgments on speed. However, the breadth of these
decisions in a yard is limited given speed limits and/or restrictive
rules. The point, however, is that the control of engines in terminals
is not by custom and practice exclusively reserved to engineers. Under
operating rules, the groundman principally makes these decisions and
ultimately the conductor is in charge of the train. This relates to
the important fact that in many instances not only does the groundman
have the best view, but he is in a position of peril if the engineer
moves the train without the groundsman's direction and control. Given
the Neutral's view as to the nature and distinction of the engineers'
duties and groundsmen's duties and given our conclusion that control,
as contrasted with the operation, of the locomotive is not exclusively
reserved to engineers, the question is where does the operation of the
remote control device fall? Is it a matter of control or operation?
The operation of a locomotive is the exclusive domain of the engineer.
The control of the locomotive is not. The
operation of a locomotive involves the receipt and response to signals
from ground employees. This response involves initiating forward and
reverse train movements consistent with those
signals/commands including controlling acceleration and deceleration
while allowing for train mass, track grade, track curvature, wheel
slippage, tractile power and brake pressure. Controlling deceleration
to a stop involves not only operation of the throttle but often
involves modulation and operation of two braking systems, dynamic
brakes and independent brakes. All
of this is done while monitoring speed, engine and brake performance.
For instance, the engineer will also observe the amperage gauge so as
not to bum up the engine or incur rail bum, rail damage and wheel
slippage. She/he will observe the air brake reservoir pressure, the
brake cylinder pressure, the wheel slippage light, low oil lights and
low water lights. Groundsmen,
by use of hand signals and radio (voice) signals, control the
movements of locomotives in yard and terminal operations. These
signals control when a movement is initiated, the direction of the
move, and when it stops, and very often involves commands as to the
appropriate speed for the movement. The decision when to go and when
to stop also involves braking judgments. The groundman
must also, albeit in a more rudimentary way, understand the effect of
train mass and speed and the dynamics of stopping. The groundman must
moderate the engine speed visually and give the engineer sufficient
warning so as to be able to stop without, simply put, crashing into
stuff. Groundsmen also throw switches, identify cars, couple cars,
lace air hoses, set and release hand brakes and bleed brakes. As
to the critical question, to wit, "Is the operation of the remote
control unit (RCU) a matter of control and signaling or is it a matter
of operating the engine?," the Neutral is compelled to conclude
that the evidence supports the proposition that the operation of the
RCU by UTU groundsmen does not constitute an infringement on the
traditionally exclusive duties of an engineer. The critical piece of
equipment is the on-board computer (CPU) and the RCU is just a control
and signaling device that gives commands to the CPU in a manner
consistent with the groundsman's traditional duties to control the
movement of yard engines. It is the CPU that operates the engine, not
the RCO with use of the RCU. Thus, the RCO is not supplanting the
engineer. It is the computer. This
conclusion is based on the detailed evidence in the record as to the
function of the RCU and the function of the CPU. There are many
examples in the record, when coupled with the analysis of the RCU,
that convincingly make this point. First, some background on the RCU
unit controls. To initiate a move, the RCO/groundman decides the
direction of the move. He manipulates an on/off type toggle switch on
the belt pack which signals to the CPU to move forward or reverse just
as if the groundman radioed the engineer to come ahead or move in
reverse. The main knob, on the right side of the machine, has
positions for stop, coast B, coast couple (1 mph), 4 mph, 7 mph, 10
mph and maximum, which could be anywhere from 10 mph to 15 mph. The
manufacturers' preferred way, as set forth in the training manual, to
bring a locomotive to a stop is to use the speed control since when
the speed setting is reduced, the CPU also automatically sets the
independent locomotive brake. There is another knob on the left of the
belt pack for braking should the speed control not be sufficient.
There are preset positions: "release" which is the normal
setting, "low." " medium," "full" and
"emergency" applications for the independent brake or the
train's automatic brake functions should the engine be coupled. The
reductions between setting is in 7 pound increments. It
should be noted, however, this generation of RCU technology does not,
like an engineer with a traditional throttle and brake pedestal,
require a continuous manipulation of the brake and throttle to
maintain a constant speed. It is essentially "set it and forget
it" technology. The RCU also has settings for the bell which is normally automatically engaged
by the RCU. This is a head light switch. Significantly, there is no
feedback given to RCO as to train brake conditions or speed. In sum,
the belt pack does not replicate the controls and associated feedback
devices in the engine. We
now return to one example which, among others, in the record convinces
us that the manipulation of the simple settings on the RCU is just a
different way of signaling the CPU/engineer and not a matter of
operating the engine which is done by the CPU. According to evidence
in the record, the following things happen in the CPU and between the
CPU and the locomotive, all as the result of the RCU simply taking his
hand and moving the speed knob to the 4 mph setting on the RCU. The
CPU reads velocity data from two speed sensors installed on the engine
and decides if the two sources of velocity agree and if not the
computer applies the emergency brakes. If the sensors agree, the
brakes are released. The bell is rung. The CPU compares the velocity
of the sensors to the velocity that is requested by the RCO. If the
velocity of the locomotive is less than the requested velocity the
computer calculates by subtracting the difference. A FED controller
factors in the history of the error between actual velocity and
requested velocity. A calculation is made and the CPU increases the
necessary amount to the throttle as calculated. There is a fail safe
too in that the unit is at a stop and does not begin to move within 20
seconds of the 4 mph request, the computer shuts the engine down
sensing that the engine has stalled, there is too much gradient,
insufficient power or there is some other condition which could burn
out the traction motor. Normally, the engineer would make this
decision based on his observations of the engine's performance
according to various gauges and meters such as the amp meter. The RCO
gets none of this feedback and does not have to make any decisions in
this regard. To
again tread on the treacherous ground of analogies, it could be said
that a traditional engineer operating an engine is like a highly
skilled French chef preparing a seven-course meal from scratch (adding
various combinations of ingredients and cooking them in various ways)
and the RCO in yards and terminals just puts the TV dinner in the
microwave, sets the time and pushes the start button (set it and
forget it). The
Neutral is convinced that the act of the RCO turning a knob to a
preselected setting is indeed like, in essential respects, passing a
hand signal or pushing the button of a radio and relaying a desired
speed.3 The locomotive does not respond by going 4 mph given all the
track and train mass parameters as the sole result of the RCO
turning the knob any more than the traditional engineer operated
locomotive goes 4 mph as the result of a traditional groundman
pressing a radio button and saying "give me 4." In the case
of the traditional engineer-operated locomotive, the train goes 4 mph
as the result of the engineer's various and multiple manipulations to
the electro-motive and braking equipment of the locomotive and in the
case of the CPU-operated locomotive, the train goes 4 mph as the
result of the CPU's manipulations.
3 It is not science
fiction to imagine that with voice recognition technology that a belt
pack could be replaced with a voice-activated controller so the RCO
could control the engine by simply repeating the very voice commands
he used to give to the engineer on the radio. The point here is that
the assertion that the RCU is a signaling device once removed from
oral communications is rock solid. The
Neutral will grant that whether the RCO is acting like an engineer
when he operates the left side of the RCU device or the braking
function is a much tougher call than issues concerning the right knob
or the combination brake and speed side. Several factors ultimately
convince the Neutral that even the RCO's use of the left side in yards
and terminals does not constitute traditional and exclusive engineer
duties. First, its use will be limited. As noted, the speed dial
includes built-in braking applications. Turning the speed from 10 mph
to 4 mph will automatically result in brake applications. Turning the
right hand knob to stop will result in the CPU returning the throttle
to idle and commanding a foil application of the independent brake
which are separate operations on the traditional pedestal. As noted
even by the BLE, this is the preferred manner to control
the train. Second,
the generally more limited speeds in yard and terminal applications
will minimize the need for complicated braking manipulations. It is
also noted the RCO also does not have access to the dynamic brake
available to the on-board engineer. Third, even in the traditional operation, the groundman must have some
basic operating knowledge concerning the dynamics of stopping a train
as opposed to knowledge about the technical application of brakes. He
must give signals to the engineer with adequate and appropriate time
and distance to stop. So even braking decisions are to some degree not
exclusive to engineers. It is also noted that even in the traditional
setting that a groundman while riding in the engine has access to the
emergency brakes. Use
of the left side of the RCU, if needed, requires only a simple
decision as to how much braking force (i.e., low, medium or full) is
desirable and does not involve making decisions about alternating or
simultaneous applications of brake and throttle in relationship to
changes in regular pressure, velocity, track conditions and train
mass. The engineer makes all these decisions while having access to,
and receiving feedback from, the speedometer and all the various
gauges and meters, The CPU makes all these observations and accounts
for them in making
its decisions. Again,
the RCO puts the TV dinner in the microwave and makes simple
decisions. The RCO, unlike the engineer, is not making decisions about
ingredients, how to mix them or how to cook them. The RCO makes a
decision on what result he wants—to go, speed up, slow down, or stop
and is not making decisions how to operate the engine in order to get
it to comply. This has always been part of the groundsman's duties. The
groundman has not stepped outside his traditional shoes. The CPU, the
PID controller and its programmed logic are now making all the
decisions and operational adjustments for the engineer. The computer
is the composite of all the engineer training and experience its
designers could muster. The engineer has truly been replaced by the
CPU and, as a result, the technology has dispensed with the need for
an engineer. The darn computer even rings the bell. It
is unfortunate, but by no means unprecedented, in this industry that
technology has been the basis for work elimination. Many crafts, for
many years, and more so recently have felt the brunt of this sobering
reality. Radio telemetry devices eliminated the need for cabooses and
thus the need to have trainmen there. Direct data-inputting technology
allowed for the elimination of clerks who used to enter switching data
into computers. Instead of switchmen writing switching and car
information on a piece of paper and handing it to the clerk to input,
it became possible for switchmen to input the data directly into a an
electronic note pad which puts it into computer-usable form. Advances
in technology do eliminate work. The instant development is not just a
matter of making work easier. It is a matter, in yards and terminals,
of making work disappear. The BLE has been fortunate not to have been
a victim of technology since the Diesel Agreement eliminated the need
for helper engineers in coupled engine units. But technological
advances have caught up with this, the most highly skilled craft in
the industry, at least in yards and terminals which is all this
Neutral is faced with. 5.
The Implications of Work Elimination In
the absence of a written agreement(s) or practice unequivocal,
consistent, and mutually recognized to a sufficient degree that it
rises to a level of being contractually binding, the Carrier retains
the discretion to make these assignments as it deems appropriate
including making agreements with the UTU. The
Carrier's agreement with the UTU to have UTU members fill RCO
positions in yards and terminals and have their wages, hours and other
terms and conditions governed by that agreement does not violate the
BLE National Agreements because it does not involve the reassignment
of duties and responsibilities that are exclusively reserved to
engineers by express contract language and/or custom and practice. The
BLE National Agreements do not restrict the assignment of these duties
in terminals to a newly created position of remote control operator in
the UTU bargaining unit. Moreover, the BLE agreements do not restrict
the Carrier from adopting this technological device which eliminates
work and dispense with the need for employees. The
BLE did argue that the parties' past practice has been to bargain over
the introduction of new technology that involves craft manning and
scope issues. It suggests too that the Carrier tried to bargain on
this issue and failed in 1999. The Chairman, however, is not persuaded
by this argument. Bargaining has indeed incurred in the past over
technological issues in many crafts in this industry. However, the
fact that compromises have occurred in the past in other complex and
materially distinguished circumstances cannot prejudice the position
of the Carriers, or for that matter, the BLE, in this issue. Both the
Carriers and the BLE are entitled to have the base question, of
whether engineer work is being done by the RCO or whether it has been
eliminated, addressed on its own merits. Of course, if engineers'
exclusive duties were being performed by the RCO, bargaining to alter
this would indeed have to take place. With respect to the Carrier's
1999 Section 6 Notices, they are not material to this specific
dispute. The particular language of the Section 6 Notice in question
was a general "pie-in-the-sky" initial proposal served by the Carriers on all
the crafts. The proposal in effect represented a request to have each
of the Unions agree to eliminate all restrictions and allow the
Carrier to do whatever it wanted. The proposal was obviously rejected. It
is of some comfort to the Neutral, but not controlling, that the RCO
position in terminal operations when personified looks much more like
a groundman than an engineer.4 An RCO, like a groundman,
still spends most of his time on the ground. The RCO, like a groundman,
judges the direction and speed of train movements from the ground. He
still throws the switches, couples cars, handles air hoses, sets and
releases hand brakes and bleeds air brakes. That
being an engineer is not the same as being an RCO is demonstrated too
by taking note of Federal Railroad Administration (FRA) training
requirements. Engineers train for at least 20 weeks (and sometimes up
to 12 months or more). RCO training, by contrast, is currently only
two weeks. Engineers are trained in a variety of subjects that RCOs learn
nothing about, such as the different uses and combinations of the
various brake mechanisms, foci conservation, dealing with slack, and
operations on steep grades. When the FRA required the Carriers to
establish new training programs for RCOs, it specifically stated that
existing engineer programs would not be appropriate because
"introduction of remote control operations is a significant
departure from traditional on-board locomotive operations." In
sum, less is required of an RCO to be certified by the FRA. Moreover,
holding an engineer's certification under FRA regulations does not
quality an individual to be a RCO. ________________________________________________________________________________________________ 4
It
is in this regard that the BLE argued extensively, forcefully and
persuasively that the dispute is not over all the RCO work (the sum of
the job) but whether the portion of the RCO's job involving control of
the RCL is a matter of doing engineer's work. On this point the BLE's
analytical framework is supported by the Canadian Award. Arbitrator
Picher, after observing he was impressed with the degree that the new
RCO position (north of the border it was called "yard operations
employee") encompassed the prior duties of the switchman, he
stated: "The above finding would not, of itself, be an answer
to the grievance if In fact, any significant part of the assignment
performed by the yard operations employee could be said to be work
falling within the exclusive jurisdiction of locomotive
engineers." ____________________________________________________________________________ The
Neutral also does not find it controlling that the FRA and/or Carriers
hold RCOs responsible for errors and are subject to decertification
and/or discipline. The fact there is accountability does not mean the
RCO is doing the engineer's work. The RCOs accountability is more
limited as his responsibilities are more limited. That Carriers may
have held RCOs more accountable than they should have (more in line
with an engineer) does not wag the dog. There
are a couple ancillary national issues which must be addressed. The
first is the UTU's request that the Neutral should clarify that RCOs
may operate RCUs from inside the locomotive cars. This relates to the
more recent litigation (October 17,2002) concerning whether the
January 16,2002 injunction applied in circumstances where RCOs operate
from inside the cab. The BLE and Carriers agreed to an order—without
prejudice to any parties' position in arbitration—that pending the
outcome of SBA No. 1114, RCOs should as a general matter spend their
time on the ground except in emergencies. However, the every day
practical reality is that even in the traditional engineer-operated
model, there are circumstances where groundsmen are in the cab of the
locomotive for legitimate operator reasons, whether it be for safety
reasons or matters of significant practicality and/or compelling
convenience. Nothing more than a recognition that such circumstances
occur in the traditional engineer/groundman model is appropriate or
necessary in this award except that Carriers should act to limit the
RCOs' presence on engines to those past circumstances where it has
been an accepted operational practice. There
is one aspect of the "RCO in the cab" issue that warrants
comment. According to at least one of the BLE declarations (page 9 of
the BLE Exhibit 49, volume 1 H): there have been occasions where one
RCO sat in the cab and received radio direction from another RCO on
the ground. The RCO in the cab then moved the locomotive according to
the direction of the on-ground RCO. This is troubling, not for the
fact that a RCO is in the cab, but for the fact than a RCO on the
ground is not directly controlling the movement but giving control
commands to the RCO on the engine. This then does arguably put the
other RCO in the shoes of an engineer and would be impermissible
unless there was an emergency such as the on-ground RCO's transmitter
not functioning. All members of a ground crew should have transmitters
and utilize the pitch and catch features rather than one RCO utilizing
a single transmitter to control the movement based on verbal signals
of another groundman. It may be helpful to note another line of
demarcation illustrated by (page 7 of the BLE Exhibit 49, volume 1 H):
RCOs should not convert to conventional operations. The last ancillary issue is whether RCO
operations may be used on "road switchers, locals and other
comparable assignments?" The Carrier framed this question in its
opening statement to the Board, It was stated : So
the Carriers' question presented comes down to this: May then, the
Carriers, assign the remote control operator positions to train and
ground crew employees on yard engines, road switchers, locals and
other comparable assignments. That's the universe of the operations
that you're dealing with. While
this formulation follows the language of the RCO agreement between the
Carriers and the UTU, it could be construed to be a somewhat different
or broader issue than presented to the Neutral in attachment
"A" of the agreement to arbitrate. Indeed,
the BLE expressed concern over the "quantum leap" from
defined yard operations (such as automated humps) to road switchers
which they view as just another form of freight service. In
such circumstances, the BLE noted, such trains are sometimes in
geography where movements are governed by wayside signals and a
trainman would not give a signal to effectuate a move. It
is noteworthy that this is not the first time the parries have tripped
over the possible chasm between the language in of the letter of
intent (and subsequent finalized agreement) concerning locals and road
switchers and the idea that remote control operations would take place
in the terminals. Terminals or terminal limits as distinguished from
switching limits, define the area in which crews must observe yard
operating rules and speed limits. Road switchers and locals are not
necessarily limited to terminals. The
parties have had some revealing discussions about
"terminals," and the fact that the UTU letter of intent
covered road switchers. Indeed, in the January 16, 2002 hearing in
federal district court concerning the terms of the injunction the
Carrier sought to convince the court to use the language of the letter
of intent which references "road switchers, locals and other
comparable assignments." The BLE objected that this went beyond
the focus of that litigation as evidenced by the Carrier's filings.
After some discussion on the possibility of limited excursions outside
terminal limits, the court refused to base the terms of the injunction
order on the language of the letter of intent. However, to allow for
what the Chairman would describes as minor excursions, the court
adopted the following key phrase to describe the scope of the
injunction (it applied to disputes): "concerning the plaintiff s
use or plans to use remote control technology in the operation of
locomotives in their terminal operations in and around terminals, or
work assignments in connection therewith." The
Chairman indeed shares the BLE's and perhaps FRA's concern about the
Carriers trying to possibly parlay this dispute into a blank check to
operate all road switchers and locals via remote control regardless of
whether they operate in terminals.5 Road operations arc not
'move' intensive and are not as highly characterized as are yard and
terminal operations by groundman command of the train. There is the
issue of speed as well which raises a host of questions as to just how
much decision making an RCO would be making about braking operations
in the conduct of assignments outside terminals and how this
interfaces with custom and practice. There may be other legitimate
questions. _______________________________________________________________________________________________________________ 50n
October 10, 2002, in a letter to the American Association of
Railroads, the FRA's associate administrative for safety stated: "Except
for minimal light freight movements within the immediate vicinity of
yard areas, FRA does not believe that the current state of RCL technology or the current state ofRCL operator training programs are
suitable to support RCL operations on main tracks. Some examples of
main track operations "would be intra-yard transfer movements;
local freight service; relieving outlawed trains, etc. Of course FRA will continue to •work "with the railroad industry to further
explore this issue. " ___________________________________________________________________________________________________ Nonetheless,
the Neutral makes no specific finding regarding the use of RCOs,
locals and road switchers other than that subsumed by the framing of
the questions before the Board. In this
regard, the Neutral notes that all three parties framed their issues
in the Arbitration Agreement in terms of remote control operations in
the "terminals." Any questions about the type of assignment
which can be operated by remote control with an RCO can be resolved
based on the natural implied boundaries of the questions submitted to
the Neutral. If
a local or road switcher is confined to terminal limits, it
contractually can be operated by an RCO. The Neutral is specifically
constrained in Section 14 of the Arbitration Agreement to limit itself
to the questions specifically submitted to it. Clearly, the issue
presented to the Neutral was not necessarily whether the broad
language of the Carrier's agreement with the UTU violated the BLE
agreement, but it was more discrete and limited to questions
concerning the priority of the assignment UTU represented RCOs to
perform remote control operations in and around terminals. C.
INDIVIDUAL PROPERTIES The
BLE, in addition to its contentions regarding National Agreements and
practices, provided separate submissions on a property-by-property
basis. It contends these separate treatments of individual rules and
practices also establish that the BLE position should be sustained
locally. It submits that because the existing agreements and
established practice create an exclusive right for locomotive
engineers to operate locomotives in connection with the movement of
cars or trains in terminal operations, the Carriers' assignment of
other operating craft personnel to do that work via remote control is
improper. The
individual property presentations and the Carriers' related replies
are as extensive, if not more extensive, than the National Uniform
Rule and practice presentation. This is understandable since several
of the individual properties have as many as six sets of agreements
with as many separate bargaining committees each related to
predecessor railroads which had been subsumed by multiple mergers. The
Neutral acknowledges that the arguments on the individual property and
sub-property presentations touched on, among others and not limited
to, the following subjects: (1)
BNSF (a)
Former Atchison. Topeka and Santa Fe: The June 1 , 1 982
Agreement; October 1, 1986 Agreement; Correspondence/Understandings
1992 Concerning Black Boxes (b)
Former Frisco Road: Article 2, Section A (
c) Chicago.
Burlington and Quincy: 1971 Correspondence/Understandings
Concerning Low Speed Speed Regulators; 1988
Correspondence/Understandings Concerning Low Speed Speed Regulators in
Havelock, Nebraska; Article III of the 1964 National Agreement as
applied on the property; Public Law Board 5464 Award 1 1; Mediation
Agreement A-4359 (d)
Great Northern Railway: Rule 7 1 ; Rule 22-2; Rule 23;
Rule 8; Rule 86; January 12, 1943 Memorandum of Agreement (e)
Spokane. Portland and Seattle; Rule 42(u) (f)
Northern Pacific Railway; May 1. 1955 Memorandum; Article HI, Section
2 of the 1964 Agreement; October 12,1971 ( Correspondence (2)
CSX TRANSPORTATION. INC. (a)
Louisville and Nashville Railroad: Article 26, Section
13 of the January 1, 1976 Agreement (b)
Seaboard Coast Line Railroad: Article 250') of the
September 1, 1975
Agreement (
c) Chesapeake
and Ohio Railway: Rule 27; the CSXT Operating Rules (d)
CSXT Northern Lines: Article 31, Rule 3, Award No. 1 of SBA 907,
Award No. 144 of Public Law Board No. 1305 (3)
KANSAS CITY SOUTHERN AND NORFOLK SOUTHERN (a)
KCS May 1,1973 Schedule (b)
NS Northern Lines: Article 2; Article 7; Article 33; Appendix 1
to the
July 1, 1999 Agreement (c)
Alabama Great Southern Railroad: Article 29 (d)
Central .Georgia-Railroad: Article 4; Article 3 4 (e)
Cincinnati, New Orleans and Texas Pacific: Article 29;
Article TIT, Section 2 (f)
All Properties: Various Operating Rules and an analysis
of engineer and RCO responsibilities (4)
UNION PACIFIC RAILROAD COMPANY (a)
Northern Region: Rule 13 of the December 1,1955
Agreement; Rule 8 of the December 15,1954 Agreement; Article I (c) and
Article II ( c) (b)
Eastern District: Rule l(d)(3) of the May 1,1954 Schedule; May
1, 1954 Schedule and Rule 117(e); Rule 53( c) and (d) (c)
Central Region: September 3, 1981 Agreement (d)
Western Region: Article 47 of the February 16,1943
Agreement; Correspondence Concerning July 6,1983 Section 6 Notice;
Article 33 of the 1958
Agreement; the 1977 Merger Agreement; Rule 127, Rule 76 of the January
1,1977 Agreement; Appendix 21, Section l(d) of the
April 20,1968 Agreement (e)
Systemwide: The May 31,1996 System Agreement Attachment
(d) Concerning Peer Training In
spite of the detail in the separate submissions, a close study of the extensive
arguments reveals that these agreements all fall into one or more of
the following categories: (1) They extend
preference to engineers for engineers as did General Order No. 27,
which has already been addressed by the Neutral; (2) they /are a
derivative of or similar to the 1944/45 Diesel Agreements which says
existing or exclusive duties of engineers cannot be assigned to others
which has already been addressed by the Neutral; (3) they assume
engineers work still exists and has not been eliminated and therefore
beg the question; (4) they involve different technology and
recognition by a particular Carrier whom agrees it merely assisted the
engineer and did not replace him; (5) they involve seniority rules
which distinguish a yard engineer's entitlement to yard work based on
intra seniority (i.e., versus road seniority) considerations rather
than inter craft jurisdiction; (6) agreements that are clearly based
on timing did not and could not contemplate remote control technology;
and (7) a few agreements which are too equivocal and thus do not
support the BLE claims. D.
VOTE The
Chairman votes as follows: 1.
The BLE statement of the issue is answered in the negative. 2.
The UTU's question at issue is answered in the affirmative. 3.
The Carrier's question at issue is answered in the affirmative. Each
of the partisan members of the Board will serve his vote upon all members
of the Board within 5 business days of the issuance of the neutral
member's vote and, in the event a majority exist, the majority vote is
adopted and ordered as the AWARD of this Board pursuant to its
authority under the Arbitration Agreement and Section 3, Second of the
Railway Labor Act, 45 U.C.S. Section 153, Second. Consistent with
Section 16 of the Arbitration Agreement, the Award shall become
effective 14 calendar days after a majority vote is established or a
deadlock is broken under the procedures outlined in the Arbitration
Agreement, and shall be final and binding on the parties, subject to
the provisions of the Railway Labor Act, with respect to the matters
covered.
Gil Vernon, Chairman and Special Board of Adjustment No. 1141 Dated this 18th
day of January 2003.
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