1 SPECIAL BOARD OF ADJUSTMENT NO. 1141 Between 2 BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY, CONSOLIDATED RAIL CORPORATION, 3 CSX TRANSPORTATION, INC., KANSAS CITY SOUTHERN RAILWAY COMPANY, 4 NORFOLK SOUTHERN RAILWAY COMPANY, and 5 UNION PACIFIC RAILROAD COMPANY And Their Employees 6 Represented By BROTHERHOOD OF LOCOMOTIVE ENGINEERS 7 And Their Employees Represented By 8 UNITED TRANSPORTATION UNION 9 STENOGRAPHIC REPORT OF PROCEEDINGS 10 had at the arbitration of the above-entitled 11 matter, held at the Palmer House Hotel, 17 East 12 Monroe Street, Crystal Ballroom, Chicago, Illinois 13 on November 19, 2002 commencing at 9:00 o'clock 14 a.m. 15 BEFORE: ARBITRATION PANEL 16 Mr. Vernon Gil, Arbitrator 17 Mr. James McDonnell, Arbitrator 18 Mr. Don M. Hahs, Arbitrator 19 Mr. Byron Boyd, Arbitrator 20 Mr. Robert Allen, Arbitrator 21 22 23 REPORTED BY: Brenda S. Tannehill, CSR, RPR 24 LICENSE NO. 084-003336 206

1 APPEARANCES: 2 SHEA & GARDNER 3 BY MR. RALPH MOORE and 4 MR. DON MUNRO 5 1800 Massachusetts Avenue, NW 6 Washington, DC 20036 7 (202) 828-2000 8 for the Railroad Carriers; 9 10 ZWERDLING, PAUL, LEIBIG, KAHN & WOLLY 11 BY MR. MICHAEL WOLLY 12 1025 Connecticut Avenue, NW, 712 13 Washington, DC 20036-5420 14 for the Brotherhood of Locomotive 15 Engineers; 16 17 UNITED TRANSPORTATION UNION 18 BY MR. CLINTON J. MILLER, III 19 14600 Detroit Avenue 20 Cleveland, Ohio 44107 21 (216) 228-9400 22 for the United Transportation Union. 23 24 207

1 ALSO PRESENT: Carriers 2 James C. Oppenheimer, Shea & Gardner Fred Horst, Canac 3 John Quilty, BNSF Railway John Fleps, BNSF Railway 4 Milton Siegele, BNSF Railway Charles Shewmake, BNSF 5 Kenneth O'Brien Gail Evans, NRLC 6 Kenneth R. Peifer, CSXT John Hennecke, NRLC 7 Howard S. Emerick, CSXT Kenneth Gradia, NRLC 8 Mark R. MacMahon, Norfolk Southern Railway 9 Joanna Moorhead, NRLC John Marchant, UPRR 10 Larry Breeden, UPRR William Loomis, UPRR 11 Dick Meredith, UPRR Richard Gregory, UPRR 12 A. Terry Olin UPRR Kathleen A. Alexander, KCS 13 Peggy Grosskopf, UPRR 14 BLE John Tolman 15 Tom Stoltz, Kansas City Southern Tim Donnigan, UPRR 16 Larry W. Sykes, NS No. Lines Dennis R. Pierce, BNSF-BN North lines 17 Stephen Speagle, International VP Don M. Menefee, CSXT Northern Lines 18 Randall Pinson, CSXT Western Lines Bruce D. MacArthur, Union Pacific 19 Northern Region Edward Rodzwicz, International 20 Division Carl W. Field, IHB Railroad 21 Richard Radek UTU 22 Rick Marceau Carl Vahldick 23 Frank Wilner Paul Thompson 24 Daniel Johnson Clint Miller 208

1 THE CHAIRMAN: Good morning, everybody. We are 2 prepared to listen to the UTU's case in chief. 3 MR. MILLER: Good morning, Mr. Chairman, 4 Professor McDonnell and Board members. 5 My name is Clint Miller. I'm General 6 Counsel to the United Transportation Union. 7 To begin with, I'm reminded of a time many 8 years ago when I saw an interview with John Kenneth 9 Galbreadth on PBS about his service as a hearing 10 officer on the Wage Price Control Board during 11 World War II. 12 Of course any increase in wages or prices 13 had to be approved by that board after a hearing, 14 and he said that he found the justification for the 15 increase was usually inversely proportional to the 16 size of the submission supporting it. 17 As I look at the head table today and I 18 see the virtually half-wall of submissions in front 19 of the Board, I want to remind the Board that UTU 20 contributed at least to that half-wall, and I'm 21 hopeful the Board will keep this in mind when 22 considering this. 23 Mr. Chairman, under Section 3 of the 24 Railway Labor Act and the decisional law that is 209

1 cited in our submission, this board has sole 2 jurisdiction to interpret and apply agreements and 3 it must resolve all claimed conflicts in those 4 agreements in this proceeding under the precedent 5 of the telegrapher's case. 6 The District Court also found that in its 7 opinion, an order in issuing the strike injunction 8 against the BLE that's attached to our opening 9 submission as Exhibit 5. 10 It is therefore difficult to believe that 11 the BLE dismisses UTU's first argument as no 12 argument at all. 13 The BLE has provided no agreement that 14 even contains the words "remote control," let alone 15 one that grants it jurisdiction over remote control 16 operations. 17 The UTU has produced a fully-ratified 18 agreement addressing all aspects of remote control 19 operations that we attached to our opening 20 submission as Exhibit 4. 21 It is not the auspice of this board to 22 decide with whom the carriers should negotiate but 23 rather to interpret and apply agreements already 24 negotiated. On that basis, the UTU has a remote 210

1 control agreement and the BLE does not and this 2 case should be over under the precedent cited in 3 our opening submission. 4 The BLE does not address this argument 5 except to dismiss it out of hand because it cannot 6 adequately address it. 7 Assuming for the sake of argument that the 8 presence of a remote control agreement in the 9 agreements that UTU holds does not fully answer 10 this case as we say it does, a comparison of the -- 11 it is clear from the NCCC submissions and argument 12 yesterday that the work of remote control operators 13 has not been reserved exclusively to the craft of 14 engineers. 15 General Order 27 gives locomotive 16 engineers a preference for assignment as engineers. 17 And the Diesel Agreements only guarantee the work 18 of engineers will not be assigned to others. 19 BLE's arguments on this point are premised 20 on the erroneous assumption that remote control 21 operators do work that has been exclusively 22 reserved to engineers, an assumption thoroughly 23 deconstructed yesterday by the NCCC presentation. 24 The UTU did not undertake the thorough 211

1 analysis of the NCCC, but it has also established 2 this point with the Marceau and Vahldick 3 declarations that were attached to the opening 4 submission at Exhibit 6 and Exhibit 7. 5 You know, the nature of yard work has not 6 changed significantly over the many years of 7 railroad operations in this country. Yardmen, yard 8 conductors and yard helpers have for the last 50 9 years done exactly what they do today. The 10 physical plant in yards hasn't changed all that 11 much, switchmen still line switches, couple and 12 uncouple cars, marshal cars for different 13 destinations, make up outbound trains and service 14 the industries by switching cars in and out. What 15 has changed in yard operations is the technology to 16 accomplish these tasks. 17 When most of the people in this room who 18 have worked for railroads and been employed by them 19 in the operating crafts went to work, when many of 20 them went to work, those tasks were accomplished by 21 switchmen giving hand signals or lantern signals to 22 engineers on locomotives who then moved the engine 23 in response to the signals. The locomotive was not 24 moved until a signal was given by ground service. 212

1 And that's still true today. 2 It is not correct to say as BLE did that 3 lanterns don't move trains. They do. If you don't 4 get a lantern signal at night, you don't move, the 5 throttle doesn't open. 6 In the 1970s, portable radios were 7 introduced and became part of all switching 8 operations. The portable radios did not change the 9 way the work of switchmen was done. 10 What did change was the method of 11 communicating those signals to the engine to begin 12 its movement. Now the signals to move and stop the 13 locomotive were transmitted by voice rather than 14 hand or lantern signals. 15 Remote control is just another step in 16 technology. That is the remote control technology 17 involved here. Now instead of giving hand or 18 lantern or radio signals to control the movement of 19 the locomotive, electronic signals are transmitted 20 to a microprocessor, a computer on the engine, 21 which then performs the work that was formerly done 22 by the locomotive engineer. 23 Nothing has changed in the switching 24 operations on the ground service side, only the 213

1 method of signaling the movement of the locomotive 2 has changed. 3 And that's something that's important to 4 keep in mind because it's not the opening of the 5 throttle that moves trains, it's the signal from 6 the ground to commence the movement. And when the 7 RCO signals the movement now, he or she doesn't 8 open the throttle, the microprocessor does that. 9 Indeed the District Court in its opinion 10 which was UTU Exhibit 5 -- and we quoted it at the 11 top of Page 9 to our brief -- found that BLE has 12 provided no examples of past practice involving the 13 assignment of remote control technology. They 14 didn't do it in court and they haven't done it 15 here. 16 Remote control technology has only been 17 assigned per agreement with the United 18 Transportation Union. There are no examples of 19 past assignments of remote control technology, nor 20 does the BLE hold an agreement which even uses 21 those words. 22 The BLE has also failed to make a case for 23 distinguishing the Picher award other than the 24 facts there occurred in Canada because the ros des 214

1 addenda of that case is exactly what the reason for 2 a decision here should be. It doesn't make much 3 difference as to what the actual physical 4 characteristics of the yard were, the point was and 5 what Arbitrator Picher was concerned about in 6 making his decision was whether the remote control 7 operators were performing work exclusively reserved 8 to engineers where the BLE had essentially the same 9 arguments based upon the same or similar conditions 10 in Canada under their agreements, and he decided 11 that it did not involve work exclusively reserved 12 to engineers because that work, the work that had 13 been exclusively reserved to engineers, was now 14 being performed by the microprocessor, the computer 15 on the train. 16 The little Beltpack doesn't cause the 17 movement. That only sends a signal and it's just a 18 different way of signaling engine movement than 19 used to be done with radios, lanterns and hand 20 signals. 21 The microprocessor does work exclusively 22 reserved to engineers, the remote control operators 23 do not. 24 Moreover, BLE made the point that I think 215

1 was an illegitimate point yesterday that when an 2 engineer performs a bad movement, the engineer is 3 disciplined. 4 As everyone in this room that has been in 5 this industry knows, in most cases where an 6 engineer makes a bad move and is noticed for 7 investigation, the conductor is right there with 8 the engineer because the conductor is in charge of 9 the train, the conductor is in charge of the 10 movement, the train doesn't move until the signal 11 is given from the ground. 12 Moreover, UTU submitted with its reply 13 submission the second declaration of Rick Marceau 14 which again addresses this concern of the BLE that 15 the remote control operators are doing work 16 exclusively reserved to engineers. 17 BLE's argument would make more sense if 18 what was involved were the antique throttle and 19 brake replication systems that the NCCC expert said 20 exists there today because in those situations, the 21 Beltpack so to speak is actually opening the 22 throttle and is actually applying the brakes. 23 But those systems are not involved here. 24 They lack the sophistication and they're entirely 216

1 dissimilar from the microprocessor-based, 2 software-driven state-of-the-art remote control 3 locomotive equipment that's used by employees 4 working under the jurisdiction under UTU's 5 agreement, and that was made crystal clear 6 yesterday by the inventor of the device that is 7 most commonly used. 8 Those old throttle and brake boxes merely 9 transmitted radio signals that ordered throttle and 10 brake controls on board the locomotive to imitate 11 the positioning on the box that was on the ground. 12 For example, if a throttle switch were put 13 at position 4, the throttle switch on the engine 14 would be at position 4. The entire BLE case, as I 15 say, would make more sense and is indicative of 16 earlier generations of remote control equipment 17 that are not at issue here today. 18 The equipment that the carriers have 19 purchased automatically modulates locomotive 20 throttle and braking systems to maintain a desired 21 speed regardless of grade or tonnage. For example 22 if a remote control operator intended to move any 23 one of the four preprogrammed speeds, 4, 7, 10 or 24 15 miles an hour, the operator merely advances the 217

1 speed selector switch to the desired speed and the 2 microprocessor releases the brakes and constantly 3 makes adjustments to the locomotive-powered braking 4 system in response to changes in draft or buff 5 forces, trade gradient or related conditions, 6 thereby maintaining the selected speed, but it's 7 the microprocessor that's doing that, not the 8 groundman. 9 The process is reversed to stop the 10 locomotive. The engine bell automatically sounds 11 prior to any movement without the involvement of 12 the remote control operator. 13 The wheel slippage and wheel slide are 14 monitored and controlled by that microprocessor. A 15 snow switch activates sensors that prevent buildup 16 of ice and snow on the brakes. 17 And a global positioning system and 18 transponders can automatically stop the equipment 19 short of obstruction, signal, end of track or 20 limits of track authority, and all of those require 21 action on the part of an operator during 22 conventional operations and none of them require 23 action by any operator in the current state of 24 remote control locomotive operations. 218

1 A remote control operator who wants to 2 couple a remote control locomotive to a standing 3 car only has to position the speed selector switch 4 to a coupling speed and when the coupling is made 5 rotate the speed selector switch to the stop 6 position. 7 If desired for some reason such as to 8 couple an air hose, the independent brake override 9 selector switch might also be rotated to the full 10 application position. The microprocessor attends 11 to any feathering of the independent brake or 12 adjustments of the throttle as necessary to control 13 and maintain the desired speed. 14 It's important to remember that the 15 functions performed by locomotive engineers in 16 traditional operations concern the physical 17 operation of a locomotive, not the actual movement 18 of the train. The actual movement of the train is 19 governed by the signals given from the ground to 20 the engine as to what direction and at what speed 21 to move. 22 Nothing has changed except the method of 23 communicating those signals from the ground to the 24 engine to commence the engine movement. 219

1 BLE truly doesn't behave as if it does 2 have an exclusive right to remote control 3 operations, and all you have to do to learn that is 4 to look at their Section 6 Notices. They're not 5 merely confirmatory as the BLE argues, they don't 6 say that they're merely confirmatory, but they're a 7 clear indication under the precedent of this 8 industry that BLE does not have remote control 9 operations locked up, particularly when 10 consideration is given to every award that's ever 11 been rendered considering this point in this 12 industry and particularly the Zumis award which is 13 quoted at Page 39 of the carriers' reply submission 14 and is attached to the carriers' reply submission 15 as Exhibit 161. 16 And it bears repeating, evidence that no 17 such rule exists is the fact that the organization 18 has twice over the past 12 years submitted Section 19 6 Notices under the Railway Labor Act to seek what 20 the organization now claims it already has. 21 And then the language that was so much a 22 part of the presentation yesterday, absent a 23 strong, clear and unambiguous proscriptive rule 24 coupled with two attempts by the organization 220

1 through Section 6 Notices to acquire such a rule 2 compels the finding that this claim must be denied. 3 BLE doesn't cite any Railway Labor Act 4 awards because all of the Railway Labor Act awards 5 are against it on this point. 6 Instead, it cites awards under the 7 National Labor Relations Act which are irrelevant 8 given the different character of the two acts. 9 As the Board knows, under the National 10 Labor Relations Act, agreements expire, they go out 11 of existence, they are time limited by whatever the 12 parties agree to. At the end of that expiration, 13 not much survives except perhaps the obligation to 14 arbitrate with respect to events that occurred 15 during coverture, but they expire after two years, 16 three years, four years or whatever the stated 17 period is. 18 Under the Railway Labor Act, agreements 19 never expire, they are perpetual in nature, subject 20 only to change that commences with the filing of 21 the Section 6 Notice. 22 This explains the stark difference between 23 the two sets of awards. 24 Under the Railway Labor Act, you have 221

1 collective rights and you continue to hold them 2 until change. If you do not hold them, your filing 3 of a Section 6 Notice is indicative that you need a 4 change to get what you don't have and what your 5 Section 6 Notice tells everyone that you do not 6 have, hence the reasoning of the board awards under 7 the Railway Labor Act and particularly that 8 language from the Zumis award. 9 Additionally, the BLE talked a little bit 10 about the FRA certification, and it's true that the 11 FRA does require certification of remote control 12 operators, but the FRA in discussing remote control 13 operations -- and we attach that to the Marseau 14 declaration as Attachment A to Exhibit 6 -- the FRA 15 made it very clear that remote control operations 16 are different in kind. And that's exactly why 17 we're here. 18 They only require a couple of weeks of 19 training. Why? Because the operator doesn't have 20 to learn anything about feathering, the operator 21 doesn't have to learn anything about the methods of 22 actually hands-on handling of the locomotive 23 because they don't do it, the microprocessor does 24 it. 222

1 Mr. Chairman, I started out life in this 2 industry as a non-operating craft lawyer 3 principally and chiefly for the clerk's union which 4 was known as BRAC at the time, and there's nothing 5 new under the sun and particularly on the point of 6 automation or technology changing the method by 7 which work is accomplished. 8 I think it's safe to say and I doubt 9 whether anyone would disagree that the clerk's 10 union has always had among the strongest scope 11 rules in the agreement. Nobody can touch that 12 computer unless they hold clerical seniority. 13 Yet in award after award that we have 14 attached to our opening submission and we discuss 15 at Pages 13 to 16, in award after award, 16 arbitrators routinely, commonly hold that when 17 another craft -- and the cases that we've cited 18 include operating crafts, shop crafts and the 19 yardmaster craft -- when those crafts use the 20 computer exclusively reserved to the clerks as to 21 work on the computer to input information or data 22 that they used to input by another method that the 23 clerks' agreement is not violated. 24 The same thing is true here. The method 223

1 of work accomplished by the ground service 2 employees has not changed, only the method of its 3 accomplishment has changed. And what has changed 4 it most critically and most critically as far as 5 the BLE is concerned is the invention of this 6 particular type of remote control locomotive 7 operations microprocessor. The computer does the 8 work that is exclusively reserved or has been to 9 engineers. 10 I do want to take the time, Mr. Chairman, 11 to pass out to the Board and do this in the 12 opening -- I've discussed it with counsel for the 13 Brotherhood of Locomotive Engineers and the NCCC, 14 and it's an additional exhibit that I'd like to put 15 in with the consent of the other counsel that was 16 not available at the time that the submissions were 17 due. 18 What it is is the court order on the 19 request of the BLE to issue an injunctive relief 20 against use of the horn, bell or whistle by remote 21 control operators when they're inside the 22 locomotive cab. 23 If I may, I'd like to pass it out to the 24 Board. 224

1 THE CHAIRMAN: Sure. 2 MR. MILLER: The second page is the actual 3 order that was on -- as is explained by the clerk 4 at law firm who sent it, it is the actual minute 5 order on consideration of this question, and the 6 reason I think it's important is that the Court 7 made clear in denying relief to the BLE that as it 8 says in the last paragraph, this ruling is limited 9 to a construction of the language of the agreed 10 order, that is the agreed order between the NCCC 11 carriers and the BLE. 12 The Court expresses no opinion on the 13 merits of the parties' disputes which are scheduled 14 to be addressed in arbitration in the immediate 15 future. 16 In other words, it's up to this board to 17 decide the main question, that is, whether or not 18 the carriers were proper under the existing 19 agreements and practices to assign the work of 20 remote control operations to employees represented 21 by UTU. 22 And also, we would like clarification of 23 the subsidiary issues which the BLE has raised with 24 the Court and which the Court has clearly given to 225

1 this board, and that is whether the remote control 2 operator may ride in the locomotive cab while 3 engaged in remote control operations which the 4 agreed order prohibits but which is reserved to 5 this board for ultimate decision and whether 6 incident thereto the horn, bell or whistle may be 7 used. We think that's clearly the case. 8 As was made clear in the Marceau 9 declaration attached to our original submission, 10 our opening submission, there are times in yard 11 operations now when ground service employees ride 12 in the locomotive cab either because it's the best 13 way to guard the point, because of a physical 14 configuration of a particular move, to stay out of 15 inclement weather, and they ought not be prohibited 16 from riding in the cab when they have the Beltpack 17 to any more significant degree than they ride in 18 the locomotive now. 19 They give orders to the engineer from the 20 locomotive cab now and they're just doing the same 21 thing with the remote control Beltpack. 22 I think, Mr. Chairman, to sum up, that the 23 BLE's case fails because the BLE has failed to 24 produce any agreement with the National Carriers 226

1 Conference that even contains the words "remote 2 control." It certainly does not establish a right 3 to jurisdiction over remote control. 4 It's failed to explain why it has 5 consistently sought jurisdiction over remote 6 control operations by repeatedly filing Section 6 7 Notices with the NCCC carriers, none of which were 8 successfully handled when if the BLE actually had 9 jurisdiction over remote control operations, no 10 such Section 6 Notices would have been necessary. 11 They say they did it in defense, that Fred 12 Arden started serving notices back in 1984. And 13 I'm sure that Fred would be disappointed that it 14 took 18 years to successfully conclude those 15 negotiations, but the point is the UTU concluded 16 the negotiations and has an agreement. 17 What the BLE wants is for this board to 18 give it by an arbitration award that which it has 19 been unable to obtain in negotiations in the face 20 of the UTU's fully-negotiated agreement that has 21 been fully ratified and covers all aspects of 22 remote control operations. 23 And the BLE has also failed to demonstrate 24 that any of its agreements prohibit yardmen from 227

1 performing their traditional duties by means of the 2 new remote control technology. 3 With that, Mr. Chairman, UTU would ask 4 that the carriers' and UTU's question at issue be 5 answered in the affirmative and that BLE's question 6 at issue be answered in the negative and that this 7 board clarify that remote control operators may 8 ride in the locomotive cab and sound the bell, horn 9 or whistle to the same extent that they now do in 10 the course of current operations. 11 Thank you, Mr. Chairman. 12 THE CHAIRMAN: Thank you. 13 Mr. Wolly, is the BLE prepared to proceed 14 with its rebuttal? 15 MR. WOLLY: Could we have a five-to-ten-minute 16 recess, please? 17 THE CHAIRMAN: Yes. 18 MR. WOLLY: Thank you. 19 (Whereupon, a short recess 20 was taken.) 21 THE COURT: We're ready to start the rebuttal 22 phase of the case, and the BLE will start us out. 23 MR. WOLLY: Thank you, Mr. Chairman. 24 Mr. Chairman, Mr. McDonnell, members of 228

1 the Board, after all the arguments are over and 2 after all the exhibits are examined, the core 3 question before you remains a relatively simple 4 one: Have the carriers assigned the duties and 5 responsibilities of the locomotive engineers to the 6 RCOs or have they not. 7 If you find that they have, -- and that is 8 what we believe you should find on this record -- 9 then there could be no doubt that they violated the 10 Diesel Agreement and they also violated that 11 agreement when they eliminated the engineer from 12 the crew. 13 Their response to our manning argument 14 that the Diesel Agreement came out of what they 15 label the jurisdictional, not a manning dispute, 16 well, that's not what the Diesel Board called it. 17 You can look at the report. It's an 18 exhibit here. It specifically used the word 19 "manning" throughout its report and there has been 20 an engineer on every crew since. 21 So what does duties and responsibilities 22 of an engineer mean? That, too, is quite simple. 23 It means operating the locomotive. It doesn't mean 24 only from a fixed set of controls on a stand as our 229

1 opponents say it does. It means doing whatever it 2 takes to operate the locomotive. 3 No one denies in this proceeding that 4 operating locomotives has been the exclusive domain 5 of the locomotive engineer. Ground service 6 employees never operated locomotives to move cars. 7 No employee ever moved locomotives to move cars 8 except locomotive engineers. 9 In yard operations, the record 10 demonstrates that it has always been the locomotive 11 engineer who made the locomotives start and stop, 12 who brought the locomotive up to a consist of cars 13 to be moved and who then caused the cars to be 14 moved after they were coupled to the locomotive. 15 The engineer sets the speed, he observes 16 the track for obstructions, he releases the brake 17 and he starts and controls the movement. Then he 18 stops the train when it reaches its destination and 19 then moves the locomotive to its next spot after 20 the cars it has delivered are uncoupled or 21 switched. 22 As was explained to you yesterday by Vice 23 President Radek, the RCO uses a separate set of 24 controls to effectuate exactly the same thing. The 230

1 duties and responsibilities of the engineer insofar 2 as moving the locomotive have been subsumed by the 3 RCO, not by the computer that the RCO is using. 4 If there's one thing we can say about the 5 other presentations, it's that they're certainly 6 not bashful. They want you to take an award in 7 Canada involving a fully-automated, self-contained 8 humping yard and apply it to making yard transfers 9 within the terminal, among other things. 10 In areas like Chicago, that encompasses 11 virtually the entire metropolitan area. There are 12 many carriers that are operating in many terminals 13 in this area which are considered to be all 14 available for yard transfer movements. 15 They intend to assign RCOs to road 16 switcher work and to take remote control 17 locomotives 40, 50, even 60 miles across all manner 18 of public crossings, and they're relying on a 19 Canadian award in a very defined hump yard 20 operation to justify it. 21 But then they tell you that only 10 22 percent of the RCO's time will be spent on the 23 ground. That simply cannot be the case when you 24 consider what they intend to do with the authority 231

1 they're asking you to give them. 2 Yesterday, they asked you to consider 3 perspective. On the one hand, they say the best 4 place to operate is from the ground, and on the 5 other hand, their papers say the best vantage point 6 is in the cab. 7 The facts reveal that they have assigned 8 the RCOs to do it from both places and when they 9 are in the cab, they behave no differently than 10 engineers and when they take the controls on the 11 ground, they are behaving no differently. 12 Naturally, UTU argues and the carriers 13 agree that the conductor is the one in charge of 14 the train as if the engineer is his lackey. As 15 this board well knows, that is not the case, that 16 is an exaggeration. 17 When it comes to running the engine, the 18 engineer has always been in charge and the 19 conductor is little more than an observer. Their 20 own operating rule confirms that. Rule 1.47 says 21 the engineer is responsible, the engineer is 22 responsible, for safely and efficiently operating 23 the engine, not the conductor, not any other 24 groundperson. And it says that the crew members 232

1 must obey the engineer's instructions that concern 2 operating the engine. 3 This dispute is over operating the engine 4 and moving cars with that engine. 5 Vice President Radek is going to address 6 what you heard yesterday from the carriers about 7 these things. 8 MR. RADEK: Mr. Chairman, Mr. McDonnell and 9 Board members, yesterday, you heard some carrier 10 representatives engage in we won't say testimony 11 but representations that we think were nothing more 12 than broad statements, sweeping generalizations, 13 unsupported assertions or just claims that the 14 record outright will not support. 15 I would like to talk a little bit about 16 remarks that were made by Messieurs Horst and 17 Quilty. 18 Beginning with Mr. Horst's remarks, we 19 appreciated his candor when he explained that the 20 remote control system that he helped build was 21 designed for the purpose of circumventing the 22 agreements with the BLE, but we have to say we're 23 somewhat dismayed to learn that Mr. Horst said that 24 with the Beltpack, you set it and forget it. Is 233

1 that true? 2 We heard the representatives of the 3 carriers yesterday say that the computer -- and 4 this was a recurrent theme -- does all the 5 engineer's work. Is this really the case? 6 If we look at the record, we see that is 7 not the case. If that were true, if the computer 8 had replaced the locomotive engineer, there would 9 be no reason that the carriers would need to teach 10 remote control operators train handling techniques, 11 and each carrier party to this dispute does exactly 12 that. 13 You need only look at their training 14 manuals. If you'll look at BLE Exhibits 1D, E, F, 15 G, you will see in each of those exhibits entire 16 chapters on train handling techniques. If the 17 computer handled the train, there would be no need 18 to teach those techniques to operators. 19 We heard Mr. Horst say that the current 20 Beltpack technology is not throttle and brake 21 technology like earlier versions of this technology 22 were. 23 That really isn't true. It's still 24 throttle and brake technology but with some 234

1 revisions or with a twist, if you will. 2 What has been added has been a speed 3 maintainer feature. The controls still effectuate 4 the locomotive's throttle and brakes. They're just 5 simply done in a little bit different manner than 6 in the earlier version. 7 You saw the remote control unit yesterday 8 and we went through how that remote control unit 9 operates. It is throttle and brake, there are 10 throttle and brake knobs, controls, on it, but 11 there is a speed maintainer feature which may or 12 may not be used by the operator depending on his 13 discretion. He can override all of that. 14 That also goes to the point that the 15 remote control on-board computer does not replace 16 the engineer because the remote control operator 17 can press buttons to override the controller 18 features. He can effectuate independent braking 19 independent of the power braking knob. And our 20 statements of the remote control operators that are 21 part of our exhibits show that they do exactly 22 that. 23 Mr. Quilty testified or represented, I 24 should say, that trainmen control movements. He 235

1 said that no movement takes place unless first a 2 trainman has given an engineer a signal to move. 3 That just simply is not true. 4 There are many, many times that engineers 5 move trains and locomotives without first getting a 6 signal from a trainman. One obvious example is 7 when a dispatcher puts up a signal authorizing the 8 train movement and the engineer just simply 9 initiates the movement. 10 There are many other examples. Engineers 11 move trains and locomotives on the instructions 12 from maintenance-of-way supervisors in accordance 13 with track warrants and orders never waiting for 14 signal from a trainman. 15 This is significant, too, because in the 16 universe as the railroads have characterized it 17 that they intend to use this remote control, road 18 switchers, local freights, oftentimes, you're in 19 geography where movements are governed by wayside 20 signals and a trainman would never give a signal to 21 effectuate a move. 22 Now, a better characterization of the 23 trainman's role is Mr. Breeden's statement that I 24 referred to yesterday in one of the carrier's 236

1 exhibits where he said that trainmen gave signals 2 to locomotive engineers and then the locomotive 3 engineers actually act upon those signals to 4 control the movement. 5 Now, the best you could say is that the 6 trainmen may give signals that direct movement but 7 they certainly have never controlled it. The 8 locomotive engineer has controlled the movement, 9 not the trainmen. 10 The conductor may be responsible for the 11 safe operation or to see to the safe operation of 12 the train, but the conductor has never touched the 13 controls to actually do it. 14 The operating rules that have been made 15 exhibits will show you that if a trainman sees that 16 an operation of a train is not being conducted in a 17 safe manner, the conductor might operate the 18 emergency brake valve, but the conductors never 19 have handled the controls of the locomotive in any 20 manner to handle the train. So they direct it, 21 they do not control it. 22 It's almost so fundamental and elementary 23 that it doesn't need telling, but there is a big 24 difference between telling somebody to do something 237

1 and the actual doing of it. The locomotive 2 engineers run the engine. 3 We have a craft system on the railroads in 4 the United States, and the duties of those crafts 5 are very well understood. Locomotives are operated 6 by locomotive engineers, not by trainmen. 7 The FRA certainly supports that point of 8 view. Apart from the FRA's safety concerns as to 9 how the locomotive remote control operations are 10 taking place and all of the places that the 11 carriers intend those operations to take place, the 12 FRA recognizes that the remote control operator is 13 a locomotive engineer. 14 The remote control operator by the FRA's 15 definition is a locomotive engineer and the 16 locomotive engineer and the remote control operator 17 are equally responsible under the Federal 18 Regulations for the proper operation of their 19 trains, both are equally responsible under the 20 Federal Regulations and held accountable when 21 something happens that would indicate a locomotive 22 or a train was not properly operated. 23 On the record that we have submitted, we 24 think that you cannot reach a decision other than 238

1 to say that the locomotive engineer must remain in 2 control of the locomotive whether he uses remote 3 controls or fixed controls. 4 MR. WOLLY: We refer you to the employee 5 statements that are Exhibit 49 that BLE submitted 6 because those present to you the equivalent of 7 testimony from the people who are actually watching 8 or the people who are actually doing these jobs, 9 and in their written filings, the carriers 10 criticized those statements because many of them 11 say the same thing, but the fact is that there's no 12 need for someone to be eloquent when they are all 13 doing the same thing. 14 These are the working RCOs, these are not 15 the main office theorists. These are the people 16 who are telling you what is happening in the yards 17 and to what purpose the remote control technology 18 is being put and what duties and responsibilities 19 they are being assigned. 20 We suggest that you go through what the 21 employees are actually saying and compare it to 22 what you've heard here because we believe you're 23 going to find from looking at those statements that 24 indeed the duties and responsibilities those 239

1 individuals are being assigned are in fact the same 2 duties and responsibilities that previously had 3 been performed by locomotive engineers. 4 What do they tell you? They tell you that 5 they are starting and stopping the locomotives, 6 they tell you they are controlling the direction of 7 the movement, they're setting, increasing and 8 decreasing speed throughout the movement, they are 9 sounding the horn and bell, they are operating the 10 lights, they are pulling trains in the yard, moving 11 large cuts of cars from receiving tracks to the 12 classification areas and they are in full control 13 of the movements as they do. And they tell you 14 they are doing locomotive engineers' work when 15 they're doing that, they're not doing conductors' 16 or switchmen's work. 17 They are bringing in trains that crews 18 could no longer operate because the crew had 19 reached the maximum number of hours per minute 20 under the federal hours of service law, they're 21 traversing public crossings. Often, they are 22 exchanging signals or receiving signals from a 23 groundperson while they are in the cab in exactly 24 the same manner that locomotive engineers did when 240

1 they sat in those same seats that the carriers are 2 putting the RCOs now. 3 To us, that's telling testimony to the 4 fact that the duties and responsibilities are not 5 being performed by a computer but are being 6 performed by the employees themselves. 7 FRA regulations require that individuals 8 are trained so that they possess the skills to 9 safely operate a locomotive or train, quote, in the 10 most demanding class or type of service, end quote, 11 that they will be called upon to perform. 12 The FRA has confirmed that this 13 requirement applies to both conventional and remote 14 control operations. That is why carriers -- excuse 15 me -- that is why engineers who work beyond the 16 yard have longer training periods than the carriers 17 are giving RCOs. 18 What the carriers are doing is they are 19 training engineers for the highest level of service 20 and now they're training to avoid using them for 21 the lower included level of service that's in the 22 yard and they're saying to you, "Let us do that 23 under the existing agreements." They're saying 24 they're allowed to do that. 241

1 If they're allowed to rely on the lesser 2 training that they've agreed to give the RCOs to 3 deprive the engineers of the work that the 4 engineers formerly did, what you'd be doing is 5 allowing the carriers to rewrite their agreements 6 with BLE unilaterally. 7 They can't carve up the engineers' jobs 8 and duties and responsibilities and give some to 9 them and some to someone else and then say it's no 10 longer an engineer's job, but that's exactly what 11 they're trying to do. They're trying to take the 12 existing duties and responsibilities and 13 essentially vulcanize them so that they can divy 14 them up and not have to have the engineers do the 15 tasks that may not be as difficult or need as much 16 training as they're supplied throughout the longer 17 training period that they are given. 18 The BLE doesn't need an agreement that has 19 the words "remote control" in it because we have an 20 agreement that is broader. We have an agreement 21 that covers conventional and remote control because 22 it assigns to us the operation of locomotives by 23 any means of control to accomplish our duties and 24 responsibilities. 242

1 By contrast, the UTU never had such an 2 agreement. And by contrast, the carrier has never 3 had the ability to assign the work to anyone other 4 than engineers. 5 The carriers served the same proposal on 6 the UTU as they served on us in this and they 7 resolved their differences by an agreement that, 8 quote, assigns the use of new technology, end 9 quote, to UTU-represented workers but then it 10 provides them with additional compensation for 11 performing the assignments and creates an exclusive 12 right supposedly thereto. 13 Why? They tell us in other filings that 14 they don't have to pay anybody more to do this 15 work, that this is work that's already part of 16 someone else's job. 17 If that's the case, why are they paying 18 more, why did they reach a separate agreement with 19 another craft to do the work? It just doesn't 20 shape up. 21 They agreed to pay UTU people 46 minutes 22 extra pay per shift to have this locomotive 23 engineer's work done by them and they agreed to six 24 years of protection for those who were adversely 243

1 affected by it. But what do they tell you? Don't 2 hold it against them because they did it without 3 prejudice to their position, that they didn't have 4 to do it anyway. If that isn't a ridiculous 5 argument, Mr. Chairman and members of the Board, we 6 don't know what is. 7 At Page 26 to 27 of our submission, we lay 8 out for you what they require the RCOs to know in 9 order to do this work. Every one of these items is 10 described in their remote control training 11 operating materials and the source authority for 12 them is in those pages. Most of those things are 13 not something that the groundperson ever had to 14 consider. 15 They trained them within this because they 16 are taking over something new. It's not just the 17 box, it's what they're doing with the box. 18 And how do we know they're doing something 19 more than what they're telling you? How do we know 20 that it's not just the microprocessor? Look at 21 what they have told the public, look at what they 22 have done to the RCOs who have gotten in trouble 23 operating these things, look at BLE Exhibits 48 and 24 64 to 68, look at the way they say that using these 244

1 units, the operator can control every aspect of the 2 locomotive, control it. He is operating the 3 locomotive. 4 Look at what their spokespeople say when 5 there is an accident. They say it's just the same 6 thing as a conventional engineer. They don't say 7 it's the same thing as a switchman or a conductor. 8 They say he tried to pull off the same thing that a 9 conventional engineer did a few months earlier and 10 had an accident and he's going to be held 11 responsible exactly the same way. 12 They are suspending people's 13 certifications for doing this the same way they 14 suspend locomotive engineers' certifications when 15 they make mistakes, and then they are issuing 16 instructions in the field that the RCOs better be 17 careful because they don't seem to be heeding what 18 locomotive engineers have to heed. 19 They're not recognizing that it is their 20 responsibility to know their braking of 21 locomotives, their tons per braking locomotive. 22 They're telling them you'd better go back 23 and read those operating rules that we told you you 24 had to know in the training part because those are 245

1 the rules that govern how a locomotive is operated 2 on this company's system. 3 The president of the AAR told Congress 4 that what's happening is that these people are 5 using these boxes to operate the train, and that is 6 the engineer's duty and responsibility. 7 And when we were in court and there was a 8 disagreement in front of the Judge as to how far 9 her injunction should extend and BLE said to the 10 Judge they're going to try and take this locomotive 11 out several miles and they're going to try and use 12 remote control technology beyond what they're 13 telling you, what did their lawyer tell the Judge? 14 That's not true, they're going to be on the ground, 15 you can't be on the ground and have it move five 16 miles. 17 Essentially what we're talking -- what BLE 18 was talking about is that's another engineer and 19 the carriers are not trying to call this person 20 another engineer. 21 UTU argues to you today that it is the 22 only one with an agreement that uses the words 23 "remote control," but look at the context, 24 Mr. Chairman and members of the Board. 246

1 When did they reach this agreement? After 2 this dispute arose, after the arbitration agreement 3 was entered into and after the issues presented to 4 this board were framed. 5 How convenient that they have an agreement 6 that they never had before. We've had the Diesel 7 Agreement for 60 years. Don't hold the fact that 8 while this dispute was pending, they cut a 9 sweetheart deal against us. That's the issue 10 that's in front of the Board in the first place. 11 Mr. Miller says to you this morning that 12 you should disregard the purpose of the BLE Section 13 6 Notices because the arbitration -- four of the 14 six arbitration decisions we rely on came out of a 15 different industry. And he's concocting a theory 16 that the reason for that is that in other 17 industries, agreements expire. 18 Do you see any arbitrators having said 19 that? The arbitrators who have applied the 20 principle that we are suggesting are 21 well-recognized arbitrators regardless of industry, 22 the principle is well recognized regardless of 23 industry. 24 The fact that there may be more awards in 247

1 this industry that go the other way does not mean 2 that that principle has no credibility. It 3 certainly does. And there are two railroad 4 decisions that we gave you where that principle 5 played into the ultimate ruling. 6 It is pure fantasy to say that the reason 7 the arbitration awards are not convincing is that 8 they came from somewhere else. 9 I notice that UTU doesn't say that when 10 they rely on the Canadian award where awards from 11 other industries played to their favor. 12 And let's talk about the Canadian award. 13 We've already described for you in detail why it 14 shouldn't apply here, but in case there's any 15 question about it, let me repeat it. 16 Mr. Picher is a respected arbitrator, but 17 even respected arbitrators sometimes get it wrong. 18 We believe his award was wrong on the record 19 presented to him, but even if it wasn't, the basis 20 of fact in that record is so different from what 21 you have here that you cannot blindly take that 22 award and say this case is over. His conclusions 23 are simply not transferrable to this dispute for a 24 variety of reasons that we've explained. 248

1 He was not faced with the Diesel Agreement 2 requirements, he was not faced with the different 3 and far more extensive uses to which these carriers 4 intend to put the remote control technology. 5 It is a quantum leap from a restricted, 6 well-refined, totally automated hump yard to road 7 switchers which are just another form of road 8 freight service. 9 They are trying to fool you, Mr. Chairman, 10 and you should not be fooled. They gloss over in 11 front of you all of the extra training that is 12 being provided to the RCOs here which was not 13 necessary to be provided in that case, either. 14 And perhaps the most startling thing that 15 they have said to you is you should ignore the 16 local rules on which all the general committees 17 rely. They say if you don't, it will destabilize 18 bargaining. 19 That is such a shocking suggestion. These 20 are long-held rules that were the product of 21 collective bargaining. They constrain the 22 carriers' discretion and they preserve important 23 employee rights. 24 If the carriers want to be rid of them, 249

1 the answer is to raise their concerns at the 2 bargaining table, not to come to this board and say 3 don't look at them because we have competitors here 4 and you can't allow any segment of any railroad to 5 be bound by some different rule than applies to 6 another segment or to another competitor because it 7 will destabilize the relationship between the 8 railroads. 9 Poppycock is the charitable description of 10 that argument. You can't just sweep away agreement 11 rules because the railroads have business 12 competitors, although you wouldn't know it from 13 what they're doing here today. 14 This arbitration has both national and 15 local implications. All of the carriers are here 16 and we're required to present to you all of the 17 rules that we believe dictate that this work be 18 assigned to us and that assigning it to someone 19 else is violating agreements. We have done that. 20 Now they're telling you don't look at it, 21 you have to look at both because that is the 22 encompassing nature of this proceeding. 23 The carriers and the UTU want you to 24 decide a different dispute than the questions that 250

1 are presented. 2 This is not a craft or class dispute, this 3 is a work jurisdiction dispute. 4 There are two crafts operating inside of 5 this industry. The mediation board twice has 6 rejected UTU attempts to make them one. We have 7 separate agreements. 8 The totality of the work of the RCO 9 position is not the issue. They want it to be the 10 issue. They want you to decide whether the RCO is 11 a trainman or an engineer. You don't have to 12 decide that and you should not decide that. 13 What you have to decide is whether the RCO 14 is performing any duties and responsibilities of 15 engineers, and if he is, you must hold for the BLE. 16 We don't have to show that everything he's 17 doing is an engineer's work. We don't even have to 18 show that what most of what he does is engineer's 19 work. If anything he does is the duties and 20 responsibilities of an engineer and clearly using 21 an OCU to move locomotives to switch cars and to do 22 all these other things they say he's going to use 23 that OCU to do, then you must hold for the BLE. It 24 is as simple as that. 251

1 We all are sitting behind walls of 2 exhibits and arguing. By the fact that during this 3 brief rebuttal we're not going to go through every 4 word that everyone said here yesterday or every 5 statement that is set forth in all of our 6 opponents' filings mean that we are conceding 7 something because we are not, but we believe that 8 the issues are fairly joined by the presentations, 9 the main presentations, that were made. 10 We believe that the statements that you 11 have and the evidence that you have dictate a 12 finding for the BLE, and we believe that when you 13 go through them in the privacy of wherever you can 14 carry them that you will reach that conclusion. 15 Thank you. 16 MR. MOORE: We're ready to proceed, 17 Mr. Chairman. 18 THE CHAIRMAN: Please do. 19 MR. MOORE: Except that I want my five-minute 20 break, too. 21 THE CHAIRMAN: Fair enough. 22 (Whereupon, a short recess 23 was taken.) 24 THE CHAIRMAN: Back on the record. 252

1 Mr. Moore, the floor is yours. 2 MR. MOORE: Thank you, Mr. Chairman, Professor 3 McDonnell, Board members. 4 THE CHAIRMAN: May we have everyone's 5 attention, please? We're starting. 6 MR. MOORE: Wait till people sit down and then 7 I'll start. 8 As I said when I started yesterday, the 9 question you have before you comes down to since 10 it's whether the carriers can assign RCO jobs to 11 ground service people under the agreements that we 12 have with the BLE and the United Transportation 13 Union at issue here, it comes down to whether we 14 can assign RCOs to yard engines, locals and road 15 switchers. That's really the heart of the question 16 you have before you. 17 Now, as I said yesterday, the carriers 18 have a management right to assign these jobs to 19 ground service unless they've entered into 20 agreements that forbid it, and on that question, 21 there's no question that the BLE has the burden of 22 proof that we've assigned a job to the RCOs, to the 23 ground service people, in the face of agreements 24 that forbid it. 253

1 Now, they've got a tough standard of proof 2 there, as I've said at the outset. They have to 3 show that our agreements -- not only do they have 4 to show they forbid it but expressly forbid it, to 5 use Zumis' language, they forbid it in strong, 6 clear and unambiguous language. 7 I said yesterday that I don't think that 8 the agreements that they have do that, and the 9 rebuttal that you've heard this morning is in part 10 on the facts and in part on the agreements. 11 And we don't propose to answer everything 12 that was said, but we do have a few words to say 13 about the facts, and I'm going to ask Mr. Munro to 14 address those and then I want to address the 15 agreements a little bit more and then we'll close. 16 Don, why don't you go ahead? 17 MR. MUNRO: Thanks, Ralph. 18 There are a couple of things about the 19 presentation this morning that stood out for me. 20 One was the comment that there are no examples of 21 any situations where locomotives -- the operation 22 of locomotives have been assigned to anyone else. 23 Well, that's not so. The fact of the 24 matter is that whenever a locomotive is controlled 254

1 from somewhere other than the cab, it is never the 2 locomotive engineers. 3 The cases that are discussed in the 4 record, the Havelock case, every situation where 5 you have a locomotive being controlled from some 6 other location without regard to whether engineer 7 skill is required, just the location alone, 8 locomotive engineers don't do that, and that's why 9 I said yesterday that it's only the fixed, in-cab 10 controls that are reserved to the engineers. 11 And so even if we were talking about 12 throttle and brake technology in this case, even if 13 it was just the fact that this is being done from a 14 different location, that would be enough to carry 15 the day for our side, but the fact of the matter 16 is -- and this is the second point that I heard 17 this morning -- this is not throttle and brake 18 technology, it's something new and different. 19 The BLE continues to cling to the notion 20 that this is really just a portable control stand, 21 it's just miniature locomotive controls that are 22 being carried around on the ground. And I've 23 already explained why that's not true and Mr. Horst 24 went into a great deal of technical detail as to 255

1 why that's not true. 2 If I had to sum it up, one thing I might 3 say is that that individual on the ground when he's 4 operating that speed lever doesn't have to have any 5 feel for the train. And that's one of the things 6 that the BLE has always emphasized is that the 7 engineer in that seat gets that feel of the train, 8 that he can feel the tonnage and the amount of 9 acceleration. 10 That's all being done by the computer, and 11 when the individual on the ground is moving that 12 lever, all he's doing is sending a command just as 13 a ground service employee would do. 14 Well, the BLE said it's not a 15 set-and-forget system as Mr. Horst said. 16 Mr. Rudick said that that's just not true, and to 17 back up that statement, he points to some of the 18 operating manuals. 19 Well, let me just mention one of them. In 20 the BLE's materials at Exhibit 34, they have the 21 Union Pacific operating manuals, and when those 22 manuals talk about what the speed controller is, 23 they say that you simply select the direction and 24 move the speed lever to a desired speed setting, 256

1 the locomotive will continue to accelerate until 2 the desired speed is reached, the Beltpack will 3 automatically apply locomotive brakes until the 4 locomotive slows down to the desired speed. 5 Acceleration is not dependent on the speed selector 6 setting, the locomotive will accelerate at the 7 appropriate rate regardless of the speed chosen. 8 This feature is unlike the manual control 9 of a locomotive where acceleration depends on the 10 throttle setting. In other words, those materials 11 do support the fact that this is a set-and-forget 12 system just as Mr. Horst said. 13 The other point that they make is that 14 you're teaching RCOs train-handling skills, and 15 therefore, you're teaching them to be engineers, 16 they have to know how to handle the train. 17 Well, I have two responses to that. The 18 first is no, we're not, we're not teaching them to 19 be engineers, we're not teaching them to account 20 for all the myriad factors that an engineer has to 21 take into account, how to account for tonnage and 22 track grade and all the many other things that the 23 computer takes into account. In fact, you can't 24 teach someone to do that in two weeks, and we're 257

1 not trying to do it. 2 Why aren't we bothering to teach them all 3 that? Because the train-handling skills that an 4 RCO has are the skills that a ground service 5 employee already has. 6 They have to know when to start, when to 7 stop, what speed to tell the locomotive engineer to 8 go, and in making those kinds of judgments, they 9 have to be able to gauge speed and distance, as 10 Mr. Quilty explained yesterday. They have to be 11 able to assess the tonnage and tell that locomotive 12 engineer that he's five car lengths away, he's got 13 to give a stop signal now because he's heavily 14 loaded. 15 And the BLE has continually dismissed the 16 notion throughout this proceeding that ground 17 service employees are highly-skilled individuals 18 who already have to have the kind of skills that an 19 RCO has. 20 It is the ground service employee who is 21 critical to these kinds of operations that we're 22 talking about in this case. If he does not give 23 the order, that train will never move. If he does 24 not tell the engineer to stop, the train will not 258

1 stop, and that's why ground service employees are 2 held responsible in these accident cases that the 3 BLE has referenced. 4 Mr. Radek said at one point that's not 5 true, that there are lots of situations where the 6 engineer moves the train without a command from the 7 ground service employee, but listen to what he 8 says. He says they move trains in response to 9 dispatcher signals, in response to track warrants 10 and in response to maintenance-of-way supervisors, 11 they never do it on their own, they always respond 12 to a signal from outside the cab. And that's 13 exactly what's going on here. 14 That brings me to my final point. 15 I want to stress that the nature of the 16 work that we're talking about here is ground 17 service work in all of the assignments implicated 18 in this case. 19 Now, they've started to focus in in their 20 rebuttal on the riding cases, transfers and 21 rebuttals and they've talked about how big the 22 Chicago terminal is. 23 Well, the point is that ground service 24 employees do the same thing in all of these 259

1 operations that RCOs are doing now. As I said 2 yesterday, RCOs ride when ground service employees 3 ride and they walk when ground service employees 4 walk. 5 The fact is that all of these assignments, 6 all the assignments we're talking about, yard 7 engines, road switchers, locals, this whole 8 universe of assignments, were carved out and we 9 reached an agreement with the UTU because they all 10 involved gathering and distribution of freight and 11 equipment. In other words, they're all 12 characterized by the need to perform groundwork. 13 That's the defining characteristic of the 14 assignments we're talking about. They all require 15 that gathering and distribution function. And 16 that's why we've assigned them to ground service 17 employees. 18 The fact of the matter is that if the 19 assignment involves gathering and distribution of 20 freight, it is a ground service job. These 21 employees, employees who are working as RCOs, are 22 doing the same thing that ground service employees 23 have always done. 24 MR. MOORE: I want to return to the agreements 260

1 now. 2 The agreements that the BLE has simply do 3 not measure up to the standard of proof, the 4 standard they have to establish. They pretty much 5 drop the discussion in General Order 27 which said 6 the locomotive engineers shall have preference for 7 positions as engineers and they've stressed the 8 Diesel Agreement language that existing duties and 9 responsibilities of engineers will not be assigned 10 to others. 11 The existing and exclusive duties and 12 responsibilities of engineers will not be assigned 13 to others doesn't mean that they can't be 14 computerized, it means that they can't be assigned 15 to others. 16 The Canadian arbitration award addressed 17 that standard. What it said was that the 18 existing -- it's on Page 11 -- that the existing 19 duties -- I'm sorry -- the duties and 20 responsibilities of the RCO are for the most part 21 the duties and responsibilities of ground service 22 employees. 23 The question that these agreements don't 24 answer is whether the RCO job is an engineer's job 261

1 or not, whether the RCO's duties and 2 responsibilities are engineers' duties and 3 responsibilities or not, and therefore, these 4 agreements are not express with respect to the 5 issue before you. They're not express, they never 6 said -- they don't say anything about who should do 7 the kind of job that you've had described before 8 you today. 9 I'm a low-tech person, and so I operate 10 under some limits in this day of Power Point. In 11 any event, let me illustrate something here. 12 You know what that is? That's a 13 locomotive. It's not a very good locomotive 14 because I'm not a very good artist, but that's a 15 locomotive. 16 Now, when you have an engineer, locomotive 17 engineer, he sits up here in the cab. 18 THE CHAIRMAN: That's a nice hat, Ralph. 19 MR. MOORE: Is that a good engineer's hat? 20 THE CHAIRMAN: Good hat. 21 MR. MOORE: And I'm going to give him long 22 arms. 23 He operates the locomotive controls and in 24 particular the throttle and brake. Now, he doesn't 262

1 do that on his own. He's got a buddy, the ground 2 service fellow. That's the locomotive engineer, 3 here's the ground service guy. 4 And in the days before radio -- I don't 5 remember when the radios came on the railroads, but 6 in the days before radio, he signalled this fellow 7 in the cab, and those signals controlled where the 8 locomotive went and how fast it went and so on. So 9 go this way or that way, he told it to start, told 10 it to slow down, told it to stop by these hand 11 signals. 12 Now, in -- I forget when -- it was in the 13 60s, he got a radio. He looks like he's pregnant, 14 but that's really a radio. And the radio would 15 send radio signals to the cab and it would convey 16 the same kinds of commands that he used to do by 17 hand. He'd tell him to go this way or that way, 18 tell him to start, slow down, stop, so on. 19 Now, another locomotive, same kind of 20 locomotive, and up here in the cab, there's this 21 locomotive control unit. It's a computer, and it 22 controls the throttle and brake. 23 And the computer's got a buddy, and he's 24 got a radio transmitter. It's called a remote 263

1 control transmitter. And he sends signals with 2 that transmitter, radio signals, to the computer 3 and it tells the computer to operate the throttle 4 and brake so that it goes this way or that way. It 5 tells it to start, tells it to slow down, tells it 6 to stop, same exact commands, and the computer 7 operates the locomotive controls to make the same 8 kind of moves. 9 Now, what's different here? Ground 10 service employee is essentially doing the same 11 thing he's always done. The locomotive is the same 12 kind of equipment. The engineer is not there. 13 Instead, we've got a computer. There's a 14 difference. 15 Now, the question presented concerns the 16 yard engines, road switches and locals. 17 There's nothing in the collective 18 bargaining agreements, there's certainly nothing 19 express in that or anything else in those 20 agreements, that distinguishes between those 21 different things. 22 And what is characteristic of all of them 23 is that you have a ground service employee who when 24 you do things, you switch on the ground, at one 264

1 point or another during the assignment, they 2 control the locomotive in exactly the same way that 3 they always have. 4 Now, there's been discussion about riding. 5 Sure, sometimes this fellow gets in the cab, gets 6 in the cab under the same circumstances now as 7 before, gets in the cab in the same circumstances 8 as the remote control transmitter as you did with 9 the radio. 10 The point is that this fellow is 11 essentially a ground service employee and those 12 agreements don't give that job to engineers, they 13 don't give it expressly, they don't give it in 14 mushy mouth language, they don't give it in any 15 way, shape or form. 16 So the bottom line here is that the BLE 17 has not sustained its very tough burden of proving 18 that it has agreements that expressly preclude the 19 railroad from assigning the transmitters to these 20 ground service employees. 21 And that concludes our rebuttal. 22 THE CHAIRMAN: Thank you. 23 Mr. Miller. 24 MR. MILLER: I just need a three-second pause. 265

1 I need to get something out of my case here. 2 THE CHAIRMAN: Sure. 3 MR. MILLER: Mr. Chairman, in rebuttal, the BLE 4 says that the carriers have assigned duties to 5 remote control operators that violate the Diesel 6 Agreements and then they got into a discussion 7 about the bargaining history associated with the 8 Diesel Agreements and the extent to which they and 9 the carriers did agree as to what the background 10 was. 11 Well, to use a phrase that I've heard in 12 court before, when in doubt as to the bargaining 13 history, consult the agreement. 14 The language of this agreement says 15 exactly what Mr. Moore was just talking about. 16 What it protects is the existing duties of 17 engineers. And how is it protected? That it will 18 not be assigned to others. 19 All the testimony and evidence indicates 20 that the existing exclusive duties of engineers has 21 not been assigned to others, it has been taken over 22 by the sophisticated microprocessor as part of 23 advancing computer technology, period, and this 24 agreement in no way touches it on its face. 266

1 We heard more about how the engineer 2 actually starts and stops the train by throttle, 3 and that's obviously not true. They need a signal 4 in order to move. That signal will most commonly 5 come from ground service employees, but it can come 6 from dispatchers. 7 The point is in the interface between 8 ground service employees and engineers when it's 9 the two of them that the ground service employee 10 has to signal before there's a move. The throttle 11 doesn't mean anything if it can't be opened because 12 there's no signal for the move. And now the ground 13 service employee is merely giving the signal to the 14 engine by a different methodology. 15 The BLE says that I want you to apply the 16 award in Canada. Well, I don't. 17 The first thing I want you to do is take a 18 look at the agreements that are at issue here. 19 UTU has a full and complete remote control 20 agreement, and by the way, we had the letter of 21 intent that actually provoked this dispute, that 22 did not predate this dispute, it caused this 23 dispute, and it is in our opening submission as 24 Exhibit 3. That was dated September 26th, 2001, 267

1 and that's when the BLE came unglued and did what 2 it did and everybody ended up in court and we ended 3 up here. 4 The BLE also says that they have filed 5 their Section 6 Notices in response to UTU's 6 Section 6 Notices and all that they were meant to 7 be was confirmatory because what else were they to 8 do? 9 Well, what else they were to do was to use 10 Section 3. That's where we are here today. 11 Whether you think you've got an agreement 12 that prohibits activity of a carrier in conjunction 13 with another union or not, the classic scope 14 disputes of the telegraphers and the clerks, did 15 those involve Section 6, no, they involved Section 16 3, and that's where we are today. 17 If they truly thought that these 18 agreements protected them to the degree that they 19 did, they would have sat on them and we would be 20 here on Section 3 with the fait accompli. 21 Obviously, they didn't want to do that. They 22 didn't want to face a Section 3 arbitration without 23 getting what they wanted in their Section 6 Notice 24 and they didn't get it. 268

1 It wasn't merely confirmatory. It was to 2 achieve something that they didn't already have in 3 accordance with the precedent in this industry. 4 The fact that the remote control operator 5 is in the cab, ground service people are in the cab 6 now, and we covered that in our opening submission. 7 The point is -- and they give orders inside that 8 cab now. They're either there because of weather, 9 because of the characteristics of a move so that 10 they don't get their ears blasted out by the 11 whistle. 12 And when they're there, they're not doing 13 engineers' work but they're still giving orders, 14 and when they're there with the Beltpack, they're 15 still giving orders to that engine. 16 The feel of the vibration and all of that 17 business, that doesn't mean anything. The computer 18 cares about that, not the remote control operator. 19 The remote control operator is merely giving 20 signals to the engine to move. How it moves, how 21 it's feathered, what those vibrations mean, that 22 all gets fed to the computer. 23 We saw that patent yesterday, and the 24 responses are all from the computer. Even when 269

1 that RCO is inside the cab, it's that computer 2 that's physically accomplishing the move in the 3 same way that an engineer used to by hands-on 4 controls. 5 And certainly an RCO shouldn't be deprived 6 of the ability for his or her own safety to get in 7 out of the weather, to protect themselves from the 8 whistle and protect themselves from the physical 9 characteristics of the move merely because now the 10 signals they give are by means of a remote control 11 Beltpack rather than by an oral order or a hand 12 signal or by radio. That makes no sense at all. 13 With respect to the training that is 14 received, I believe it's well established that 15 we're talking about two weeks of RCO training 16 versus 20 weeks of engineer training, and we know 17 that the FRA has to certify, but certainly the FRA 18 nowhere in the document that is before you that I 19 think all of us have put before you talks about 20 this particular issue. 21 It is concerned about the craft or class 22 distinction or the scope distinction. The FRA is 23 not going to decide this case, this Board is. 24 This case isn't about safety, period. 270

1 This case is about the interpretation and 2 application of existing agreements. That's the 3 sole and exclusive jurisdiction of this board, and 4 nothing that the FRA says is to the contrary. In 5 fact, the FRA makes it clear in the paper that you 6 have from them back in 2001 that remote control 7 operations are qualitatively different, and because 8 of that, they were going to have to have a 9 different training program. 10 Even a full-fledged engineer is going to 11 have to have that. If that engineer falls back 12 into the ground service craft, they've got to get 13 that RCO training. Why? Because that is key to 14 ground service duties being translated by means of 15 the Beltpack rather than by hand signals or radios. 16 We heard an awful lot about conductors 17 direct but they don't control. It is true that in 18 current operations, the engineers manually control 19 the train but only by responding to the direction 20 of conductors, and now the computer carries out 21 those instructions rather than the locomotive 22 engineer manually. Simple as that. Locomotive 23 engineers do run engines, now the computer does. 24 As far as the employee statements, I don't 271

1 think I need to say much about them except that 2 they are formatted and obviously formatted 3 self-serving statements of adherence to the BLE. 4 Moreover, the UTU in Exhibit 67 to our 5 opening submission have in there in the Marceau 6 declaration and the Vahldick declaration evidence 7 from people who actually operate this as well, and 8 it's to the contrary. They probably cancel each 9 other out because they're obviously self-serving. 10 What we've heard, though, in the technical 11 aspects of this remains unquestionably true, and 12 that is that the computer is the brain in the train 13 and the computer is making all of the hands-on type 14 of decisions that were previously made by the 15 locomotive engineer in carrying out the directions 16 of the groundsmen. 17 I heard that there were criticisms with 18 respect to this was a sweetheart deal that we 19 rushed into. Mr. Chairman, we take some umbrage at 20 that time because we think the only people we were 21 sweethearts to were the operating employees 22 involved, the engineers as well as the conductors, 23 as we detail at Footnote 2 on Page 6 of our reply 24 and as is obvious from the remote control agreement 272

1 itself which is Exhibit 4 to our main submission. 2 The labor protection provisions stipulate 3 that for six years after the establishment of a 4 remote control assignment at any location, the 5 remote control protection slot is going to be 6 established and paid at either conductor or yard 7 helper rate depending on what the person made 8 subject to reduction by buyouts, abolishments of 9 remote control positions or establishment of 10 reserve board positions for train or engine service 11 employees and up to half of the buyouts and up to 12 half of the reserve board slots including engine 13 service slots may be assigned to the agreements of 14 the BLE. 15 This union protected the operating 16 employees to the greatest extent possible in the 17 labor protective provisions that are contained in 18 the agreement itself and in its sidebar letter. 19 All of this belies the implication that 20 the engine service employees were cut out of the 21 benefits of remote control. They weren't. 22 Moreover, under ebb and flow, they will 23 fall back with their service and get training as 24 RCOs, either have a job, get protection, get a 273

1 buyout or be on the reserve board on the engine 2 service or train service side. 3 Like I said, the only people that UTU were 4 sweethearts to were the employees involved in this. 5 This isn't really about the employees. The 6 employees are protected. 7 The UTU seized the opportunity to instead 8 of standing in the wake of technology which has 9 always washed over and destroyed those who resisted 10 it and used it as an opportunity to provide 11 protections to people who are going to be affected 12 by it, and that's exactly what was done here. 13 This union has learned that you can't 14 fight technology forever. Eventually, it will 15 destroy you if you don't deal with it and make the 16 best deal you can for the people who are involved. 17 That's what was done here. That's what the BLE 18 didn't do here. 19 They say that RCOs are disciplined like 20 employees. So are conductors. Conductors have the 21 same responsibility and perhaps a greater 22 responsibility for the safe conduct and operation 23 of the train because they're in charge of the 24 direction and movement of the train. 274

1 I'm reminded of a story I have to tell. I 2 heard it from Fred Arden, and I know people get 3 upset when I say it, but this has to do with a yard 4 conductor, but a road conductor is just as 5 applicable. 6 When he was a young man, -- I know it's 7 hard to believe he was ever young, but he was -- he 8 was flagging for his father and he went up to the 9 engineer when they were going to take the train out 10 and he told the engineer, "This is a steam engine I 11 don't want you picking up water at milepost 11.4, 12 if you do that with this length of train, we're 13 going to cut the time in half and we've been having 14 trouble with that local city ordinance and the city 15 coming down on us, do not stop at 11.4." 16 And of course the engineer stopped where 17 he shouldn't have and Fred's father was riding in 18 the caboose and Fred was on the head end. And he 19 said, "I saw my father trudging toward me," and he 20 said, "I thought he was going to hit me for letting 21 him do it." And he said he got up on the engine 22 and he's relieved, he says, "Get the hell out of 23 this engine, I'm going to get me somebody in here 24 who knows how to take orders." 275

1 It's not as stark today, but the principle 2 is the same. The engine doesn't move without 3 direction from the conductor because the conductor 4 is in charge of the movement of the train no matter 5 where it occurs, in yard service or road service or 6 yard switcher service. 7 And I was glad to hear in the BLE 8 presentation that they forthrightly admit that they 9 think Michel Picher simply got it wrong, and of 10 course we think that he simply got it right, but it 11 is clear that none of the other distinctions that 12 amount to just that, distinctions without a 13 difference, had anything in the world to do with 14 the reason Michel Picher decided the case the way 15 he did. 16 In Page 11 of our opening brief, we quote 17 from Pages 8 and 9 of the Picher decision, and he 18 quite clearly says, "In my view, it is more 19 accurate to say that the locomotive engineer's 20 position has been abolished and that the employee 21 has been replaced by a microprocessor and interface 22 system which automatically performs the functions 23 previously assigned to the locomotive engineer." 24 At most, the job of moving the locomotive 276

1 has, to borrow Judge Anderson's phrase, been 2 deskilled to the point where the locomotive 3 engineer's function has been eliminated. 4 This is nothing new. Technology has 5 eliminated crafts before. The entire craft or 6 class of telegraphers was eliminated by the 7 assignment of the work of computers to the clerical 8 employees. 9 The telegraphers' case we cite from 1966 10 where Justice Black said that in arbitration, the 11 arbitrator had to resolve all of the apparent 12 conflicts and a single decision led to the 13 elimination of the telegrapher craft because those 14 awards uniformly came down that the work was 15 properly assigned to the clerical craft, the same 16 sort of jurisdictional dispute that we're talking 17 about here. 18 There's nothing new under the sun. This 19 has happened in the non-operating crafts, and the 20 BLE made reference to the NMB decision which is 21 their Exhibit 68 and that the BLE has rejected the 22 attempts of UTU to have a single craft class 23 declared. 24 I think that it's telling that on the last 277

1 two pages of that board decision, they talk about 2 remote control technology, and in the conclusion, 3 they say at present, less than four percent of 4 KCS's employees perform work in both train service 5 and engine service. In addition, remote control 6 technology is used in only two of KCS's 16 yards, 7 and even there, it is not fully implemented 8 technology. Under negotiated changes such as work 9 rules, it could ultimately result in a combined 10 craft or training of engine service employees on 11 KCS. 12 In other words, it's a temporal problem 13 and it all is key to the implementation of remote 14 control technology that we're talking about. 15 The National Mediation Board has no 16 jurisdiction with regard to interpretation and 17 application of agreements that concern work 18 jurisdiction or scope rule disputes, and even they 19 note that the implementation of this technology may 20 ultimately blur the craft or class lines. 21 It's clear that this technology has 22 advanced to such a stage that UTU's agreement was 23 the common sense thing to do in protection of the 24 employees and in permitting carriers to take 278

1 advantage of the advancement of technology. 2 We didn't stand in the way. We were not 3 saboteurs. We didn't throw our shoes into the 4 machines as they did in France. We took the 5 technology that was there and made an agreement in 6 the best interest of the employees that were 7 represented, all of the operating employees, with 8 respect to protection. 9 Truly what the BLE is trying to obtain in 10 this award is that which they don't have in an 11 agreement, and on that basis, their claim should be 12 rejected. 13 Thank you very much. 14 THE CHAIRMAN: Thank you. 15 Recognizing that the horse is turning 16 blue, does anybody have any further comment they 17 want to make for the record? 18 All right. 19 MR. MOORE: We want to say that we appreciate 20 your attention. 21 THE CHAIRMAN: Well, I appreciate the 22 professional manner -- and I speak on behalf of the 23 whole board. 24 I appreciate the professional manner in 279

1 which the parties have conducted themselves. It's 2 always a pleasure to work with folks who can agree 3 to disagree agreeably. 4 With that, we'll close the record. Thank 5 you. 6 (Whereupon, which were all the 7 proceedings had in this cause 8 on this date.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 280

1 STATE OF ILLINOIS ) 2 ) SS: 3 COUNTY OF K A N E ) 4 5 BRENDA S. TANNEHILL, being first duly 6 sworn, on oath says that she is a court reporter 7 doing business in the City of Chicago; and that she 8 reported in shorthand the proceedings of said 9 hearing, and that the foregoing is a true and 10 correct transcript of her shorthand notes so taken 11 as aforesaid, and contains all of the proceedings 12 given at said hearing. 13 14 ______________________________ 15 Certified Shorthand Reporter 16 17 SUBSCRIBED AND SWORN TO 18 before me this______day 19 of________________2002. 20 21 22 _______________________ 23 Notary Public 24 281