before presidential emergency board no. 243 american … · 2011-11-07 · before presidential...

BEFORE PRESIDENTIAL EMERGENCY BOARD NO. 243

__________________

IN THE MATTER OF AMERICAN TRAIN DISPATCHERS ASSOCIATION; BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND TRAINMEN/IBT; BROTHERHOOD OF

MAINTENANCE OF WAY EMPLOYES DIVISION/IBT; BROTHERHOOD OF RAILROAD SIGNALMEN; INTERNATIONAL ASSOCIATION OF

MACHINISTS & AEROSPACE WORKERS; INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS; INTERNATIONAL

BROTHERHOOD OF ELECTRICAL WORKERS; NATIONAL CONFERENCE OF FIREMEN AND OILERS, SEIU; SHEET METAL WORKERS’

INTERNATIONAL ASSOCIATION; TRANSPORT WORKERS UNION; and TRANSPORTATION COMMUNICATIONS UNION

NMB Case Nos. A-13569 (TCU - Clerical), A-13570 (TCU - Carmen), A-13572 (ATDA), A-13573 (TWU), A-13574 (IBEW), A -13575 (IAM),

and A-13592 (RLBC) _________________

BLET CRAFT-SPECIFIC SUBMISSION Michael S. Wolly ZWERDLING, PAUL, KAHN & WOLLY, P.C. 1025 Connecticut Avenue NW Suite 712 Washington, DC 20036 (202) 857-5000 General Counsel, Brotherhood of

Locomotive Engineers and Trainmen/IBT

Roland P. Wilder, Jr. Stephen J. Feinberg BAPTISTE & WILDER, P.C. 1150 Connecticut Avenue, N.W., Suite 315 Washington, D.C. 20036 (202) 223-0723 Counsel for Rail Labor Bargaining Coalition

Dated: October ____, 2011

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TABLE OF CONTENTS

Table of Exhibits ............................................................................................................................. ii

I. Introduction ............................................................................................................................... 1

A. Entry Rates and the Two-Tiered Pay System ..................................................................... 1

B. Away-from-Home-Terminal Meal Allowances ................................................................ 12

C. Certification Allowance .................................................................................................... 17

D. Improved and Enforceable Minimum Locomotive Cab Standards .................................. 25

II. Conclusion .............................................................................................................................. 32

Attachment A .............................................................................................................................. A-1

Attachment B ...............................................................................................................................B-1

ii

Table of Exhibits

Exhibit / Document Excerpt BLETX page

1978 National Agreement (Art. IX) 1

1983 Study Commission Report and Recommendations at pp. 2-4, 13, 36, 158-162 3

Report of PEB 194 at p. 14 14

1986 Award of Arbitration Board No. 458 (Arts. IV, VI-VIII, SL #9A) 16

1991 Agreement Implementing the Recommendations of PEB 219 (Art. IV) 28

1984 BLE–BN Memorandum of Agreement (§ 8F) 31

Rail Safety Improvement Act of 1988 34

49 C.F.R. Part 209, Subpart D and Appendix A 51

49 C.F.R. Part 240 71

49 C.F.R. Part 229.135 119

49 C.F.R. Part 218, Subpart D and Appendix C 125

1996 National Agreement (Art. VIII) 132

49 U.S.C. Sections 10901, 10902 135

2003 National Agreement (Art. V) 137

BN 1996 On-Property Agreement (Article XIV) 149

CSXT System Agreement No. 1–023–07 (Art. 3.B) 150

NS 1996 On-Property Agreement (Art. VIII, Q&A#1) 153

NS 2000 On-Property Agreement (Arts. III-IV) 157

UPRR Denver Hub MIA (Art. II.I) 159

UPRR Kansas City Hub MIA (Art. IV.H) 161

UPRR Salina Hub (expanded) MIA (Art. IV.C) 165

UPRR Salina Hub MIA (Art. II.B) 168

UPRR Salt Lake Hub MIA (Art. II.J) 170

UPRR San Antonio Hub MIA (Art. VI.D) 174



Report of PEB 229 at pp. 7, 31 182

Report of PEB 166 at pp. 6–7 185

49 U.S.C. Section 20163 188

CSXT System Agreement No. 1–023–07 (Art. 8.A) 191

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1964 National Agreement (Art. II) 194

1971 National Agreement (Art. VIII) 197

1972 Letter Agreement 201

1978 National Agreement (Art. VI) 202

1982 National Agreement (Art. IX) 204

1986 Award of Arbitration Board No. 458 (Art. XIV) 206

1991 Agreement Implementing the Recommendations of PEB 219 (Art. VII) 208

2008 NCCC–UTU National Agreement (Art. V) 211

BNSF 2007 On-Property Agreement (Art. 4) 213

NS 2003 On-Property Agreement (Art. VII) 215

NS 2008 On-Property Agreement (Art. VI) 217








49 C.F.R. Part 240 1991 Final Rule (56 Fed. Reg. 28228-28230, 28235, 28247) 233

49 C.F.R. Part 240 2000 Final Rule (64 Fed. Reg. 60994) 238

49 C.F.R. Part 240 1998 NPRM (63 Fed. Reg. 50636, 50641) 240

49 C.F.R. Part 240 2010 Final Rule (74 Fed. Reg. 68174-68176) 243

FRA Enforcement Report FY 2009 247

FRA Enforcement Report FY 2010 249

1996 National Agreement Side Letter No. 11 252


Report of PEB 227 at pp. 13, 22, 26 257


Award of Arbitration Board No. 564 263

49 C.F.R. Part 219.101 270

49 C.F.R. Part 242 2010 NPRM (75 Fed. Reg. 69167, 69168, 69179, 69181-69182, 69211) 274

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49 C.F.R. Part 218, Subpart F 281

BNSF 2007 On-Property Agreement (Art. 7) 293

Report of PEB 236 at pp. 4, 9, 13, 16-17, 30 295

1986 Award of Arbitration Board No. 458 (Art. XVII) 303

Smith, S., Smith, J., Newman, R., 2006. Vibration Transmissibility Characteristics of Occupied Suspension Seats. AFRL-HE-WP-TR-2006-0133 at pp. xiii–xiv. 308

Pilcher, J., Nadler, E., Busch, 2002. Effects of hot and cold temperature exposure on perfor-mance: a meta-analytic review. Ergonomics, Vol. 45, No. 10, pp. 682–698. 311

Multer, J., Rudich, R., Yearwood, K, 1998. Human Factors Guidelines for Locomotive Cabs. DOT/FRA/ORD-98/03. 328

49 C.F.R. Part 229 (Scope and Subpart C general/cab/cab equipment only) 335

49 C.F.R. Part 229 NPRM 2011 (76 Fed. Reg. 2206–2207, 2210) 352

49 U.S.C. Section 20156 356

49 C.F.R. Part 218.97 360

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I. Introduction

The Brotherhood of Locomotive Engineers and Trainmen (BLET) represents locomotive

engineers at all, and trainmen at some, of the carriers involved in this proceeding. Wage and

rules agreements resolving this round’s Section 6 notices have been reached outside of national

handling with three of these carriers (BNSF, CSXT, and NS), while ongoing on-property bar-

gaining will address BLET’s issues with Union Pacific.1 For the remaining carriers represented

by the NCCC, BLET has reduced its craft-specific proposals to four: (1) entry rates and the two-

tiered pay system; (2) meal allowances paid at the away-from-home-terminal; (3) locomotive

engineer certification pay; and (4) locomotive cab working conditions. We show below why

these proposals are fair, just, and warranted.2

A. Entry Rates and the Two-Tiered Pay System

The BLET requests that the Board recommend elimination of the entry rate and two-

tiered pay system applicable to locomotive engineers and other BLET-represented employees.

These provisions were conceived in 1978, a time when the financial stability of the rail industry

was far different from what it is today. The railroads in the Northeast were in shambles, forcing

Congress to create the Consolidated Rail Corporation from seven bankrupt carriers in that sec-

tion of the country in the mid-1970s. In the Midwest and the Plains states, the Chicago, Rock

Island and Pacific Railroad and the Chicago, Milwaukee, St. Paul and Pacific Railroad Company

1 All of these properties remain in national handling for health and welfare issues.

2 Support for BLET’s position is contained in hard-copy exhibits (page numbered herein “BLETX ___”) filed with this Submission. For the Board’s convenience, all of the exhibits also are contained on a compact disk, which is attached to the back of this Submission.

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had declared bankruptcy, leading Congress to enact specific legislation addressing the fallout.3

Three years later, the entire industry was substantially deregulated.4

In response to this broad financial crisis, the union agreed in 1978 to a significant altera-

tion of the national pay structure that allowed the carriers to pay new hires, during the first

twelve (12) calendar months of employment in which service was rendered in a capacity other

than locomotive engineer “90% of the applicable rates of pay (including COLA) for the class and

craft in which service is rendered, exclusive of arbitraries and/or special allowances which shall

be paid at the full amount.” See Article IX of the July 26, 1978 National Agreement (BLETX 2).

The next round of bargaining ended in a 1982 strike that led Congress to impose the rec-

ommendation of Presidential Emergency Board (“PEB”) No. 194 that a Study Commission be

established to “investigate and consider” numerous collective bargaining subjects, with the

Chairman to make “non-binding recommendations to the parties for disposing of all unresolved

issues.” The parties agreed that entry rates would be among the subjects referred to the Study

Commission.

The Study Commission, chaired by Arthur T. Van Wart, issued its Report and Recom-

mendations on December 8, 1983. The Report succinctly described the economic backdrop for

the Commission’s recommendations:

Although the railroads have dramatically increased their business, competition from other modes of transportation has reduced the overall share of the market going to the railroads. While the total tonnage shipped has increased, the size of the nation’s rail system has de-clined. Over the last decade alone, trackage has declined by 30,000 miles, and there has been a loss of over 100,000 railroad jobs. In fact, employment declined from 1,276,000 employees in 1951 to less than 350,000 in late 1982, almost 1,000,000 less employees.

3 See Rock Island Railroad Transition and Employee Assistance Act, Pub. L. 96-254 (May 30,

1980), and Milwaukee Railroad Restructuring Act, Pub. L. 96–101, 93 Stat. 736 (Nov. 4, 1979).

4 See Staggers Rail Act of 1980, Pub. L. 96–448, 94 Stat. 1895 (Oct. 14, 1980).

3

Study Commission Report at p. 2 (BLETX 4). The Chairman saw the Study Commission’s

charge as conducting “an intensive review and possible resolution of the operating crafts basic

pay concepts, the structure and application of work rules (including the whole range of arbitra-

ries)” in order to address a perceived “‘need to modify long-established work rules and practices

to conform to changing conditions.’” Id. at pp. 3, 4 (quoting Report of PEB 194) (BLETX 5, 6).

The cornerstone of the carriers’ argument for wholesale changes to the locomotive engi-

neer compensation structure was “the perilous financial conditions of the industry,” and they “as-

sert[ed] that there is no doubt but that several carriers are operating on the thinnest of margins

and that the rate of return for the industry as a whole remains at woefully inadequate levels.”

Id. at p. 13 (BLETX 7). While the carriers contended “that a case [for these changes] could be

made on this basis alone,” they pointedly declined to place all their eggs in this single basket.

Rather, they urged the Study Commission “to consider these proceedings in the context of an op-

portunity for the entire industry … to contribute to the restoration of the industry to the eminent

position that it occupied in an earlier era ….” Id.

With specific reference to entry rates and the two-tiered pay system, the carriers proposed

(1) a “progressive rate schedule to apply to new employees predicated on an entry rate of 74% of

the present basic rate to be increased annually at 1.7%,” and (2) replacing the hourly/mileage ba-

sis of road pay with an hourly rate construct, with overtime after 80 hours in any half-month pe-

riod; this construct would apply immediately to new hires, and also to then-employed locomotive

engineers after a 10-year period. Id. at p. 36 (BLETX at 8). Chairman Van Wart declined to rec-

ommend the carriers’ radical proposal; instead, he recommended a series of changes to the dual

basis of pay for current locomotive engineers that were designed to slow the growth of earnings.

Id. at pp. 159–162 (BLETX 10–13). As for new employees, there were two recommendations —

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that rates of pay “should be established at least 20% below that of a present employee,” and that

entry rates “should be set at 70% of the adjusted rate to be increased at the rate of 6% per year

until full rate is achieved” at the end of five years of service. Id. at p. 158 (BLETX 9).

These recommendations were addressed in the next round of bargaining, which culmi-

nated in arbitration. Article IV, Section 6 of the Award of Arbitration Board No. 458 (May 19,

1986) (“458 Award”) established a five-year entry rate progression so that all “applicable ele-

ments of compensation for an employee whose seniority in engine or train service is established

on or after November 1, 1985, will be 75% of the rate for present employees and will increase in

increments of 5 percentage points for each year of active service in engine and/or train service

until the new employee’s rate is equal to that of present employees.” BLETX 19. In addition to

this reduction in rates of pay, the Award (Article IV, Section 5(a)) provided that all duplicate

time payments, including arbitraries and special allowances that are expressed in time or miles or

fixed amounts of money, would not apply to new employees and (Article VI, Section 2(b)) gen-

erally reduced payments for deadheading that was separate from service for these “post-85” hires

from a day’s pay to time consumed; it also (Article VII, Section 1(c)) made them ineligible for

the 48-minute allowance payable for three years on road switcher, mine run and roustabout as-

signments that were reduced from six or seven days per week to five days per week. BLETX 18,

21, 22. Finally, the Award (Note to Article VIII, Section 2(a)) denied new hire (i.e., “post-85”)

employees extra compensation for yard service performed outside agreed-upon switching limits

and included a Side Letter (No. 9A) that had the effect of requiring new hires to work longer

than existing engineers before overtime payments would commence. BLETX 26–27.

5

The carriers achieved additional pay concessions in the next bargaining round. Article

IV, Section 1(a) of the November 7, 1991 Agreed-Upon Implementation of Public Law 102–295

increased the mileage comprising the basic day over the term of the Agreement from 108 to 130,

the number still in effect today. BLETX 29. This in turn increased the overtime divisor from

13.5 miles per hour to 16.25 miles per hour. However, the application of the increased overtime

divisor was not uniform because of Side Letter No. 9A of the 458 Award (BLETX 26), which

stated in relevant part that

overtime rules in interdivisional service that are more favorable to the employee than Ar-ticle IV, Section 2, of this Agreement will continue to apply to employees who estab-lished seniority in engine service prior to November 1, 1985 while such employees are working interdivisional runs established prior to June 1, 1986.

* * *

The overtime provisions of Article IV, Section 2, of this Agreement will apply to em-ployees who established seniority in engine service prior to November 1, 1985 while such employees are working interdivisional runs established subsequent to June 1, 1986. They will also apply to employees who established seniority in engine service on or after No-vember 1, 1985 regardless of when the Interdivisional runs on which they are working were established.

When first enacted in 1907, the hours of service (“HOS”) laws established sixteen (16)

hours as the maximum length of time a locomotive engineer could be on duty without having had

at least eight (8) hours off duty during the 24-hour period preceding the start of the duty tour.

That 16-hour maximum was reduced to fourteen (14) hours in 1969, and to the current level of

twelve (12) hours in 1971. 49 U.S.C. § 21103. When 100 miles comprised the basic day — and

the overtime divisor was 12.5 — as a practical matter road overtime would not accrue if a run

was longer than 200 miles (pre-1969), 175 miles (1969-1971) and 150 in the post-1971 era.

As an inducement for the Organization to enter into productivity-increasing interdivision-

al run agreements, the carriers routinely included provisions in such agreements to pay road 5 That law provided that the recommendations of Presidential Emergency Board No. 219, as clari-

fied and modified by Special Board 102–29, would be binding upon the parties.

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overtime on any trip that exceeded 12 hours total time on duty, regardless of the length of the

run.6 It is this provision that the savings clause in Side Letter No. 9A preserved. Effectively,

then, any run longer than 195 miles generates road overtime for pre-85 engineers under such

agreements, but post-85 engineers have to run off all miles at 16.25 miles per hour. Consequent-

ly, engineers hired post-85 receive considerably less road overtime than their pre-85 cohorts:

Miles Post-85 Pre-85 Difference Run OT after OT after in OT pay 195 12:00 12:00 0:00 200 12:19 12:00 0:19 225 13:51 12:00 1:51 250 15:23 12:00 3:23 275 16:55 12:00 4:55 300 18:28 12:00 6:28 325 20:00 12:00 8:00 350 21:32 12:00 9:32 375 23:05 12:00 11:05 400 24:37 12:00 12:37 425 26:09 12:00 14:09 450 27:41 12:00 15:41 475 29:14 12:00 17:14 500 30:46 12:00 18:46

During that round of bargaining the Rail Safety Improvement Act of 1988 (“1988

RSIA”), Pub. L. 100–342, 102 Stat. 624 (Jun. 22, 1988) (BLETX 34–50) was enacted. This new

law injected a level of oversight and individual accountability for all locomotive engineers, re-

gardless of hire date, far beyond that which previously existed.7 In addition, FRA promulgated

6 See, e.g., Section 8(f) of the January 13, 1984 BLE–BN Memorandum of Agreement in re intra-

seniority district service between Lincoln, Nebraska, and Kansas City, Missouri (“If an engineer who is working (or deadheading) in this long pool service is tied up under the Hours of Service Act before com-pleting the trip, he will be paid on a minute basis at the rate of 3/16 of the basic daily rate per hour (12½ MPH for deadheading) applicable to his trip from the expiration of the legally permissible ‘on duty’ hours until he arrives at (1) the fixed on/off duty point in either Kansas City or Lincoln, or (2) a location where lodging and meals are available, whichever occurs first.”). BLETX 33.

7 The law came in response to the tragic January 4, 1987, Chase, MD, collision between a Conrail engine and an Amtrak passenger train which killed sixteen and injured 174 people. Among other things, it provided: engineers would be civilly liable for violations of federal rail safety laws and regulations for the first time, and empowered the Federal Railroad Administration (“FRA”) to bar individuals from work-ing in safety-sensitive positions (see 49 C.F.R. Part 209, Subpart D and Appendix A); FRA would require

7

an expansive regulation governing the use of alcohol and drugs by safety-critical railroad work-

ers.

Against this background, the fundamental unfairness of entry rates and the two-tiered pay

system became evident. All locomotive engineers — including those in the entry rate progres-

sion and post-85 engineers — now were subject to the full panoply of stringent federal accounta-

bility measures, including periods of suspension and revocation of certification that are not

discounted to compensate for a substandard rate of pay.

The parties partly responded to these disparities in the May 31, 1996 National “Core”

Agreement. Article VIII narrowed the gap between the pre-85 and the post-85 engineers slightly

by prospectively stepping up an employee to the next level in the wage progression upon promo-

tion to locomotive engineer. BLETX 133–134. The effect of this change was to increase the

newly-promoted engineer’s pay rate five percent (5%) — by advancing the implementation of

the next scheduled progression step to coincide with promotion — for a period ranging from

1 day to 364 days, depending upon how far the promotion date preceded the next scheduled ad-

justment. However, the post-85 hire still would not earn the full rate until he/she completed five

(5) years’ service.

Meanwhile, the industry began to recover as deregulation under the Staggers Act elimi-

nated regulatory consideration of the labor impact of the many railroad transactions.8 This pro-

that locomotive engineers be federally licensed or certified (see 49 C.F.R. Part 240); event recorders would be installed on locomotives (see 49 C.F.R. § 229.135); and regulations be issued making it unlaw-ful to tamper with or disable safety or operational monitoring devices (see 49 C.F.R. Part 218, Subpart D and Appendix C; 49 C.F.R. § 240.305(a)(5)). BLETX 51, 71, 119, 125, 97.

8 The only line sales and leases that continued to require broad labor protections that date back to the Transportation Act of 1920 were those involving solely Class I carriers. All other sales and leases became subject to a vastly abbreviated “exemption” process, under which a transaction can be denied on-ly if the Interstate Commerce Commission — or the Surface Transportation Board, its successor — finds the transaction to be “inconsistent with the public convenience and necessity.” See 49 U.S.C. §§ 10901(c),

8

duced a staggering transformation of the industry both operationally and financially, triggering a

renaissance that continues to this day. Class I railroads spun off tens of thousands of miles of

road, shop and maintenance facilities, and switching operations. Between 1975 and 1999 the

number of Class I railroad employees plummeted by an additional 64%; at the same time, labor

productivity increased by 421%.9 Furthermore, a veritable orgy of consolidation triggered by the

creation of Conrail saw the number of Class I carriers shrink from 56 in 1975 to a mere 7 — two

of which are Canadian-owned — by 2005.10 All the while the carriers enjoyed a premium from

the obvious labor cost savings generated by paying employees at lower rates.

The parties’ first step to reduce the gap between pre-85 and post-85 locomotive engineers

came with the adoption of a “trip rate” rule for through freight service in Article V of the De-

cember 16, 2003 National Agreement. BLETX 138–147. In pools where they are implemented,

trip rates are based on actual earnings — typically for a 12-month period of “normalized opera-

tions” — of pre-1985 engineers for “national pay elements” identified as follows: mileage or

time; terminal/departure/ yard runarounds; conversion of the assignment to local freight rates;

payments made in lieu of being afforded meal periods, and penalty payments attributable to vi-

olations of rules relating to employees eating en route in through freight service; payments re-

sulting from being required to “step up” in the pool (i.e., taking a turn in the pool earlier than

10902(c). BLETX 135, 136. If a Class II carrier is involved in the transaction, the sole labor protection is “one year of severance pay … reduced by the amount of earnings from railroad employment of the em-ployee with the acquiring carrier during the 12-month period immediately following the effective date of the transaction.” 49 U.S.C. § 10902(d). BLETX 136.Moreover, there is an express statutory prohibition against the STB requiring any form of labor protection as a condition of its approval of a transaction when a Class III railroad (id.) or a so-called “non-carrier” (49 U.S.C. § 10901(c)) is involved. BLETX 135.

9 Association of American Railroads, Railroad Facts (Washington, DC): annual issues, available at http://www.bts.gov/publications/transportation_statistics_annual_report/2000/chapter2/restructuring_ and _consolidation_of_transportation_industries_fig1.xls (last visited Sep. 21, 2011).

10 Slack, Dr. Brian, Rail Deregulation in the United States, available at http://people.hofstra.edu/ geotrans/eng/ch9en/appl9en/ch9a1en.html (last visited Sep. 21, 2011).

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would otherwise be the case due to other sources of supply being exhausted); initial terminal de-

lay; final terminal delay; deadheading; and terminal switching (initial, intermediate and final).

This change was implemented over a 30-month period, after which any post-85 engineers work-

ing in through freight service not covered by a trip rate became entitled to pre-85 conditions for

the “national pay elements.”11 However, the prevailing disparate overtime calculation rules con-

tinued to apply.

The 2003 National Agreement did advance the entry rate schedule for employees with a

train service or an engine service seniority date earlier than July 1, 2004, providing that they

would immediately “be compensated … at the full rate of the position when working as a loco-

motive engineer.” BLETX 148. The distinction thereafter applied the 5-year entry rate schedule

only to post-7/1/04 engineers. The 2003 Agreement also allowed the applicable reduced entry

rate to be applied to the newly-created trip rates. Id.

The insufficiency of the pace and substance of these reforms led some of the carriers to

agree to changes in the context of merger-related implementing agreements and on-property bar-

gaining:

• BNSF Railway: The 1996 On-Property Agreement amended the entry rate sche-dule to provide that “[e]very locomotive engineer will be compensated at full (100%) rates when actually working as an engineer, including while assigned to engineers’ guaranteed extra board,” but “[a]ll other compensation, including but not limited to deadheading compensation, will be subject to applicable entry rate progressions.” (Article XIV). BLETX 149.

• CSX Transportation, Inc.: The Single System Agreement in 2007 amended the entry rate schedule by providing, among other things, “a five percent (5%) rate increase [in the schedule upon] obtain[ing] … Engineer certification,” with a min-imum rate “not less than eighty-five percent (85%) of the daily rate.” Further, that such employees “will receive a five percent (5%) increase one (1) year from the anniversary date of their certification [and after] reaching ninety (90%) under

11 The immediate impact of this provision was dampened somewhat because the 2003 National

Agreement also paid a $1,200 “longevity bonus,” for which only pre-85 engineers could qualify.

10

this progression, an Engineer will attain one hundred percent (100%) of the daily rate the second year after the anniversary date of his certification.” (Article 3.B). BLETX 152.

• Norfolk Southern Railway: The 1996 On-Property Agreement provided that an employee “shall have his position on the rate progression scale adjusted to the next higher level upon promotion to engineer.” That increased rate applied “re-gardless of the craft in which they are working, until such time as they reach the next rate step.” See Art. VIII, Section 1(a) and Q&A #1 (BLETX 154–156). In 2000, the 5-year entry rate schedule beginning at 75% was replaced with a 3-year timetable beginning at 85%, and provided an immediate 10% bump (up to a max-imum of 100%) for those who had not completed the schedule. (Article III). Pre-85 deadheading rules became applicable to post-85 employees. (Article IV). BLETX 157–158.

• Union Pacific Railroad: In the implementation of the Carrier’s “hub-and-spoke” operation in the late 1990s, numerous hub Merger Implementing Agreements (“MIAs”) provided that employees working in the hub became entitled to the full rate upon promotion to locomotive engineer.12

However, no further changes have been made at the national level, and the July 1, 2007

National Agreement left the entry rate schedule and two-tiered pay system intact. Thus, the par-

ties find themselves in an anomalous situation, whereby the national standard has become se-

riously out of balance with significant portions of the industry, undermining multi-union, multi-

employer bargaining in terms of core compensation.

Various Presidential Emergency Boards have addressed the rationale for entry rates.

However, none of the justifications offered by those PEBs support continuation of the entry rate

schedule for locomotive engineers. In a railroad shop craft setting, entry rates have been justi-

fied on the basis that they are “simply a recognition of the fact that people who are not fully

trained in the craft are of less value to the employer.” Report of PEB 230 at p. 16 (NCCC and

IAMAW/IBEW/SMWIA, Jun. 23, 1996) (BLETX 176) (emphasis added). That being said, a

12 See, e.g., Denver Hub MIA at Art. II.I; Kansas City Hub MIA at Art. IV.H; Salina Hub MIA at

Art. II.B; Salina Hub (expanded) MIA at Art. IV.C; Salt Lake Hub MIA at Art. II.J; San Antonio Hub MIA at Art. VI.D. BLETX 159, 161, 165, 168, 170, 174.

11

broad brush approach should be avoided, as “[t]here is some merit … in applying lower entry

rates and wage progression [only] to those working in lower-paying positions, in as much as

they are likely to be less productive until they master the full range of their job duties.” Report

of PEB 221 at p. 13 (Conrail and BMWE, May 28, 1992) (BLETX 179) (emphasis added).

Moreover, a significant modification of an entry rate schedule is appropriate when the existing

schedule leaves employees “precariously close to the poverty level.” Report of PEB 229 at pp. 7,

31 (NCCC and BMWE, Jun. 23, 1996) (5-year schedule beginning at 75% of scale replaced by

2-year schedule beginning at 90%) (BLETX 182). Modification of an entry rate schedule also is

appropriate when the schedule “merely provide a means to permit the Carriers to pay less than

the job rate … because very little training is required and no additional responsibilities or duties

are assumed at each step in the classification.” Report of PEB 166 at pp. 6–7 (East-

ern/National/Northwest/Trans World/United Airlines and IAMAW, Jun. 5, 1966) (initial entry

rate and next-to-final rate eliminated) (BLETX 185).

These justifications simply don’t apply in the engineers’ context. The “not fully trained”

standard enunciated by PEB 230 is inapplicable to a certified locomotive engineer, because

FRA’s certification regulation requires that each railroad’s engineers be equally trained, quali-

fied, examined and certified in order to operate a locomotive; the same will shortly be true of

conductors in order to work as same. See 49 U.S.C. § 20163 (“Certification of train conductors”)

(BLETX 188); 75 Fed. Reg. 69166–69219 (Nov. 10, 2010) (FRA Notice of Proposed Rulemak-

ing). These FRA requirements mandate that certified employees — in the words of PEB 221 —

“master the full range of their job duties” as a precondition to working in the craft.

Compounding matters is the fact that the primary remaining vestige of the two-tiered pay

system — the disparate calculation of road overtime — suggests that post-85 engineers provide

12

“less value” (PEB 230) or “less productivity” (PEB 221) than their pre-85 peers. But that sug-

gestion is not supportable. The post-85 engineers must provide substantially more value and

more productivity than pre-85 engineers because they must operate a significantly greater num-

ber of miles in road freight service before they accrue overtime. See p. 6, supra.

Continuation of the entry rate schedule and the two-tiered pay system at this time “merely

provide[s] a means to permit the Carriers to pay less than the job rate” and flies in the face of

daunting uniform federal requirements and penalties. Rail safety laws and FRA regulations do

not distinguish pre-85 employees from post-85 employees; they make it irrelevant whether

someone is a 1-year, 2-year, 3-year, 4-year, 5-year, or more veteran employee as the sanctions

and the punishments are the same in every case. It is an anachronism for the entry rate schedule

and the two-tiered pay system to continue in light of the present circumstances. Accordingly, the

BLET respectfully requests that this Honorable Board recommend they be eliminated.

B. Away-from-Home-Terminal Meal Allowances

For the reasons set forth below, we request that the Board recommend adoption of the

away-from-home-terminal meal allowance provision contained in the BLET Collective Bargain-

ing Agreement with CSX Transportation, Inc., as the national standard. BLETX 191. That rule

provides that when a road engineer is tied up at other than the designated home terminal for four

(4) hours or more, he/she receives a base meal allowance, with an additional meal allowance af-

ter being held an additional twenty (20) hours; subsequently additional allowances are paid for

every eight (8) hour period or fraction thereof, spent at the away-from-home-terminal after the

initial twenty-four (24) hours. Including COLA adjustments made since the rule’s adoption, at

the present time the base meal allowance amount is $20.39 and the additional allowance amount

is $10.20.

13

The obligation to provide meal allowances to road crews at their away-from-home-

terminal first became a condition of employment in the June 25, 1964 National Agreement. Ar-

ticle II, Section 2 stated:

When the carrier ties up a road service crew (except short turnaround passenger crews), or individual members thereof, at a terminal … other than the designated home terminal for four (4) hours or more, each member of the crew so tied up shall receive a meal al-lowance of $1.50.

BLETX 196. Since then, the national meal allowance has changed as follows:13

Effective date Amount 1st trigger 2nd trigger 06/25/1964 $1.50 4 hours none 05/13/1971 $1.50 4 hours 8 more hours 02/09/1972 $2.00 4 hours 8 more hours 10/01/1978 $2.75 4 hours 8 more hours 12/01/1982 $3.85 4 hours 8 more hours 07/01/1986 $4.15 4 hours 8 more hours 11/01/1991 $5.00 4 hours 8 more hours 11/01/1994 $6.00 4 hours 8 more hours

In addition to the above evolution, the Board should know that after the Rail Labor Bar-

gaining Coalition (including the BLET) established the pattern settlement for the industry in the

last round of bargaining, the United Transportation Union negotiated an increase in the meal al-

lowance for the employees it represents from $6.00 to $8.00, effective January 1, 2010. See July

1, 2008 NCCC–UTU National Agreement at Article V. BLETX 212.14 This marked the first

13 Article VIII of the May 13, 1971 National Agreement amended the rule to provide for “a $1.50

meal allowance after 4 hours at the away from home terminal and another $1.50 allowance after being held an additional 8 hours.” Next, a February 9, 1972 Letter Agreement increased the allowance to $2.00. Then, Article VI of the July 26, 1978 National Agreement increased the allowance from $2.00 to $2.75 effective October 1, 1978. Article IX of the September 28, 1982 National Agreement increased it from $2.75 to $3.85 effective December 1, 1982. The meal allowance was increased from $3.85 to $4.15, ef-fective July 1, 1986, pursuant to Article XIV of the May 19, 1986 Award of Arbitration Board No. 458. Lastly, Article VII of the November 7, 1991 Agreement Implementing the Recommendations of Presiden-tial Emergency Board No. 219 provided for a two-step increase: from $4.15 to $5.00, effective Novem-ber 1, 1991, and from $5.00 to $6.00, effective November 1, 1994. BLETX 199, 201, 203, 205, 207, 209–210.

14 Also, similar to what occurred concerning the entry rate progression, some NCCC members agreed in recent years to increase the meal allowance because of lack of movement at the national table. For example, Article 4 of the 2007 BNSF On-Property Agreement provided for a July 1, 2007 increase

14

time meal allowance parity was not maintained among operating employees in a national bar-

gaining round.

When compared both to changes in the Consumer Price Index (“CPI”)15 and to subse-

quent general wage increases, it is immediately apparent that the value of the meal allowance has

plummeted since it was last adjusted nearly 17 years ago. As shown in the following chart, when

adjusted for the CPI, through the August 2011 report (which went up by nearly 52% over the pe-

riod), the $6.00 meal allowance that became effective in 1994 is currently worth $3.96; its value

is $4.14 if discounted for subsequent unapplied general wage increases, which shows the decline

against wage rates.

“from $6 to $8, and this $8 meal allowance will then be subject to any subsequent general wage increases and/or COLAs.” BLETX 214. CSXT adopted a comprehensive, time-based and self-adjusting meal al-lowance. See p. 17, infra. BLETX 193. On NS, the meal allowance was increased from $6 to $9 in the 2003 On-Property Agreement (Art. VII), and from $9 to $12 in the 2008 On-Property Agreement (Art. VI). BLETX 215, 218.

15 For purposes of this analysis we have used the Consumer Price Index, All Items, 1967=100 for Urban Wage Earners and Clerical Workers (CPI-W) (not seasonally adjusted), which is the index tradi-tionally used by the parties to calculate cost-of-living allowances and in adjusting meal allowances paid pursuant to the BLET’s Collective Bargaining Agreement with CSX Transportation, Inc., which we pro-pose the Board recommend as a resolution of this issue.

15

Had those subsequent general wage increases been applied to the meal allowance, it would pre-

sently be $8.60. If the allowance had been adjusted to reflect changes in the CPI, it would be

$9.10 after application of the August adjustment. This is compelling evidence of an immediate

need for a substantial increase in the allowance.

$3.00

$3.50

$4.00

$4.50

$5.00

$5.50

$6.00

$6.50

Erosion of Meal Allowance

CPI-W GWIs Linear (GWIs)

$5.00

$5.50

$6.00

$6.50

$7.00

$7.50

$8.00

$8.50

$9.00

$9.50

Maintaining the Meal Allowance


16

Such an increase clearly is not unprecedented. Over the past three decades, Presidential

Emergency Boards have consistently recommended increases in meal allowances:

• In 1982, PEB 194 recommended an increase in the meal allowance “that will restore the real value of the meal allowance when it was last increased in 1978.” Report of PEB 194 at p. 15 (NCCC and BLE, Aug. 19, 1982) (BLETX 220); see also Report of PEB 195 at p. 14 (NCCC and UTU, Aug. 20, 1982) (BLETX 222).

• Six years later, PEB 214 recommended the union-proposed increase in the $2.25 meal al-lowance to $5.00, and in the $4.50 meal allowance to $10.00 — each a more than 122% increase — “in view of the substantial change in food prices since the present level was initiated.” Report of PEB 214 at p. 12 (PATH and TCU-Carmen, Aug. 9, 1988) (BLETX 224).

• Four years after that, PEB 222 cited parity with a previously-negotiated UTU agreement with the Carrier as the basis for increasing the meal allowance for passenger engineers. Report of PEB 222 at p. 43 (Amtrak and ATDA, BLE, BMWE, IAMAW, IBEW, and JCC, May 28, 1992) (BLETX 226).

• In 1993, PEB 223 recommended increasing meal allowances from $5.00 to $8.00 for maintenance of way employees and supervisors, and for carmen. Report of PEB 223 at p. 17 (LIRR and UTU, Dec. 17, 1993) (BLETX 228).

• Thirty months later, PEB 229 recommended significant meal allowance increases in two steps: the first step immediately would increase existing meal allowances of $4.75, $9.50 and $14.50 to $6.25, $12.75 and $19.00, respectively; and the second step — to be effec-tive approximately two years later, would increase the adjusted meal allowances to $7.00, $14.25 and $21.25. Report of PEB 229 at p. 33 (NCCC and BMWE, Jun. 23, 1996) (BLETX 230). The first increase ranged from 31.03% to 34.21% and averaged 32.27%, and the second increase ranged from 11.76% to 12% and averaged 11.87%. Overall, the meal allowance increases recommended by PEB 229 ranged from 46.55% to 50% and averaged 47.97%.

• Most recently, PEB 242 recommended a 20% increase in meal allowances for mainten-ance of way employees — from $29.50 to $35.40, because of “the length of time since the last adjustment (which took place in December 1997), increases in the cost of food and meals in the intervening period (which were greater than 20%), and the increases in the meal allowance negotiated as part of the 2000-05 Freight Agreement.” Report of PEB 242 at p. 41 (Amtrak and ARASA, ATDA, BMWED, BRS, IAMAW, IBEW, and JCC/NCFO, Dec. 30, 2007) (BLETX 232).

Furthermore, rather than applying one of the varied formulas adopted in the past, the

Board should recommend ending the cycle of constantly shrinking meal allowances that are ad-

justed only long after the fact. To that end, we request that the Board recommend inclusion in

17

the National Agreement of the current meal allowance provision in the BLET Collective Bar-

gaining Agreement with CSXT, which states as follows:

When [the Carrier] ties up a road service engineer (except short turnaround passenger Engineers) at other than the designated home terminal for four (4) hours or more, the En-gineer will receive a meal allowance of twenty dollars ($20.00) and an additional meal al-lowance in the amount of ten dollars ($10.00) after being held an additional twenty (20) hours. Subsequent thereto, an additional ten dollars ($10.00) will be paid for every eight (8) hour period or fraction thereof, spent at the away from home terminal after the initial twenty-four (24) hours. All meal allowances shall be payable with a COLA adjustment. COLA payments shall be payable in a manner set forth in and subject to the provisions and on the basis of the Consumer Price Index for Urban Wage Earners and Clerical Workers (Revised Series) (CPI-W) (1967=100%), U.S. Index, all items unadjusted, as provided, as published by the Bureau of Labor Statistics, U.S. Department of Labor and hereafter referred to as the CPI. The first COLA adjustment of the meal allowance must occur in the first half of 2009.

See System Agreement CSXT No. 1–023–07 at Article 8.A (BLETX 193).16

Given increased concerns over mental acuity and fatigue among operating crews — to

the point that Congress completely overhauled the hours of service laws in 2008 — it is ludicr-

ous to suggest that a meal allowance that cannot fully pay for a McDonald’s “Extra Value Meal”

in many areas of the country is appropriate, much less nutritious or healthy. It is time for the in-

dustry to provide locomotive engineers with a realistic and reasonable meal allowance.

C. Certification Allowance

In this Section we show why the Board should recommend an immediate increase in the

certification allowance to $10.00 per trip or tour of duty, and further recommend that the in-

creased allowance be subject to future general wage increases. Last month marked the 20th anni-

versary of the implementation of FRA’s locomotive engineer certification regulation. The

burdens imposed upon locomotive engineers by FRA’s rule are prodigious. Rigorous training,

16 The application of the COLA increased the $20.00 base meal allowance to $20.18, effective Jan-

uary 1, 2010, and to $20.39 one year later. The additional allowance amount was increased from $10.00 to $10.09, and application of the COLA produces a $10.20 supplemental allowance.

18

examination, and operational monitoring and testing requirements must be met in order to be-

come and remain certified. Mandatory revocation of certification occurs when a violation of a

FRA “cardinal sin” occurs, whether in compliance testing circumstances, during operational

monitoring or in real life. Appended hereto, as Attachment A, is a detailed history of FRA’s Lo-

comotive Engineer Certification regulation, and the establishment of the BLET Locomotive En-

gineer Certification Allowance.

There are two sound reasons this Board should recommend increasing the current certifi-

cation allowance. One is that the current allowance has lost considerable value since it was es-

tablished over fourteen (14) years ago. The other is that the impending publication of FRA’s

final rule concerning conductor certification is about to dramatically reshape the locomotive en-

gineer’s workplace in a negative way in two respects. First, the safe harbor of working a con-

ductor’s position when a locomotive engineer certification revocation period exceeds the

concurrent disciplinary suspension will no longer be available. And, second, when conforming

amendments are made to Part 240, a locomotive engineer will be subject to twice as many revo-

cation-triggering “cardinal sins.”17

17 The Board should reject any suggestion that our request is merely an effort to convert the $5.00

conductor certification allowance recently given the UTU into an undeserved wage increase for locomo-tive engineers. The voluntary nature of the UTU settlement — in contrast to the establishment of the lo-comotive engineer certification allowance via interest arbitration that occurred after, and above, pattern settlement resolution of bargaining — establishes that the UTU allowance is part of the overall economic package, as we indicated in our joint presentation on wages and benefits. Further, as shown below, the impact of inflation over the past 14 plus years has reduced the value of the locomotive engineer certifica-tion allowance to the point where it actually is worth barely 70% of the conductor certification allowance. Finally, the substantial changes on the horizon to Part 240 due to the promulgation of Part 242 effectively doubles the risk that Arbitration Board No. 564 intended to mitigate when it awarded the original $5.00 allowance in 1997.

19

When compared to both changes in the CPI18 and to subsequent general wage increases,

it is quite apparent that the value of the certification allowance has been seriously eroded since it

was established over 14 years ago:

When adjusted for the CPI, through the August 2011 report, the $5.00 certification allowance

that became effective in March of 1997 is currently worth $3.52; its value is $3.57 if discounted

for subsequent unapplied general wage increases, which shows the decline against wage rates.

Had those subsequent general wage increases been applied to the certification allowance, it

would presently be $6.92. If the allowance had been adjusted to reflect changes in the CPI, it

would be $7.11 after application of the August adjustment.

18 See n. 15, supra, for details concerning the CPI used in this analysis.

$3.00

$3.50

$4.00

$4.50

$5.00

$5.50

Erosion of Certification Allowance


20

As previously stated, FRA will be publishing a final rule for conductor certification to

become effective on or about January 1, 2012. The Congressional mandate for conductor certifi-

cation directed the FRA to consider the statutory requirements underlying the locomotive engi-

neer certification rule in developing the conductor certification program requirements. 49 U.S.C.

§ 20163(b) (BLETX 188). Among the specific tasks for FRA’s Working Group was to “consider

revisions to 49 C.F.R. Part 240 appropriate to conform and update the certification programs for

locomotive engineers and conductors.” 75 Fed. Reg. 69167 (BLETX 275). One of those con-

forming changes will immediately all but eliminate the current safe harbor by which a locomo-

tive engineer can mitigate his or her economic loss when a revocation period exceeds the

duration of a disciplinary suspension, while another will impose materially greater risk of loss of

certification.

As to the safe harbor problem, FRA acknowledges that some individuals will be certified

both as a locomotive engineer and as a conductor. The proposed rule includes a provision en-

$4.00

$4.50

$5.00

$5.50

$6.00

$6.50

$7.00

$7.50

Maintaining Certification Allowance


21

titled “multiple certifications” that “would permit a person to hold certification … for both con-

ductor and locomotive engineer service,” although the extent to which multiple certifications will

be issued lies within each railroad’s discretion. Id. at 69179 (BLETX 277). Multiple certifica-

tions introduce consequences that do not currently exist for locomotive engineers. The length of

a certification revocation period is determined by a locomotive engineer’s revocation history for

up to 36 months prior to an incident. Thus, there can be and are situations in which the revoca-

tion period is longer than the concurrent disciplinary suspension imposed for the offense.

For example, when a locomotive engineer commits a revocable offense that occurs within

24 months of a preceding revocable offense, the second offense carries with it a revocation pe-

riod of six months. 49 C.F.R. § 240.117(g)(3)(ii). (BLETX 82). Under that carrier’s progressive

discipline schedule, however, the second offense may trigger only a 30-day disciplinary suspen-

sion. In such a situation, the individual is entitled to return to work after serving the disciplinary

suspension, but is prohibited by Part 240 from working as a locomotive engineer. What typically

occurs is that the individual works in train service — usually as a conductor — for the final five

months of the revocation period.19

However, any locomotive engineer in this position would be automatically precluded by

the regulation from working as a conductor unless he/she also is certified by the railroad in that

capacity. Moreover, FRA will eliminate this safe harbor even for employees who have multiple

certifications, because it has determined that “a person who holds a conductor and locomotive

engineer certificate and has his or her engineer certificate revoked would not be permitted to

work as a conductor during the period of revocation.” 75 Fed. Reg. at 69179 (BLETX 277)

19 If the locomotive engineer successfully overturns the revocation before the LERB, it is our expe-

rience that the railroad will then exhaust FRA’s appellate process in an effort to avoid its economic lia-bility.

22

(emphasis added).20 This dramatic change also justifies revisiting the question of what consti-

tutes an appropriate certification allowance.

Regarding the significant increase in the risk of revocation, Part 240 currently includes

six violations for which a locomotive engineer’s certification may be revoked.21 FRA’s Section-

by-Section Analysis of the new conductors’ Part 242 indicates that the governing “circumstances

under which a conductor may have his or her certification revoked,” are “derived from” the ap-

plicable locomotive engineer sections and that the list of “rule infractions that could result in cer-

tification revocation” was “derive[d] from the revocable [locomotive engineer] events provided

in 49 CFR 240.117(e) but … modified to account for a conductor’s duties.” Id. at 69181, 69182

(BLETX 278, 279).

Thus, all of the engineers’ “cardinal sins” were imported into the conductors’ rule, al-

though the conductor’s liability with respect to stop signals and excessive speed arises only when

the conductor “fails to take appropriate action to prevent” a violation by the locomotive engineer.

Id. at 69211 (BLETX 280). In addition, the violation arising from tampering is being ex-

panded.22

20 The fact that a trainman’s assignment (i.e., an assignment that does not require certification as a

conductor) also can serve as a safe harbor offers little solace. There are far fewer trainman positions than conductor positions because the former have been eliminated in crew consist agreements. Moreover, in view of the likely doubling — or worse — in the number of revocations among locomotive engineers and conductors combined, there will be far greater demand for a much smaller group of safe harbor assign-ments.

21 Passing stop signals; excessive speed, including certain violations of the conditional clause (i.e., stopping within half the range of vision) of restricted speed; failure to perform certain federally-required brake tests; occupying main track without proper authority; tampering with a locomotive-mounted safety device; and non-compliance with 49 C.F.R. § 219.101 alcohol and drug requirements. 49 C.F.R. § 240.117(e). BLETX 81–82. The five operational violations also are unlawful, and subject the engineer to potential individual civil liability for willful violations thereof. 49 C.F.R. § 240.305. BLETX 97–98.

22 It now will encompass any “[f]ailure to comply with prohibitions against tampering with locomo-tive mounted safety devices; knowingly fail[ing] to take appropriate action to prevent the locomotive en-gineer of the train the conductor is assigned to from failing to comply with prohibitions against tampering

23

Beyond that, FRA is adding six (6) new violations — all involving rules governing han-

dling of equipment, switches, and fixed derails — for which a conductor’s certification must be

revoked when they “cause reportable accidents or incidents under [49 C.F.R. Part] 225 …, ex-

cept for accidents and incidents that are classified as ‘covered data’ under § 225.5.” Those addi-

tional violations involve non-compliance with rules related to: (1) shoving or pushing

movements; (2) leaving rolling and on-track maintenance-of-way equipment in the clear;

(3) hand-operated switches, including crossover switches; (4) additional operational require-

ments for hand-operated main track switches; (5) additional operational requirements for hand-

operated crossover switches; and (6) hand-operated fixed derails. Id.

Thus, the conductor certification rule will include twice as many revocable offenses as

the engineer rule presently contains. Moreover, FRA has made it clear that it intends to amend

the engineer rule to conform the two regulations as closely as possible, including “adding 49

C.F.R. 218, subpart F violations as revocable offenses” under Part 240. Id. at 69168 (BLETX

276). When the list of revocable offenses set forth in Part 240 is doubled, the change will intro-

duce a regulatory requirement that a locomotive engineer supervise a conductor’s compliance

with Subpart F that does not exist today. The determination whether an engineer “fails to take

appropriate action to prevent” a violation by the conductor is a subjective issue that will be made

solely by the railroad. The time to address the imminent doubling of a locomotive engineer’s

risk of revocation is now.

Because the locomotive engineer’s certification allowance is relatively new, prior PEB

recommendations offer little guidance regarding the circumstances under which an increase is

with locomotive mounted safety devices; or knowingly fail[ing] to take appropriate action to prevent the locomotive engineer of the train the conductor is assigned to from operating or permitting to be operated a train with an unauthorized disabled safety device in the controlling locomotive.” Id.

24

justified. However, to the extent it is appropriate to consider addressing erosion of the certifica-

tion allowance because of inflation, we suggest that the precedents cited for increasing meal al-

lowances are apposite. See p.16 supra. Moreover, it should be noted that Article 7 of the 2007

BLET/BNSF Agreement provided that “[o]n July 1, 2009 and thereafter, Engineers’ Certification

Pay, established by Arbitration Award 564 dated March 12, 1997, will be subject to any general

wage increase and/or COLAs.” BLETX 268.

A relatively recent PEB Report in the airline industry is on point. PEB 236 had to con-

sider whether to raise the premium paid aircraft mechanics for “licenses earned in a two-year

educational program to repair and service airframes and the mechanical components of air-

planes.” Report of PEB 236 at p. 4 (United Airlines and IAMAW, Jan. 19, 2002) (BLETX 296).

At the time, the license premium was $0.66; the union proposed that it be more than tripled in

three steps, to $2.00, then to $2.25 and, finally, to $2.50, for a total increase of over 275%. Id. at

p. 9 (BLETX 297). The context in which it did so is unforgettable. The carrier opposed the un-

ion’s requested increase because “September 11, 2001 forever changed the industry, and as a re-

sult an economic crisis will continue to impact the airlines and industry wages for years to

come.” Id. at p. 13 (BLETX 298). The PEB found “persuasive” the carrier’s argument that cost-

cutting steps previously undertaken “are simply not enough, by themselves, to stave off reorgan-

ization under the bankruptcy laws.” Id. at p. 17 (BLETX 300). Nevertheless, the PEB recom-

mended adoption of the union’s proposal, in part, because the increase “reflects the increasingly

complex nature of the work.” Id. at p. 30 (BLETX 301).

In sum, we urge the Board to recommend adjustment of the locomotive certification al-

lowance because (1) inflation has reduced the value of the current $5.00 allowance significantly

and (2) the looming FRA conductor certification regulation will dramatically increase the risk of

25

revocation for locomotive engineers while simultaneously eliminating the safe harbor of a con-

ductor’s position when an engineer’s revocation period exceeds the length of his/her disciplinary

suspension. Accordingly, we request a recommendation that immediately increases the locomo-

tive engineer certification allowance to $10.00 per trip or tour of duty, and applies all future gen-

eral wage increases to the increased allowance.

D. Improved and Enforceable Minimum Locomotive Cab Standards

Locomotive engineers spend virtually all of their working hours in the cab of a locomo-

tive. Nearly all engineers operate a different locomotive every day, and many operate multiple

different locomotives during a single tour of duty. For the reasons set forth below, the BLET

respectfully requests the Board to recommend that the current National Agreement provisions

governing locomotive cab conditions be amended to: (1) reinstitute the National Committee,

with its scope expanded to include issues arising from operation of locomotives on foreign lines

of road; (2) recodify locomotive cab sanitation conditions to the enumeration of FRA-regulated

conditions and add locomotive cab security, including climate control, glazing and cab door

locking mechanisms, to the list of covered conditions; (3) clarify what constitutes an “unreason-

able” delay in a railroad’s exercise of discretion to not permit replacement of a non-complying

locomotive; and (4) provide for an improved enforcement mechanism.

The FRA has promulgated regulations governing locomotive safety standards. Of partic-

ular relevance here are the minimum safety requirements pertaining to locomotive cabs and cab

equipment at 49 C.F.R. Sections 229.115 through 229.139 (BLETX 338–351).23 These include

23 The enumerated requirements cover slip/slide alarms; speed indicators; cabs, floors and passage-

ways; locomotive cab noise; pilots, snowplows and end plates; headlights and auxiliary lights; cab lights; locomotive horn; sanders; locomotive conspicuity measures / auxiliary external lights; event recorders; and general and servicing sanitation requirements. There also is an overarching requirement that “[a]ll

26

the requirement that the “cab shall be provided with proper ventilation and with a heating ar-

rangement that maintains a temperature of at least 50 degrees Fahrenheit 6 inches above the cen-

ter of each seat in the cab,” and that “[p]roducts of combustion shall be released entirely outside

the cab and other compartments.”

FRA’s regulations expressly state that they only “prescribes[] minimum Federal safety

standards” for locomotives. 49 C.F.R. § 229.1 (BLETX 336) (emphasis added). Nothing re-

stricts a railroad from adopting more stringent safety standards, whether on its own initiative or

through collective bargaining. Indeed, most on-property collective bargaining agreements histor-

ically have addressed various locomotive cab conditions such as potable drinking water and side

window awnings on switching locomotives.

The only significant treatment of locomotive cab working conditions at the national table

came in the 1986 Award of Arbitration Board No. 458. Article XVII, entitled “Locomotive De-

sign, Construction and Maintenance,” “affirm[ed] the carriers’ responsibility to provide and

maintain [safe, sanitary, and healthful cab conditions on locomotives] particularly, although not

limited to, such locomotive cab conditions as: heating, watercoolers, toilet facilities, insulation,

ventilation-fumes, level of cab noise, visibility, lighting and footing.” BLETX 305. It also “rec-

ognize[d] that one way to achieve and maintain safe, sanitary, and healthful cab conditions on

locomotives is by establishing procedures on each railroad for monitoring cab conditions and

expediting the reporting and correction of maintenance deficiencies.” Id.

Article XVII provided for local implementation, beginning at a meeting between a carri-

er-designated officer and the General Chairman/Chairmen on that railroad to “[r]eview the poli-

cies on the individual railroad concerning the existing procedures for reporting and correcting

systems and components on a locomotive shall be free of conditions that endanger the safety of the crew, locomotive or train.” 49 C.F.R. § 229.45 (BLETX 337).

27

locomotive deficiencies, assess the effectiveness of such procedures, and, where appropriate, es-

tablish methods for obtaining more satisfactory results.” BLETX 305. It also required the insti-

tution of a program whereby local BLET representatives and carrier supervisors at each facility

could directly discuss defect reporting and maintenance problems, and evaluate the reports and

suggestions of either party to resolve these problems. Id. The parties also agreed that, before

making any design and construction changes in locomotives that alter safety or comfort features

of the locomotive, the designated officer of each individual railroad will contact the General

Chairman/Chairmen to provide an opportunity to furnish the carrier with his/their recommenda-

tions “for full and thoughtful consideration by the carrier,” without either party “disturb[ing] ex-

isting local agreements that set forth required specifications for particular locomotive

appurtenances or components.” BLETX 306–307. That Agreement also established a national

committee to review and make recommendations with respect to maintenance problems referred

to it by either party after efforts to resolve the matter on the property had been exhausted, and to

consider any matter where the parties on an individual property jointly conclude that the subject

matter is one that may be addressed more appropriately at the national level. BLETX 305.

These portions of Article XVII generally appear to have functioned as intended over the

years. However, for reasons that are discussed below, evolving technological developments and

locomotive usage procedures have complicated local oversight, particularly with respect to lo-

comotive cab design. Moreover, as generally satisfactory as the oversight provisions of Ar-

ticle XVII have proven to be, the enforcement provisions set forth in Section 2 have been equally

ineffective.

Section 2 begins with the laudatory statement that a “locomotive will not be dispatched

in road service from engine maintenance facilities where maintenance personnel are readily

28

available, and an engineer will not be required to operate the locomotive pending corrective ac-

tion, if the engineer registers a timely complaint with supervision with respect to the controlling

unit of the consist that is determined on investigation to be valid concerning” the existence of a

FRA defect with respect to ventilation; cab lights; cab noise; cabs, floors and passageways (e.g.,

footing, cab seats, vision, and heat); and matters of cab sanitation, which have since become re-

gulated. BLETX 306. Section 2 states that if there is another unit in that consist or otherwise

readily available that will eliminate the protest, the units will be rearranged if the complaint is

found to be valid.

So far, so good; however, Section 2 also enumerates a litany of exceptions and conditions

— all under the control of the carrier — that renders the “right” to a safe, comfortable and FRA-

compliant locomotive cab largely illusory. Id. If a carrier official makes a “good faith determi-

nation that the locomotive is suitable for dispatch,” the engineer must accept it. Id. The railroad

has the exclusive right to determine whether the engineer “invoke[d] the … right in good faith

and where a reasonable person would conclude that the carrier is in substantial non-compliance,

i.e. more than technical non-compliance,” even though FRA regulations do not distinguish be-

tween substantial and technical non-compliance. Id. (emphasis added) The railroad is empo-

wered to label a complaint unreasonable on the basis of “the timeliness of the complaint, the

accessibility of the means to take corrective action, the seriousness of the deficiency, and the en-

gineer’s ability or inability to correct the deficiency with means at his disposal.” Id. Even when

an engineer successfully runs this gauntlet, the railroad still may order him/her to take a defective

locomotive and may deny a request for rearrangement of the locomotive consist if — in the rail-

road’s sole judgment — “an unreasonable delay to the train” will result by according the engi-

neer his/her Article XVII rights. Id.

29

The quarter century that has passed since Article XVII was added to the BLET National

Agreement has seen vast changes regarding what constitutes an acceptable work environment for

locomotive engineers. New locomotives roll off the assembly line equipped with sophisticated,

state-of-the-art electronics — including on-board computers — mandating air conditioning to

regulate the environmental temperatures for those components. Substantial numbers of trains

operate from coast to coast, and from border to border, without ever changing locomotive con-

sists, forcing locomotive engineers to have to cope with an inconsistent, ever-changing array of

cab working conditions.24

Much more is known today about the health and safety impacts of locomotive cab work-

ing conditions than was known in 1986, when Article XVII was adopted. A description of de-

velopments regarding three key ergonomic issues that are relevant to a reformed Article XVII

process is contained in attachment B to this Submission. Reform is particularly appropriate at

this time because of an overworked FRA’s inability to keep up with the times.

The last significant improvement in locomotive cab conditions occurred in 2002, when

the agency promulgated locomotive sanitation standards. See 49 C.F.R. §§ 229.137–229.139

(BLETX 348–351). More recently, FRA’s Railroad Safety Advisory Committee Locomotive

Safety Standards Working Group was created in February of 2006 — with BLET as a participat-

ing stakeholder — to review Part 229 and recommend appropriate revisions. 24 For example, one Class I railroad insists on operating its locomotive long-hood forward, despite

the otherwise uniform industry standard of short-hood forward operations. This materially restricts an engineer’s range of vision ahead and to the left, as well as places the crew behind the exhaust stacks in-stead of in front often leading to increased exhaust fumes entering the cab during operation. An engineer working for another railroad who happens to inherit a lead locomotive from this railroad on a through run faces a completely unfamiliar operating environment. Similarly, because of the post-Staggers Act mega-mergers, our members are forced to work in cabs designed for completely different environments. We have received numerous complaints that non-air conditioned locomotives owned by a Canadian railroad, built with undersized windows for operation during Canadian winters, are being used in the tropical summertime climate in the Deep South, in the process endangering the health and safety of operating crews assigned to them.

30

It took five more years for FRA to publish a Notice of Proposed Rulemaking that would

revise its Part 229 locomotive safety standards. See 76 Fed. Reg. 2200–2238 (Jan. 12, 2011).

Unfortunately, the agency declined to act on Rail Labor’s proposals regarding climate control

and locomotive cab security. Instead, it only requested “comment and information … with re-

gard to maintaining a maximum locomotive cab temperature,” (id. at 2206–2207), and comment

regarding whether there should be a federal regulatory requirement that locomotive cabs must be

equipped with operating locks on their doors (id. at 2210).25 BLETX 353–354, 355.

It is beyond dispute that the locomotive cab workplace has undergone significant change

in recent years, and this evolution will continue. Therefore, Article XVII — now 25 years old —

must be updated so it can once again be fully relevant. The fact that FRA may be considering

environmental and ergonomic issues of concern to locomotive engineers is not an excuse to de-

lay. Federal rulemaking is a glacial process in the best of times, and is at a virtual standstill to-

day. Moreover, we reject the notion that it is appropriate for our members’ workplace health and

safety to be held hostage to political bickering among elected officials.

We also hasten to point out that — if the carriers counter that it is more appropriate for

the parties to take a back seat to FRA’s efforts — Section 103 of the Rail Safety Improvement

Act of 2008, 49 U.S.C. § 20156, (BLETX 357–359) has put the ball clearly in the parties’ hands.

It mandates that FRA publish a regulation requiring railroads to develop, submit for approval and

implement risk reduction programs (“RRPs”). Each RRP must be based on a FRA-approved risk

analysis, must be “comprehensive,” and must be designed “to improve safety by reducing the

number and rates of accidents, incidents, injuries, and fatalities … through … the mitigation of

25 The proposed rule, for the most part, merely incorporated a number of existing waivers from cur-

rent requirements for periodic brake system inspections/tests for locomotives equipped with certain types of computer-controlled braking systems, and added a new subpart governing locomotive electronics.

31

aspects that increase risks to railroad safety; and … the enhancement of aspects that decrease

risks to railroad safety.” 49 U.S.C. §§ 20156(c)–(d) (BLETX 358). Moreover, each covered rail-

road must “consult with, employ good faith and use its best efforts to reach agreement with, all

of its directly affected employees, including any non-profit employee labor organization

representing a class or craft of directly affected employees of the railroad carrier, on the contents

of the safety risk reduction program.” 49 U.S.C. § 20156(g)(1) (BLETX 359). Now is the time

to get it done.

For these reasons, we urge the Board to recommend four specific changes to Article

XVII, each of which would revitalize the rule and make it more effective. First, the National

Committee identified in Section 1.B should be reinstituted with its scope expanded to include

issues arising from operation of locomotives on foreign lines of road. Second, the locomotive

cab sanitation conditions should be amended to reflect the list of enumerated FRA-regulated

conditions, and locomotive cab security — including climate control, glazing and cab door lock-

ing mechanisms — should be added to the list of covered conditions. Third, the terms “unrea-

sonable delay to the train” and “unreasonable train delay,” as used in Section 2, should be

revised to read “unreasonable delay to the train in excess of thirty (30) minutes” and “unreasona-

ble train delay in excess of thirty (30) minutes,” respectively.

Finally, the Section 2 process should be revised so that Article XVII can be enforced in a

reasonable manner. Specifically: (i) a locomotive engineer who declines a non-complying lo-

comotive should not be required to use it in the absence of an agreement to mitigate the non-

complying condition, unless another railroad official not subordinate to the official who made the

initial determination orders that it be used; (ii) any other locomotive engineer to whom the non-

complying locomotive is assigned should be informed of any unresolved objections; and (iii) an

32

objecting engineer should be afforded to document an overruled objection for higher review.26

Adoption of these changes would assure that Article XVII, continues to be relevant as locomo-

tive cab working conditions evolve over time.

II. Conclusion

For the reasons set forth above, the Brotherhood of Locomotive Engineers and Trainmen

respectfully requests that this Honorable Board recommend the existing national agreements be

changed as follows:

1. The entry rate schedule and the two-tiered (pre-85/post-85) pay system be eliminated;

2. The meal allowance set forth in Article 8.A of System Agreement CSXT No. 1–023–07, as adjusted thereunder, be incorporated into the National Agreement, replacing Article II, Section 2 of the June 25, 1964 National Agreement, as amended, and related provisions;

3. The current $5.00 locomotive engineer certification allowance be immediately increased to $10.00 per trip or tour of duty and, thereafter, that all future general wage increases be applied to the increased allowance; and

4. Article XVII of the Award of Arbitration Board No. 458 be amended to: (1) reinstitute the National Committee identified in Section 1.B, and expand its scope to include issues arising from operation of locomotives on foreign lines of road; (2) amend the description of locomotive cab sanitation conditions to reflect all of FRA-regulated conditions and add locomotive cab security, including climate control, glazing and cab door locking mechan-isms, to the list of covered conditions; (3) specify that in the application of Section 2, a delay must exceed 30 minutes before it can be considered an “unreasonable” delay; and (4) establish a more reasonable enforcement process in the application of Section 2.

26 This proposal is modeled on FRA’s “Good Faith Challenge” process set forth in 49 C.F.R.

§ 218.97, which applies to disputes over FRA requirements governing the handling of equipment, switch-es, and fixed derails and associated railroad operating rules. See BLETX 361–363.

A-1

Attachment A History of FRA’s Locomotive Engineer Certification Regulation

and the BLET Locomotive Engineer Certification Allowance

1. Regulatory Provisions

The requirement that in order to work in the craft, locomotive engineers be federally cer-

tified became effective with FRA’s Locomotive Engineer Certification regulation became effec-

tive on September 19, 1991. 56 Fed. Reg. 28228 (Jun. 19, 1991) (BLETX 232). To be certified,

an engineer has to meet stringent hearing and visual acuity standards, and successfully complete

a lengthy and comprehensive training program, which includes at least several weeks of exten-

sive classroom training and numerous months of on-the-job practice in train handling supervised

by a railroad-designated instructor engineer, and which culminates with a pass/fail skill perfor-

mance examination. Once certified, each engineer is subject to triennial recertification that in-

cludes: additional hearing and vision testing; an examination of the engineer’s prior safety

conduct as a railroad employee, and as a motor vehicle operator; operating rules compliance da-

ta; data on substance abuse disorders and alcohol drug rules compliance; and additional know-

ledge and skill performance testing. See 49 C.F.R. Part 240, Subpart B.

The federal rule provides that “railroads will have limited authority to deny or revoke a

person’s certificate, and FRA will have responsibility for resolution of disputes arising from de-

cisions to deny or rescind certificates.” Id. at 28229 (BLETX 233). Moreover, FRA stated an

intention to “exercise limited control in the daily administration of each railroad’s program,” be-

cause “FRA bears responsibility for the manner in which railroads exercise th[eir] discretion,

since the performance of the railroads under this rule will determine whether its safety purposes

are fulfilled.” Id. at 28229–28230 (BLETX 233–234).

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Thus, the Preamble to the 1991 Final Rule stated that “[g]iven their accident-causing po-

tential, FRA has selected … five kinds of misconduct as requiring attention under this certifica-

tion program,” which were set forth in Section 240.117(e), and have become known as “cardinal

sins.” Id. at 28235 (BLETX 235). However, systematic abuse of the revocation process by sev-

eral Class I railroads forced FRA to significantly amend the five operational cardinal sins in

1993, before Part 240 had been in effect for even two years, to provide greater clarity and speci-

ficity as to what constituted a revocable offense. See 58 Fed. Reg. 18982–19004 (Apr. 9, 1993).

The trigger for revocation of a locomotive engineer’s certification is as follows:

A railroad shall only consider violations of its operating rules and practices that involve:

(1) Failure to control a locomotive or train in accordance with a signal indication, ex-cluding a hand or a radio signal indication or a switch, that requires a complete stop be-fore passing it;

(2) Failure to adhere to limitations concerning train speed when the speed at which the train was operated exceeds the maximum authorized limit by at least 10 miles per hour. Where restricted speed is in effect, railroads shall consider only those violations of the conditional clause of restricted speed rules (i.e., the clause that requires stopping within one half of the locomotive engineer’s range of vision), or the operational equiva-lent thereof, which cause reportable accidents or incidents under part 225 of this chapter, except for accidents and incidents that are classified as “covered data” under § 225.5 of this chapter (i.e., employee injury/illness cases reportable exclusively because a physician or other licensed health care professional either made a one-time topical application of a prescription-strength medication to the employee’s injury or made a written recommen-dation that the employee: Take one or more days away from work when the employee in-stead reports to work (or would have reported had he or she been scheduled) and takes no days away from work in connection with the injury or illness; work restricted duty for one or more days when the employee instead works unrestricted (or would have worked unrestricted had he or she been scheduled) and takes no other days of restricted work ac-tivity in connection with the injury or illness; or take over-the-counter medication at a do-sage equal to or greater than the minimum prescription strength, whether or not the employee actually takes the medication, as instances of failure to adhere to this section);

(3) Failure to adhere to procedures for the safe use of train or engine brakes when the procedures are required for compliance with the Class I, Class IA, Class II, Class III, or transfer train brake test provisions of 49 CFR part 232 or when the procedures are re-quired for compliance with the Class I, Class IA, Class II, or running brake test provi-sions of 49 CFR part 238;

(4) Occupying main track or a segment of main track without proper authority or permission;

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(5) Failure to comply with prohibitions against tampering with locomotive mounted safety devices, or knowingly operating or permitting to be operated a train with an unau-thorized disabled safety device in the controlling locomotive …;

(6) Incidents of noncompliance with § 219.101 of this chapter …[.]

49 C.F.R. § 240.117(e) (BLETX 81–82).

Two amendments FRA made to the initial rule are important to understanding the risk of

loss of position and income when certification is revoked. First, the rule was amended in 19991

to address FRA’s concern “that operational monitoring tests are used by some supervisors to en-

trap engineers in tests that are unfair,” and that some tests were conducted in a manner that

“made it appear that the true purpose was not to monitor compliance but to make it inappro-

priately difficult for an engineer to pass.” 63 Fed. Reg. 50636 (Sep. 22, 1998) (BLETX 240).

FRA specifically cited the notorious “bucket test,” in which “supervisors have been able to get

engineers decertified by hiding a fusee under a bucket and only revealing the fusee to the engi-

neer at a point where it is impossible for the engineer to stop the train,” which FRA found to be

“an ‘improperly’ conducted operational test … [and] an improper reason for decertification.” Id.

at 50641 (BLETX 241). In addition, FRA amended Part 240 to provide locomotive engineers

with an “intervening cause” defense, and railroads gained express discretion to not revoke in the

case of a de minimis event, although the rule lacks a requirement that the railroad consider

whether any particular event meets that threshold. 64 Fed. Reg. 60994 (BLETX 238).

Second, in late 2009, FRA outlawed an insidious railroad practice of “reclassifying the

certification of any type of certified engineer to a more restrictive class of certificate or to a stu-

dent engineer certificate during the period in which the certification is otherwise valid.” 74 Fed.

Reg. 68174 (Dec. 23, 2009) (BLETX 243). FRA also added language to the rule to underscore

— yet again — that a railroad “may revoke an engineer’s certificate only for that conduct spe- 1 See 64 Fed. Reg. 60966–60997 (Nov. 8, 1999).

A-4

cifically identified in” the list of cardinal sins. Id. at 68175 (emphasis added) (BLETX 244).

Other amendments required greater railroad specificity in certification program documents deal-

ing with: (1) what action a railroad “will take … in the event that a person fails a skills perfor-

mance test,” (2) what action a railroad “will take in the event they find deficiencies with an

engineer’s performance during an operational monitoring observation or unannounced com-

pliance test,” and (3) “the scoring system [a railroad uses] to determine whether a person passes

or fails a skills test or operational monitoring ride.” Id. at 68175, 68176 (BLETX 244, 245).

In addition to revocation for a cardinal sin violation that occurs while a locomotive engi-

neer is operating a train, Part 240 requires regular monitoring of certified locomotive engineers.

See 49 C.F.R. § 240.129 (BLETX 87–88). Each locomotive engineer is subject to an annual

“compliance test” to determine

Engineer compliance with provisions of the railroad’s operating rules that require re-sponse to signals that display less than a “clear” aspect …; with provisions of the rail-road’s operating rules, timetable or other mandatory directives that require affirmative response by the locomotive engineer to less favorable conditions than that which existed prior to initiation of the test; or … with provisions of the railroad’s operating rules, timet-able or other mandatory directives violation of which by engineers were cited by the rail-road as the cause of train accidents or train incidents in accident reports filed … in the preceding calendar year.

49 C.F.R. §§ 240.129(e)(1)–(e)(2). Administration of these tests must be “distributed throughout

whatever portion of a 24-hour day that the railroad conducts its operations,” and “administered

without prior notice to the engineer being tested.” 49 C.F.R. §§ 240.129(e)(3)–(e)(4). And, in

addition to requiring compliance testing, Section 240.129

also requires an annual observation of each certified engineer by a supervisor of locomo-tive engineers, not as part of a test, but to provide for observation performance in rou-tine operations, rather than merely in test environments. … Railroads will be free to select the duration of the monitoring effort devoted to each individual engineer. Rai-lroads also will have the option of using some or all of the following techniques: on-board observations, simulator observations, and evaluation of train operation event re-corder data.

56 Fed. Reg. at 28247 (emphasis added) (BLETX 236).

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In fulfillment of this operational monitoring requirement, contemporary technology per-

mits continuous, real-time monitoring of a locomotive engineer’s activities. Locomotive event

recorders are automatically downloaded when they pass wayside equipment detection devices.

The downloaded data then are sent via microwave transmission to a central facility, where they

are analyzed by computers programmed to detect possible violations of “cardinal sins,” particu-

larly speeding and authority violations. Many systems are designed to immediately provide rail-

road supervisors with electronic mail or text messages summarizing suspected violations as they

are detected; indeed, some of them are so sensitive that an alert is sent when a locomotive engi-

neer makes a brake application that exceeds a predetermined and arbitrary threshold, a situation

that does not trigger certification consequences. It is far from overstatement to say that Big

Brother occupies the lead locomotive on the vast majority of freight trains operating on Class I

railroads today. Because of the way these systems have evolved, certification consequences fre-

quently flow from events that do not rise to the level of an incident that is even discoverable, ab-

sent this technology. In fact, the carriers have used Part 240 with a bloodlust that forced FRA to

make major revisions to the rule several times, most recently within the past year, because of the

railroads’ abuse of discretion provided therein.

2. The Relationship with Carrier Disciplinary Procedures

The Part 240 revocation process operates parallel to, but independently of, the railroad’s

discipline process. Revocation periods range from thirty days to three years for operational vi-

olations, depending upon the individual engineer’s record over the prior 36 months and, for alco-

hol and drug violations, from the time needed for primary treatment for an active substance

abuse disorder to five years, again depending upon the nature of the violation and the individual

engineer’s record. In order for a locomotive engineer involved in an incident that triggers both

A-6

disciplinary and certification consequences to be vindicated — including the ability to collect

back pay for the entire period — he/she must overturn the carrier’s actions in two forums: in a

discipline appeal or a Railway Labor Act Section 3 arbitration proceeding; and in FRA’s

Part 240 appellate process.

That process is comprised of three steps: a review by FRA’s Locomotive Engineer Re-

view Board (“LERB”), a de novo proceeding before a FRA Administrative Hearing Officer

(“AHO”) and, ultimately, an appeal to the Administrator. It is a slow and cumbersome process.

According to published FRA Enforcement Reports, the length of time for the LERB to decide a

petition for review averaged 328 days from filing in FY 2009 and 318 days in FY 2010. AHO

decisions took an average of 18 months in FY 2009 and 12 months in FY 2010. And the average

length of time, measured from the close of the record, for the Administrator to decide an appeal

was 280 days in FY 2009 and 299 days in FY 2010. See BLETX 246–250.

Data collected by the BLET indicates that between 1992 and 2010 there have been nearly

1,500 petitions for review filed with the LERB, almost 200 administrative hearing procedures,

and over two dozen appeals to the Administrator; there also have been numerous lawsuits chal-

lenging final agency actions by FRA. The actual number of revocations is in the possession of

the carriers, and FRA does not require that railroads report that number to the agency. However,

our experience is that only a small fraction of revocations — we estimate 10% — are pursued via

FRA’s appellate process, which translates to roughly 15,000 revocations during the 19-year pe-

riod.2 One major reason that only a small fraction of revocations are appealed is the fact that —

when the revocation period exceeds the disciplinary suspension — a significant number of loco-

motive engineers are able to exercise their train service seniority as a conductor for the balance 2 In the unlikely event the carriers contest our estimate as being significantly erroneous and pro-

duce their data, we will endeavor to review the estimate in an effort to resolve any alleged discrepancy.

A-7

of the revocation period. As discussed in our Opening Statement, this safe harbor will disappear

next year, when FRA’s conductor certification regulation (49 C.F.R. Part 242) becomes effec-

tive.

3. The Certification Allowance

Not surprisingly, the Organization requested additional compensation — in the form of a

certification allowance — in its first Section 6 Notice following promulgation of Part 240 to ad-

dress this new and draconian federal accountability scheme. Predictably, the carriers declined to

enter into a voluntary agreement to provide a certification allowance, and would agree only to

refer the issue to arbitration. See May 31, 1996 National “Core” Agreement at Side Letter No. 11

(BLEXT 251–253). By the time that proceeding opened, the justification for a certification al-

lowance had already been firmly established.

PEB 226 was the first to address the subject of locomotive engineer certification. In re-

sponse to a request that a $15.00 certification allowance be recommended, the Board stated as

follows:

The Board concludes that a certification allowance is warranted by the more stringent performance standards and higher responsibilities which now obtain under the FRA certi-fication program. Some provision for certification allowance is now included in a num-ber of agreements throughout the country. However, the amount of the allowance and the particular conditions to which it is applicable should be resolved through bargaining by the parties, to be effective January 1, 1996.

Report of PEB 226 at p. 14 (MNCR and BLE, et al., Apr. 21, 1995) (BLETX 254–255).

When the parties to that dispute failed to reach a voluntary settlement, PEB 227 was em-

panelled to consider each party’s proposed settlement, submitted pursuant to Railway Labor Act

Section 9a, and select “the most reasonable offer.” The Carrier proposed a certification allow-

ance of $500 per year for engineers who maintained certification and worked 120 days in the ca-

lendar year, while the Organization proposed an allowance of $12.00 per day; the Board chose

A-8

the Organization’s proposal. Report of PEB 227 at pp. 13, 22, 26 (MNCR and BLE, et al., Sep.

29, 1995) (BLETX 256–259).

Next, PEB 231 commented at length on the subject:

The Board is persuaded by the Organization’s argument that enactment of the Rail Safety Improvement Act of 1988 (PL 100-342, June 28, 1988) (RSIA) had a dramatic impact upon the conditions of employment for engineers. RSIA essentially made individuals ci-villy responsible for violations of Federal Railroad Administration (FRA) regulations or safety statutes. It specifically provided for fines of up to $20,000 for willful violations of regulations. It empowered the FRA to remove someone from safety sensitive service if it had a problem with that person’s conduct. It directed the FRA to develop a program of licensing or certification for locomotive engineers.

It is apparent to the Board that it has also been determined on other properties that RSIA had a dramatic impact upon the conditions of employment for engineers. More specifi-cally, the record establishes that certification allowances range from $15 per day on both the Southern Pacific and Grand Trunk railroads to $4 per day on a short line railway in the Midwest. In the more immediate geographic area, New Jersey Transit has agreed to a $5 per day allowance, and both the Long Island Rail Road and Metro-North Commuter Railroad (sic) have a $10 per day certification allowance.

The Board is sensitive to SEPTA’s concern that the granting of a certification allowance to engineers will result in similar demands from other employees. It is convinced, how-ever, that the certification of engineers is distinguishable from the licensing of all other employees on the property. No other group of SEPTA employees are so affected by the stringent performance standards, sanctions and higher responsibilities which are now re-quired under the FRA certification program. Moreover, the record reveals that while it normally takes eight to nine months for an individual to become a qualified engineer, it normally takes an individual about one month to become licensed as a bus operator. In addition, the penalty for a shop craft employee not becoming qualified for the various items of work mentioned by SEPTA is that the employee would be disqualified from working on jobs which specifically require a license. Unlike engineers, shop craft em-ployees are not subject to a suspension from service or a loss of employment as a conse-quence of a failure to obtain or maintain a license.

In short, engineer certification is unique. Further, it is not unusual for an Agreement on this property to address a concern unique to a particular class of employees.

Report of PEB 231 at p. 10 (SEPTA and BLE, Aug. 16, 1996) (BLETX 260–261).

On March 12, 1997, the dispute between the NCCC and the BLET was resolved in the

BLET’s favor by Board of Arbitration No. 564. See BLETX 262–268. The Board found that the

1988 RSIA “imposed additional responsibility on locomotive engineers” and that “for each ca-

lendar day worked certified engineers in yard and/or road service shall receive an allowance of

$5.00.” Award of Arbitration Board No. 564 at p. 6. This is the amount in place today.

B-1

Attachment B Evolution of Locomotive Cab Standards

Locomotive cab working conditions are subject to both federal standards and collective-

ly-bargained rules. Indeed, one of the earliest rail safety laws was the Locomotive Inspection

Act, 36 Stat. 913 (Feb. 17, 1911). This Act made it unlawful for railroads to use locomotives

and appurtenances unless they were safe and properly tested and inspected, and authorized the

Secretary of Transportation to prescribe rules, regulations, and forms for making reports as ne-

cessary to implement and effectuate purposes of the Act. See 49 U.S.C. ch. 207. BLET’s nation-

al collective bargaining agreement has addressed the health and safety impacts of locomotive cab

working conditions since 1986. This Attachment highlights developments regarding three key

ergonomic issues, which are among a number of issues that are relevant to a reformed Ar-

ticle XVII process.

It is well known that prolonged exposure to occupational vibration generates discomfort

and back pain in a variety of settings, including the operating compartments of transportation

vehicles.1 In the last 15 years, several studies have been made of locomotive seat vibration.2

The FRA partnered with the Air Force Research Laboratory, the Volpe National Transportation

Systems Center and others, to evaluate the transmissibility characteristics of suspension seats for

use in the cabs of passenger and freight locomotives, as a means of targeting potentially harmful

vibration exposure. This study concluded that “large multi-axis motions [transmitted via the lo-

comotive seat] may be a major contributor to discomfort during the operation of locomotives un-

1 See, e.g., International Standards Organization, 1997. Mechanical vibration and shock – Evalua-

tion of human exposure to whole-body vibration – Part 1: General requirements. ISO 2631-1:1997(E).

2 Johanning, E., Fischer, S., Christ, E., Göres, B., and Landsbergis, P., 2002. Whole-body vibration exposure study in U.S. railroad locomotives – An ergonomic risk assessment. AIHA Journal, Vol. 63, pp. 439–446.

B-2

der … more severe conditions reflected by the signals used in this study,” and “recommended

that potential factors that may contribute to the large locomotive motions be investigated and mi-

tigation strategies applied to reduce the transmission of these motions to the occupant” of a lo-

comotive cab seat.3

During the same period, with the support of FRA, a study was undertaken of the effects

of hot and cold temperatures on job performance.4 The results of this study

suggest that hot and cold temperatures negatively impact performance on a wide range of cognitive-related tasks. More specifically, hot temperatures of 90°F (32.22°C) Web Bulb Globe Temperature Index or above and cold temperatures of 50°F (10°C) or less resulted in the greatest decrement in performance in comparison to neutral temperature conditions (14.88% decrement and 13.91% decrement, respectively). Furthermore, the duration of exposure to the experimental temperature, the duration of exposure to the experimental temperature prior to the task onset, the type of task and the duration of the task had diffe-rential effects on performance. The current results indicate that hot and cold temperature exposure have a negative impact on performance and that other variables (e.g., length of exposure to the temperature or task duration) may modify this relationship.

Effects of hot and cold temperature exposure at 682 (BLETX 310).

These results correlate with those from a FRA-sponsored risk reduction program named

Correcting At-risk Behaviors, or CAB, which was implemented in September 2005 on Union

Pacific Railroad’s San Antonio Service Unit. The CAB program consisted of peer observations

of road freight crews operating in Cab Red Zones, in which the train was governed by restrictive

signals, and/or in other situations that demanded a crew’s full attention. The CAB data showed a

significant increase in at-risk behaviors when the locomotive cab was not equipped with a work-

ing air conditioner.

3 Smith, S., Smith, J., Newman, R., 2006. Vibration Transmissibility Characteristics of Occupied Suspension Seats. AFRL-HE-WP-TR-2006-0133 at pp. xiii–xiv. See BLETX 307.

4 See Pilcher, J., Nadler, E., Busch, 2002. Effects of hot and cold temperature exposure on perfor-mance: a meta-analytic review. Ergonomics, Vol. 45, No. 10, pp. 682–698. See BLETX 310.

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This issue involves more than mere crew comfort and the potential for heat-induced hu-

man error. In June 2010 — some 109 years after Willis Carrier invented the modern air condi-

tioning system and 72 years after Packard first installed an air conditioner in an automobile — a

CSX conductor was murdered during a locomotive cab invasion and robbery, during which the

engineer, a member of the BLET, was shot and wounded. In hot weather, crews working in lo-

comotive cabs without functioning air conditioning are forced to open doors and windows to re-

lease captured heat from the operating environment. When a crew chooses physical comfort in

this way, its security and the security of the train is placed at risk. There currently is no federal

requirement that locomotive cabs be secure from invasion by unauthorized persons. This murder

occurred on a locomotive that was, to the best of our knowledge, compliant with every FRA reg-

ulation, as well as Article XVII.

Perhaps the most comprehensive study of the locomotive cab working environment was a

joint FRA/Volpe effort undertaken in the latter half of the 1990s.5 The study included cab envi-

ronment (heating, ventilation, air conditioning, noise, toilet facility, vibration), cab layout (gen-

eral design, access, visibility, seating), and workstation design (controls, electromechanical

displays, auditory devices, general principles, automation, electronic /computer-generated) dis-

plays, computer input devices). Presciently, the study also looked at underdeveloped or futuristic

subjects such as vigilance monitoring and Positive Train Control (“PTC”).

With respect to locomotive cab technology that is in its earliest stages of deployment, the

report expressed

concerns for incorporating the new information technology into the locomotive revolve around the interface that the locomotive engineer will interact with to receive information and control train movements. In the past, this interface consisted of electromechanical

5 Multer, J., Rudich, R., Yearwood, K, 1998. Human Factors Guidelines for Locomotive Cabs.

DOT/FRA/ORD-98/03. See BLETX 327.

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dials, gauges and levers, and control knobs found in conventional control stands. This in-terface is being replaced with workstations that consist of computer displays and controls (i.e., CRT displays and keyboards).

Human Factors Guidelines at 4 (BLEXT 332). In addressing this concern, the report recom-

mended that

[t]o promote safety and productivity, user-centered designs are needed to insure that the locomotive engineer can accomplish the tasks that are a part of his or her job. User-centered design has the potential to reduce costs while increasing safety and productivity.

Id. at 5 (BLEXT 333). These objective findings provide compelling scientific and medical justi-

fication for amending Article XVII to address 21st Century concerns.

before presidential emergency board no. 243 american … · 2011-11-07 · before presidential...

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