Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26942
THIRD DIVISION Docket No. CL-26334
88-3-85-3-53
Third Division consisted of the regular members and in
addition Referee Gil Vernon when award was rendered.
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Bessemer and Lake Erie Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood (GL-9977)
that:
1. Carrier violated the effective Clerks' Agreement when on or about
January 17, 1983, and thereafter, the Carrier removed work in connection with
the handling of interchange reports from the scope of the effective Agreement
and required and/or permitted outsiders to perform such work;
2. Carrier shall now compensate the senior available furloughed
employe eight (8) hours' pay at the straight time rate of a Car Control Clerks
position for January 17, 1983, and for each and every day thereafter that a
like violation occurs."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On February 25, 1983, the Organization filed a claim protesting the
Carrier entering into a program known as "Electronic Interchange" with the
American Association of Railroads (AAR). They also claim that effective
January 1, 1983, the Carrier began utilizing the "paperless exchanges." As a
result, they assert the Carrier removed work from the position of "Car Control
Clerk" which was then eliminated January 14, 1983.
Form 1 Award No. 26942
Page 2 Docket No. CL-26334
88-3-85-3-53
The Organization also in the February 25, 1983 claim outlined the
work they believed to have been "eliminated" by the paperless interchanges.
The eliminated work was as follows: (1) putting the interchanges in order by
jct. point, (2) separating the inbound and outboard, (3) keeping a log of the
interchanges, (4) making manual corrections and other duties concerning interchanges. Based on these
bargaining unit and subsequent performance by the AAR was a violation of the
Scope Rule.
The Parties further clarified, to some extent, the facts with respect
to the duties of the Car Control Clerk prior to and after the advent of the
AAR program. In 1977, the Carrier became a participant in the AAR's Interchange Continuity System pr
participating Carriers to furnish inbound and outboard interchange information
mechanically to the AAR central computer. This inputting was done by bargaining unit employees. Howe
program did not change the manner in which the Carrier made interchanges which
was largely manual and involve large amount of paper, manual verification,
filing, sorting, etc.
The old interchange process involved a sending railroad giving the
receiving railroad a list of cars being interchanged. Also, the cars that
were received were listed on the basis of "check" by the Clerk and then
inputted into the computer. The lists were compared. If there were discrepancies, correction were ma
the interchange report furnished by the receiving carrier, and the printout of
cars delivered by the sending carrier, tracers were prepared and forwarded to
the receiving carrier and vice versa). Clerical employees in Carrier's Car
Accounting Department titled Car Control Clerks would research discrepancies
and issue corrections as necessary. Also involved as previously noted there
was manual sorting, filing and logging of the interchange activities.
Commencing January 1, 1982, the N&W Railroad with whom this Carrier
interchanges decided to discontinue the exchange of paper records associated
with the interchanging of cars between it and this Carrier, relying instead on
the ICS. The ICS computer, since all interchange information was inputted
into the System, had the capability to automatically compare, match, sort and
relay interchange information. Reports were still produced on a magnetic tape
record which is converted to microfiche, to be viewed on a screen rather than
the former paper record. The work of sorting, filing and logging of paper
interchange records, was eliminated and replaced by the magnetic tape record
and microfiche. Thus, the label "paper interchange" was given to the new
process.
However, under the new system, the Clerk not only still inputs
information into the computer, but still handles any discrepancies that may
develop through the standard claims procedures. At that time, if a hard copy
(paper) is needed to substantiate an unresolved discrepancy, a copy of the
applicable record is obtained by a clerical employee. It should also be noted
on January 1, 1983, the decision was made to interchange on a "paperless
basis" through the ICS with all other participating carriers.
Form 1 Award No. 26942
Page 3 Docket
No.
CL-26334
88-3-85-3-53
In response to the claim of February 25, 1983, the Carrier contended
that the work in question was merely eliminated due to
mechanization and
that
the Scope Rule wasn't violated. Additionally, they took the position that the
claim was untimely since the "paperless exchange" with the
N&W
began January
1, 1982, and since the Carrier's initial participation began in the ICS in
1977. They also took the position that less than 20% of the time on the car
control position was dedicated to interchange work and that the position was
not eliminated because of the ICS program but because of a substantial decline
in business. Last, they noted that the remaining car record work was being
performed by other Clerks.
In their Submissions before the Board, the
Organization contended
the
claim is timely. First, they don't believe that the Carrier's initial participation in the ICS in 19
work was removed at this time and only information was being exchanged. They
argue further in this regard that Carrier's argument is not valid in that a
connection between two computers is not necessarily a violation of the Agreement. Moreover, they arg
instant claim
is a continuing claim and Carrier's argument concerning the time limits should be dismissed.
On the merits, the Organization essentially contends that Rule 1 as
quoted below prohibits removal of the disputed work. Rule 1 - Scope - reads,
in pertinent part, as follows:
"(a). These rules shall constitute an agreement
between the Bessemer and Lake Erie Railroad
Company and the Brotherhood of Railway, Airline
and Steamship Clerks, Freight Handlers, Express
and Station Employees, and shall govern the
hours of service and working conditions of the
employees and positions of the class or craft of
clerical, office, agency, telegraphic, station
and storehouse employees, of the Bessemer and
Lake Erie Railroad Company, except as otherwise
provided.
(b). Employees affected are as follows:
(1). Clerks, being those employees who
regularly devote not less than four (4)
hours per day to the writing and calculating incident to keeping records and
accounts, writing and transcribing
letters, bills, reports, statements, and
similar work, telegraphic work, and to the
operation of office or station mechanical
equipment and duplicating machines and
devices in connection with such duties;
agents; levermen; telephone switchboard
operators; section stockmen; stores
checkers; freight house and transfer
platform foremen; freight checkers; car
carders and weighmasters.
Form 1 Award No. 26942
Page 4 Docket No. CL-26334
88-3-85-3-53
(2). Station baggagemen, train and engine
crew callers, stores truck operators,
stores helpers, Stores Department locomotive crane engineer, office boys, messengers, operators of o
equipment, appliances and devices not
requiring clerical ability, and those
operating machines for perforating,
addressing envelopes, numbering claims, or
other papers, and those engaged in work of
a similar character.
(3). Laborers and watchmen, in and about
stations and storehouses, shop watchmen
(without police authority), janitors and
freight house and transfer platform truckers.
(c) Clerical work occurring within a spread
of eight (8) or nine (9) hours shall not be assigned to more than one position not classified
as clerk for the purpose of keeping the time
devoted to such work by any one employee below
four (4) hours per day.
(d). Positions or work coming within the scope
of this agreement belong to the employees
covered thereby and nothing in this agreement
shall be construed to permit the removal of
positions or work from the application of these
rules, except by agreement between the parties
signatory hereto; except that management,
appointive or excepted positions, or other positions not covered by this agreement may be assigned t
their regular duties.
(e). When a mechanical device is used to perform clerical work assigned to positions covered
by the scope of this agreement, the operation of
such devices for the performance of that work
will be assigned to positions covered by this
agreement.
(Underscoring added)
Form 1 Award
No. 26942
Page 5 Docket
No. CL-26334
88-3-85-3-53
They also argue the facts in this dispute are identical to those found in
Award
No. 16 of
Public Law Board
No. 2189
and should control on the basis of
stare decisis. They emphasize that the work has not been eliminated merely by
operation of a computer as argued by the Carrier. It is important to note in
their opinion that the computer performing this work is located in Washington,
D.C. and is operated by employees of the AAR, not by employees of the Carrier
to whom the work is reserved by Agreement.
The Carrier, in their Submission, argues, as they did on the property, that the claim was not fi
opinion, tolled at least as early as January,
1982,
when the Carrier began its
paperless interchange with the
N&W.
Thus, this is not a continuing claim
since it is based on a specific act.
Regarding the merits they contend that the claim is not valid because
the Carrier has the inherent right to take advantage of efficiencies resulting
from mechanization and improved technology. It is their position that they
have the right to eliminate work where technologies and other efficiencies
allow it. They contend there was no transfer of work and that no position was
abolished. Instead, they argue that there was simply an elimination of work
through a labor saving device.
In addition, the Carrier argues that the claim is without basis since
the Organization has furnished no evidence that the work in dispute is being
performed by persons outside the Scope
of
the Agreement. They note that the
Carrier still produces and utilizes interchange reports, except that they are
now being produced on a magnetic tape record, which is converted to microfiche, rather than paper. T
the Organization's accusation that the Carrier transferred work in connection
with the handling of interchange reports from the Scope of the Agreement to
outsiders to perform. The only change that has been made is in the format of
the interchange report which now is produced on microfiche instead of paper,
thereby eliminating the manual sorting, filing and logging of paper interchange records.
Last, the Carrier argues that even if this Board were to erroneously
hold that the Agreement was violated, the claim is grossly excessive and without foundation because:
(8)
hours per day to perform. And, (B) there is no provision in the working
Agreement for penalty payments, and any such payments would result in a windfall to the Claimants. I
note that the position of Car Control Clerk was eliminated because of a
decline in business not due to the elimination of the work and even so the
aggregate amount of interchange work was limited to
20%
of the time. Even so
some of the interchange work remains and is, in fact, performed by other
Clerks.
The first issue to be addressed is the matter of timeliness. A
strong argument can be made that this is a continuing claim situation. Even
if it was not, the fact that the "paperless" interchange commenced with the
N&W
on January 1,
1982 is
not a bar against the instant claim. It is clear in
Form 1 Award No. 26942
Page 6 Docket No. CL-26334
88-3-85-3-53
this record that the Carrier decided on January 1, 1983, to extend the ICS
system to all other participating roads. This decision would validly be
subject to claims within 60 days of that date. Thus, the issues presented in
this claim must be addressed on their merits since it was filed within the
relevant time period.
Regarding the merits, the Carrier argues, appropriately, that it has
the right to eliminate work and the right to take advantage of new technologies used to eliminate th
such mechanization must be exercised in concert with their commitments under
the relevant Labor Agreement.
There is nothing in the instant Collective Bargaining Agreement to,
per se, prevent Management from utilizing mechanization/computerization to
eliminate manual listing, comparing, confirmation sorting, etc. of interchange
information through the use of a computer or computers. In fact, Rule 1(E)
implies they have this right. However, the Carrier also has an unequivocal
obligation under the language of Rule 1(e) to have such a "mechanical device"
operated by employees covered by the Agreement. In short, they can eliminate
work, but if the work which remains is covered by the Scope Rule--and there is
no dispute in this record that is not--and the work is being performed by
mechanical means the Carrier is obligated to have such a device operated by
positions covered by the Agreement.
In essence, the work of car interchange has not been eliminated. It
is still being performed, but by mechanical means--a computer operated by
employees of the AAR. Significantly, there is no evidence that the ICS is, in
reality, essence or practically speaking a wholly independent automated system
unsupported by human manipulating. Under 1(e) the Carrier is obligated when
automating to use its employees not the employees of other employers to operate the labor saving dev
must be authorized by Rule 1(d). Since they were not, both Rule 1(d) and 1(e)
were violated.
The remaining question relates to damages. There can be no dispute,
based on this record, that no position was eliminated as a result of the
implementation of the ICS. The Carrier's assertion that the primary reason
for the elimination of the position was a decline in business has remained
unrebutted throughout the course of this proceeding. Moreover, their assertion was unchallenged that
20% of the Car Control Clerk position's work.
Thus, the loss of work opportunity couldn't amount to more than 1.6
hours (20% of 8 hours) on a daily basis. Additionally, it must be recognized
that (1) there was some reduction in the amount of work because of the ICS
system regardless of who was operating it and (2) that some work remained
under the Agreement.
Form 1 Award No. 26942
Page 7 Docket No. CL-26334
88-3-85-3-53
Accordingly, a reasonable approximation of the lost work opportunity
due to the improper assignment of work is one hour for each day that interchange activity occurred f
penalty and relates to the finite and identifiable loss of work opportunity
being performed outside the Scope of the Agreement. If such remedial damages
are not effected the prohibition set forth in Rule 1(d) and (e) is meaningless. It is noted that suc
Award 52 of PLB 1812 and Award No. 11 of PLB 3051 under very similar circumstances.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
~ze_4',4
Nancy J.~ y. - Executive Secretary
Dated at Chicago, Illinois, this 30th day of March 1988.