Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27567
THIRD DIVISION Docket No. CL-27235
88-3-86-3-325
The Third Division consisted of the regular members and in
addition Referee John E. Cloney when award was rendered.
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Bessemer 6 Lake Erie Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10102) that:
1. Carrier violated and continues to violate the effective Clerks'
Agreement when, on and after January 1, 1985, it required and/or permitted employes not covered by s
covered thereby;
2. Carrier shall now compensate the senior available unassigned employe on the Transportation
straight time rate of a Butler Yard Clerk for January 1, 1985, 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.
In its February 3, 1985, Claim the Organization alleged:
"The advance coal report that arrives in the CTD office for the clerk to the CTD to use in pr
morning reports for distribution in the Race Street
offices, previously was sent by clerical employees,
who are members of this Organization, of the Bessemer
and Lake Erie Railroad Co. from Butler yard office,
Butler, Pa. This report covers the incoming coal from
the Chessie and P 6 S Railroad systems daily.
Form 1 Award No. 27567
Page 2 Docket No. CL-27235
88-3-86-3-325
This report is now being prepared by Car Service in
Monroeville, Pa. and being transmitted by officers of
the . . . Railroad Co. who are not members of this
Organization. Though the information is still being
received by the clerk to the CTD Greenville, Pa., the
messages are now being prepared by officers of this
Carrier."
Carrier responded on February 8, 1985, that:
"The advance coal report which was for a period of 16
months complied and transmitted from Butler Yard to
clerk in Chief Train Dispatchers office was transferred to the Director Equipment Utilization's offi
effective January 1, 1985, which is permitted under
current working agreements with BRAG "
After conference and additional exchange of correspondence Carrier
wrote the General Chairman on May 1, 1986, contending:
"Prior to May 1982, the Department of Equipment Utilization supervisors gathered and prepared th
with the Butler coal report, after which they would instruct the clerical employee in their office t
the message to other offices through the C&T control system.
From May 1982 to August 1982, Car Control supervisors on
Saturdays and Sundays, gathered and prepared the coal report data, as well as sent out the related m
the C&T control system while D.E.U. personnel continued to
perform the duties Monday thru Friday. In August 1982, the
D.E.U. office was transferred to Monroeville. At that time
the B&LE Car Control Department supervisors remaining in
Greenville, assumed responsibility for this report seven
days a week, i.e., the gathering and preparation of coal report data, as well as sending out related
the CST control system. In August 1983, the B&LE Car Control
supervisors were moved to Monroeville and consolidated with
the D.E.U. At this time the responsibility for the Butler
coal report was assigned to the Butler yardmaster who gathered and prepared the data, while the Butl
out the related message per instructions from the yardmaster.
The above facts make it clear that the responsibility for
and the preparation of the former Butler coal report had always been that of management. Further, th
related messages, which consumes a minimal amount of time (2
minutes or less a day) has not been the exclusive work of
BRAC represented employees, but rather it has been performed
Form 1 Award No. 27567
Page 3 Docket No. CL-27235
88-3-86-3-325
over the years by both management and clerical employees;
thereby falling under the concept of shared work. In fact,
the next to the last paragraph of the Scope Rule supports the
Carrier's position that the Director Equipment Utilization's
force can transmit messages such as described above."
Rule 1 of the Agreement provides in part:
SCOPE
"Rule 1(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 Er
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; le
masters.
(2) Station baggagemen, train and engine crew callers,
stores truck operators, stores helpers, Stores Department locomotive crane engineer, office boys, me
and those operating machines for perforating, addressing envelopes, numbering claims, or other paper
those engaged in work of a similar character.
(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,
Form 1 Award No. 27567
Page 4 Docket No. CL-27235
88-3-86-3-325
or other positions not covered by this agreement
may be assigned to perform any work which is inci
dent to their regular duties.
(e). When a mechanical device is used to perform clerical work assigned to positions covered by
of this agreement, the operation of such devices
for the performance of that work will be assigned
to positions covered by this agreement.
It is understood that management, appointive or excepted positions may activate mechanical devic
referred to in this rule (1) for the purpose of
making inquiry, securing reports or otherwise using the data stored in the mechanical device, but
shall not be permitted to operate such devices
for the input or storage of data currently assigned
to positions covered by this agreement.
Nothing in this rule (1) shall be construed to reserve the operation of such devices exclusively
employees covered by this agreement when such devices are used to perform work of the type that is
now being performed by employees not covered by
this agreement.
* * * * *
Director Equipment Utilization's force (title formerly Superintendent Transportation) may transm
messages and reports by telephone."
* * * *
We believe Carriers' reliance upon the third paragraph of Rule 1(e)
is misplaced. That section of the Rule seems clearly to apply only to the
"operation of such devices" when used to "perform work of the type that is now
being performed by employees not covered" by the Agreement. That is not the
situation here.
In Third Division Award 26942 involving the same parties and Rule it
was held:
"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
Form 1 Award No. 27567
Page 5 Docket No. CL-27235
88-3-86-3-325
the language of Rule 1(e) to have such a 'mechani
cal 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 mechani
cal means the Carrier is obligated to have such a
device operated by positions covered by the
Agreement."
That reasoning is applicable. Nor do we believe those portions of Rule 1
which specifically provide the "Director Equipment Utilization's force . . .
may transmit messages and reports by telephone" applies to the input of computer data as presented b
the specific exceptions agreed upon by the parties.
Carrier argues that if any violation is erroneously found it should
be considered de minimis as the work involved requires no more than two
minutes per day. The Organization views this as new argument which must be
disregarded. We agree a de minimus argument is not the same thing as a Claim
of excessiveness but we do note that Carrier argued in its initial response,
and consistently since, that the Claim is excessive.
While it now states only about two minutes of work per day is involved Carrier also placed the f
handling on the property. Even assuming fifteen minutes daily we agree the
requested relief of 8 hours pay is excessive.
We recognize not every violation of an Agreement requires a monetary
award, but here we are faced with a daily, repetitive, violation. We view
remedy from the standpoint of compensation, not penalty. We agree eight (8)
hours pay per day would constitute a penalty and we shall award one (1) hour
pay per day. We recognize this may require compensation for more time than
would actually be spent working on the Advance Coal Report, but we also must
consider it was the Carrier that violated the Agreement and is under a duty to
make whole employees for losses suffered. Carrier made no attempt on the
property to submit evidence, as opposed to mere assertion, regarding the issue
of time required to do the work it had improperly reassigned. In these
circumstances we are confident that the interests of both parties to the
Agreement are protected by this Award.
Carrier shall compensate the senior available furloughed employee
one (1) hours pay at the straight time rate for each and every day that the
violation has continued.
A W A R D
Claim sustained in accordance with the Findings.
Form 1 Award
No.
27567
Page 6 Docket
No.
CL-27235
88-3-86-3-325
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J r - Executive Secretary
Dated at Chicago, Illinois, this 29th day of September 1988.
CARRIER MEP".BERS' DISSENT
TO
AWARD 27567, DOCKET CL-27235
(Referee Cloney)
The only part of the five page "Award" that makes sense is
the first four paragraphs on page one following the "Findings"
caption.
For instance, following the quoted rule in contention, the
Majority issues the following conclusionary statement that simply
glosses over the uncontested, unchallenged history of the work
here concerned as outlined in Carrier's letter of May 1, 1986
(Quoted on Pages 2 and 3 of this Award). The following is from
Page 4:
"We believe Carriers' reliance upon the third
paragraph of Rule 1(e) is misplaced. That section
of the Rule seems clearly to apply only to the
'operation of such devices' when used to 'perform
work of the type that is now being performed by
employees not covered' by the Agreement. That is
not the situation here."
The "...the situation here..." is that as of the date the
work and position Scope Rule was signed, other than Clerks were
doing the very work that is the center of this dispute. The
"...now being performed..." (From third paragraph of Rule 1(e))
has reference to the manner and method this work was being
performed when the work and position Scope Rule was signed. The
Majority's ruling, in this dispute, seems to say that once
employees within the scope are assigned an item of work, it is
theirs exclusively, regardless of the work history. This theory
defies logic and ignores well-established principles of contract
construction as set forth by other Majorities in both PLB's and
Awards of this Division.
See Awards 15 and 69 of PLB 2668, Award 8 of PLB 3051, Award
10 of PLB 2969, Award 70 of PLB 2037. Third Division Awards
25902, 25975, 26597, 26327.
This Majority has recklessly abandoned sound principles of
this Board, ignored basic facts of the history of this work that
clearly, without challenge or comment reflected that this item of
work went from supervisors exclusively, to clerks and supervisors
jointly, to supervisors exclusively, to clerks exclusively, to
supervisors exclusively, with the only claim being filed was the
one here concerned.
Having reached the conclusion that indeed Carrier was guilty
of the infraction, the Majority then proceeds to search out a
remedy, based not on lost work opportunities, based not on the
facts of the case established on the property without challenge,
and only in pursuit of some self-serving ideal to impose its own
brand of industrial justice, did assess a penalty, a penalty the
Majority knows that is beyond scope of its jurisdiction.
The soundness(?) of their opinion is found by their further
statement that,
"...Carrier made no attempt on the property to
submit evidence, as opposed to mere assertion,
regarding the issue of time required to do the
work it had improperly reassigned
...."
The aforequoted would stand without comment had Carrier's
statement that only 15 minutes at the most was required for the
disputed work, been challenged by the employees, but it was not.
Fifteen minutes of work per day is involved, and pay
therefore could be rationalized as lost work opportunities, but
the extra forty-five minutes has to be because "...it was the
Carrier that violated the Agreement..."
The Honorable Justice J. Frederick Motz, of the United
States District Court of Maryland, in Docket JFM-84-3140, B&0 vs.
BRAC, clearly established that this Board lacks authority to
assess a penalty when he overturned Third Division Awards
24861,24862, 24863, 24864, 24865 and 24866. Excerpts from Judge
Motz's opinion follows:
"...The Fourth Circuit has held that penalty pay
is proper only if the employer had been guilty of
willful or wanton misconduct or if the collective
bargaining agreement provides for penalty pay.
x :r ,r
Likewise, it is clear that the collective bargaining
agreement does not provide for penalty pay. Indeed,
BRAG does not argue to the contrary .....There is no
authority in the agreement to apply this rule to the
alleged violation of Rule 37, by awarding penalty pay,
the Fishgold panel was merely dispensing its own brand
of industrial justice."
The Award is a nullity and defies sound principles of this
Board as supported by the Federal Courts.
We Dissent.
'R. L. HICKS M. W. INGERHT~
r.
M. C. LESNIK P. V. VARGA
. E. YOST
LABOR MEMBER"S RESPONSE
TO
CARRIER'S DISSENT OF AWARD 27567 (DOCKET CL-27235)
(REFEREE COLNEY)
The Minority Dissent continues to express it's misunderstanding
of the Award when it begins by stating:
"The only part of the five page "Award" that makes sense
is the first four paragraphs on page one following the
"Findings" caption."
Contrary to the aforementioned statement Award 27567 is not
only sensible, it is the only logical conclusion that could be made.
The Award does not break new ground it instead reinforces previous
decisions on the same property, the most recent being Award 26942
rendered by Referre G. Vernon (former Carrier Member N.R.A.B.). Both
Awards correctly concluded the following:
(1) The Scope rule in question is a "positions and work"
Scope Rule, not a General Scope Rule.
(2) The inputting of raw or new information into computers
is protected work because it is the transmission of
information by a mechanical means.
(3) Where there is loss of work opportunity reasonable
compensation must be afforded to protect the Agreement.
The Minority further argues that the "...Majority has recklessly
abandonded sound principles of this Board, ignored basic facts of
the history of this work..." That argument is incorrect. When the
Carrier argued that Supervisors performed similar duties in the past;
the Organization was able to prove that those employes who did like
work in the past were in fact covered by the Agreement, whereas
in the instant dispute the work being performed by supervisors
in Car and Train Control belonged to covered employees. To argue
otherwise is contrary to the facts.
Last, but not least the Miniority asserts:
"...to impose its own brand of industrial justice, did assess
a penalty, a penalty the Majority knows that is beyond scope
of its jurisdiction."
The aforementioned does not square well with the Award.
On page 5 the next to last paragraph the Majority stated:
We recongnize not every violation of an argreement requires a
monetary award, but here we are faced with a daily, repetitive,
violation. We view remedy from the standpoint of compensation,
not penalty. We agree eight (8) hours per day would constitute
a penalty and we shall award one (1) hour per day. (Underlining
our emphasis)
The Minority Dissent does not detract from the soundness of
Award 27567 which correctly followed the precedence of Award 26942.
The Majority made a reasonable conclusion that this Board
should stand by past decisions and not disturb settled matters
"Stare Decisis". The Minority simply continues to ignore the
factual record which sustained the Organization's position. we
disagree with the Carrier Member's Dissent.
William R. Miller
Labor Member
October 21, 1988
Date