Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29046
THIRD DIVISION Docket No. CL-29232
91-3-90-3-99
The Third Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(Transportation Communications International Union
PARTIES TO DISPUTE:
(Grand Trunk Western Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10417) that:
(1) Carrier violated the Agreement, particularly Rule 1 (Scope)
among others, when on or about October 28, 1988, it removed work in connection
with inputting locomotive servicing data into the Carriers Computer by means
of a CRT from covered employeesland assigned it to employees not covered by
such Agreement.
(2) Carrier shall now return this work to employees covered by the
Agreement and shall compensate Mrs. R. J. Horgan for four (4) hours pay at the
overtime rate of her Steno/Clerk position (Battle Creek Heavy Repair Shop) for
each of three (3) shifts, seven (7) days per week, commencing October 28,
1988, and continuing for each subsequent shift and date thereafter that a like
violation occurs at any point on the GTW Railroad."
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.
The International Brotherhood of Firemen and Oilers and the International Association of Machini
pendency of this dispute and declined to file submissions as Third Parties in
Interest.
Form 1 Award No. 29046
Page 2 Docket No. CL-29232
91-3-90-3-99
Prior to October 28, 1988, the Claimant's duties as Stenographer at
the Battle Creek Shop Superintendent's office included entering data concerning locomotive inspectio
from a Form 625, which was prepared by mechanical employees at other locomotive servicing facilities
entry. During the period of time covered by this claim, the data was entered
into the computer by mechanical employees at the various locations, rather
than by the Claimant. The Carrier, apparently, made this change due to an
inability to process the data on a timely basis. The Organization contends
this action by the Carrier constituted an improper removal of work from the
Claimant's position.
The evidence before the Board indicates the mechanical employees,
when making their inspections, note certain information (e.g., odometer
reading, fuel added, etc.) in personal notebooks they carry from locomotive to
locomotive. Prior to this claim these notations were transferred to the Form
625. This was done either by the individual mechanics or by one mechanic who
collected all the notes. The Forms were then sent to Battle Creek for processing. When computer term
process of initially recording the information did not change. At the end of
the shift, however, the data from the notebooks was entered into the computer
by the mechanics. It appears that at least some of the mechanics first transferred the data to a For
Carrier, however, avers it directed mechanics to discontinue completing the
Form 625 when it discovered it was still being used.
The Organization argues work performed by employees under the scope
of the Agreement may not be removed and performed by others without mutual
consent. It bases this argument on the position the Scope Rule is a "position
and work" Rule, rather than a general Rule. Such was the holding of Public
Law Board No. 2189 involving these parties in Award No. 16. In that case, the
Public Law Board held as follows:
"Thus, the dispute herein devolves to the question of
whether indeed work was removed from the employees
covered by the Agreement in violation of Rule 1-g.
There is no doubt that if work was removed from
within the jurisdiction of employees covered by the
Agreement, it would be a violation of Rule 1-g. This
particular issue has been dealt with in numerous
Awards of the Third Division as well as Public Law
Boards. Among other Awards, Third Division 20839
provided as follows:
Form 1 Award No. 29046
Page 3 Docket No. CL-29232
91-3-90-3-99
...
with regard to the instant case we are in
particular agreement with the following language
which is applicable to this dispute, 'the weight
of authority of the Third Division National
Railroad Adjustment Board Case Law compels a
finding that when the scope rule of an Agreement
encompasses positions and work that work once
assigned by a Carrier to employees within the
Collective Bargaining Unit thereby becomes vested
in the employees within the Unit and may not be
removed except by agreement between the parties."'
The Carrier argues it is the nature of the work and not the tool used
which distinguishes the work of a particular craft and creates a potential
scope rule violation. It asserts the substantive nature of the work involved
is the reporting of locomotive servicing data. It is the technology, continues the Carrier, which ha
Form 625 to the computer. ,
While we agree with the Carrier's general premise, we conclude the
nature of the work involved in this case is the entry of the data into the
computer system. This is the work which was done by the Claimant before the
change in procedures. Since then, the work has neither changed nor disappeared; it has simply been m
the same information being entered into the computer by the mechanics as was
entered by the Claimant. The information is still generated by the mechanics
making notations in their notebooks. The elimination of the intermediate Form
625 does not change the nature of the work. Therefore, we conclude the work
of entering the locomotive inspection data was improperly removed from the
Claimant's position and assigned to employees outside the scope of the Agreement. The Agreement was
The Carrier has raised a timely objection to the measure of damages
sought by the Organization. According to the Carrier, the amount of time
consumed in entering the data would be approximately thirty (30) seconds per
locomotive. The Carrier further avers its records reflect a daily average of
90 locomotives being serviced. The Organization, however, asserts the violation occurs on each of th
conclusive data, we will award the Claimant two hours pay at the pro rata rate
for each date she has performed service during the period covered by the claim.
A W A R D
Claim sustained in accordance with the Findings.
Form 1 Award No. 29046
Page 4 Docket No. CL-29232
91-3-90-3-99
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J. D -Executive Secretary
Dated at Chicago, Illinois, this 22nd day of November 1991.
CARRIER MEMBERS' DISSENT
TO
AWARD 29046, DOCKET CL-29232
(Referee McAllister)
It is well settled in the railroad industry that any
employee may use a computer, and the claim made did not seek
to disturb that principle. In fact, in the Organization's
brief to the Board in this case, they specifically stated
that the Clerks were claiming only "the production work of
inputting data." On page 8 of their brief, they went on to
state that they were not arguing for the "exclusive rights
to the use of computers, but rather exclusive right to the
work of repetitious production input relative to compiling
records."
With that in mind, the only way this Board could have
sustained the claim in this case is if it had found, on the
facts, that the work in question was repetitious production
input. A review of the Award issued by the Majority in this
case will show that the summary of the facts, which was
correct, does not support the conclusion that the work was
production work, and should not have produced a sustaining
Award.
The Majority found that originally shop craft employees
prepared written summaries of their work (Form 625 locomotive servicing report) which were then sent
many locations on the system. She input the data from those
reports into the Carrier's system. The Majority went on to
find that the current method of reporting locomotive servi-
Carrier Members' Dissent
Award 29046, Docket CL-29232
Page 2
cing data is for the shop craft employee who formerly prepared the Form 625 to input his information
the computer. Since no Form 625s are prepared, the production work of inputting stacks of them has c
exist. The Majority specifically found at Page 3 of the
Award that the Form 625 was no longer used.
Nevertheless, the Majority went on to characterize the
work in question as the inputting of locomotive servicing
data, rather than the reporting of locomotive servicing
data. This is the fundamental error in the Award. If
indeed that were the correct statement of the work, then
effectively any use of the computer would constitute work
properly reserved to a clerk, and not even the organization
takes such an expansive position. The work which must be
analyzed is the work of reporting locomotive servicing data
and that work, whether using a pencil to fill out a Form 625
or entering information directly into a computer, is clearly
and traditionally identified as the work of the shop craft
employees.
Had this been a case of first impression for the Board,
we might understand the confusion. However, the following
summary of the history of similar disputes, all of which
were presented to the Majority in this case, should establish for anyone reading this Award that the
case supported a denial Award consistent with the precedent
Carrier Members' Dissent
Award 29046, Docket CL-29232
Page 3
on this Board and Public Law Boards throughout the railroad
industry.
In Third Division Award 28907, the claim was denied
when the Carrier eliminated its preprinted form for certain
car repair data by having the shop craft employee enter raw
data directly into the computer system. Significantly, the
Majority stated:
"The work of recording car repair information in
this instance, whether by hand or by machine,
belongs to the write-up man, a Carman
......
In Third Division Award 28097, no agreement was violated when management commenced enteri
computer system. Significantly, the Majority held:
"...In the past, a pencil, paper and calculator
were used by management employees to prepare
statistical analysis. At the present time a PC
is being used by these same persons to perform
the same work
...."
In Third Division Award 27615, the Majority found no
violation occurred when Carmen entered data directly into
the computer system, which they formerly wrote on preprinted
forms, eliminating the need for a clerk to perform that
function. Significantly, the Majority stated:
" ..Here a clerical step has been eliminated and
it is well established that no scope clause
violation can result
...."
In Third Division Award 27098, the Majority found no
violation occurred when management used a computer to input
data it previously generated by using "...pencil, paper and
Carrier Members' Dissent
Award 29046, Docket CL-29232
Page 4
calculator ...."
In Third Division Award 26815, the Majority found no
violation occurred when the Carrier changed the method of
reporting and processing foreign car repair information by
modifying a report, thus eliminating the need for a clerk to
code the data. Significantly, it stated:
"...Thus, the Carrier simply eliminated a duplicative, intermediate step in the processing of
foreign car repair information ...."
In Award 21 of PLB No. 4721, the neutral found no
violation occurred when the Carrier required trainmen to
enter information into the computer system regarding the
crew and its activities. The trainmen contended this work
was exclusive to the Clerks. The Clerks participated in the
dispute contending that the work being done by trainmen was
theirs exclusively. Significantly, the Board held:
"This work was not contemplated as work being
reserved to any craft, such as the TCIU. This
is a technological advance being made in the
industry which has been recognized in many
awards as being permissible. The Board finds
that the Carrier may require train and engine
employees to relate their train information via
a CRT."
In Third Division Award 25902, the Majority found no
violation occurred when employees of one of the Carrier's
shippers commenced entering data directly into Carrier's
computer, instead of furnishing to the Carrier's clerical
employees for data entry into the computer system.
Carrier Members' Dissent
Award 29046, Docket CL-29232
Page 5
The Majority in Third Division Award 25902 relied
heavily upon Third Division Award 23458. Both Awards set
forth the principle reinforced in Third Division Awards
28907, 28097, 27615, 27098, and 26815, as well as Award 21
of PLB No. 4721 cited above with the conclusion that:
"...ample authority, with which we concur,
establishes the proposition that a Carrier has
the right to eliminate an intermediate step in
the transmission, receipt and processing of
information ...it does not constitute a transfer
of work ...."
The above Awards were furnished the Majority in this
dispute because they are on all fours with the instant
dispute. In this dispute the Carrier merely eliminated a
step in the transmission, receipt and processing of locotive inspection data - no Form 625 is prepar
Shop forces continue to report the same information. The
only difference is they now use a computer as opposed to a
prepared form.
Each of these Awards was studiously ignored as though
it did not exist. To sustain the claim, the Majority relied
heavily upon Award 16 of PLB No. 2189, which it either misconstrued or failed to understand. In Awar
the receipt and transmission of certain data and reports to
others outside the scope of the Clerk's Agreement. In this
case, the production inputting of Form 625 was not
transferred; it was eliminated.
Carrier Members' Dissent
Award 29046, Docket CL-29232
Page 6
Significantly, the neutral who authored Award 16
obviously understood the Agreement language and did not
ignore principle and precedent since the same neutral in
Award 99 of PLB No. 2971 (also furnished by Carrier) found
no violation"occurred when management entered data directly
into the computer, which it had previously recorded and
formatted manually, nor did he find a violation in Award 55
of PLB No. 1812 wherein he stated:
"...Operating a CRT device is incidental to the
Carman's primary duty to compile and report car
repair information ...."
Notably, Award 55 of PLB 1812 was cited as precedent in
an arbitration proceeding between another Carrier and the
Employes herein. The neutral in that case found no violation occurred when conductors were required
same data in the computer system that they had previously
recorded on a preprinted form and forwarded to a clerk who
then entered the data into the computer system. (See
arbitration between CSX & TCU, Muessig.)
One final word. As mistaken as the Majority's decision
is, it is clear that it is based upon an erroneous determination of the nature of the work performed
of the instrumentality used to perform such work. There is
nothing in the Award which restricts the use of computers to
members of the clerical craft, and this Award should not be
so construed.
Carrier Members' Dissent
Award 29046, Docket CL-29232
Page 7
We do dissent most vigorously to this Award with the
confident expectation that others will treat it as the
anomaly it is.
R. L. Hicks M. W. Fingerhut -
M. C. Lesnik P. V. Varga
i -wv - .
E. Yost