Panties to Dispute: ( (Carmen)


                      ( Baltimore and Ohio Railroad Cor~:ny


        Dispute: Claim of Employes :


                3.. That order the current agreement the Carrier inproparly assigned other than Baltimore and Ohio Carson to repair Tank Car ACCf:a5032 on Novenber LS, 1971, aat Albany, Iudiana.


            2. That accordingly, the Carrier be ordered to wake the Carmen's

            Graft EJaole by a::ddLtiO^311yt CC;p.°""~:'<a:~.'tl.i2b GarCi:.`.~.i7 C. R. i'- ::i:i~y

            and E. t~'.attesan in the amount of four (4) hours ouch at t:~e pro

            rata rate of pay.


        Find ing's.


' The Second Division of the Adjustment Board, upon the whole record and
        all the evidence, finds that:


        The carrier or carriers and the ennloyo or PmployAs involved in this dispute are respectively carrier and enploye within the ncaning of the Railway Labor Act as approved June 21, 1934.


        This Division of the Adjustir.·nt Board has jurisdiction over the dispute involved herein.


            Parties to said dispute waived right of appearance at hearing thereon.


        There is no controversy between the Parties concerning the basic facts underlying this dispute. Carrier admits that its Trairl-~ster at North Vernon, Indiana had called upon Gar-man employed by mother Carrion to make repairs en a tax car belonging to Carrier on Carrier property and that this bias an error on his part. Carrier seeks to he absolved of responsibility for this violation of the controlling agreement between it and the Petitioner on the ground that the action was taken "without t1 -'e knowledge of consent of any Ii&O Car Delpartmsn:. Officer". Tiais, it !-,~.; ir!ta ins was clearly established by the fart :hat on the morning subsequent to the improper assignr:~nt, its %'-."-r Department officials at Jeffersonville, Indiana, believing that the car involved was awaiting repair, disratchad an assistant foreman and two Wv!O carmen stationed at Jeffersonville to perfonn the necessary repairs. Upon their arrival at the siding where the disabled

        Ford l Award No. 6711

        Page 2 Docket N4. 65137

        2=B,",r0-Chi°' 74


        equipr;ent had been sit off, they found that the work had been complatod

        by others. rze position is not tunable. 7lie trair:.raster is a supervisory

        employee of the Carrier and acts undertaken by him are attributable to his Employer. It is incu;e.bent upon Carrier to properly instruct its agents so that they will .adi:ore to the terms of ULe control li:-:g agreement in assigning work to be gerfoAr:::d on Carrier's equigb:vnt. If this sere the sole question before us, the claim would have been sustained.


        However, the Carrier gut in issue the validity of the status of Carmen Mosby and Matteson as the appropriate claimants. It is ancontroverted that Messrs. Mosby and Matteson "worked their regular tour of duty on November 18,. 1971" (the date of the violation) "and were paid at the prevailing rata". No where in PetitionAr's submission can there be found probative statements to indicate that the clviraWs E;Yould have teen the workers who would hava been entitled to be assigned to this work. i1us, the remedy sought by Petitioner is in effect a penalty for the admitted violation.'


            Although this Board has recognized organization claims that employes

        be compensated for breaches of Agreements by Carrier, our As-:ards have aiwt,ys been consistent in requiring sore showier; of entitlet;:ent thereto ak- to an actual, p1G::s:iijl:i: or X71; le'ci:~i. a pi5s;ilJiW3icpriVa'i.i.i3t7 GL tvUi'iv st3:i;sT'ei7 by tbCsy for 4d4iil 118~.1. CauiG: S'iv..:i -made. i'::arCis cited by Pe:it:3,Ciiii?1 Cl:_°i'·.$'ly

i
        bear this out.


        In Award 3405, the Organization's suo-aission sets forth, "The Gamier ... assigned a stores department employee ... to perform the rmgin.a_r assigned duties of Claimant Gv'iss ..." (emphasis supplied)


        In Award 4489, we held that, "With regard to the issue of ii,,--ardinb damages ... many awards of this Division ... have held that when wor!: is improperly given to one not contractually entitled to it that the c?a i.r..1~.nt;~ who would have otherwise received the work, may toe awarded pro-rata pay for the job for which he was not properly called." (emphasis supplied) In that case, the Position of the Employes opens with "... clai;.:ant should have been recalled or held from the crew in order to assist the district lineman. e ell


        In Award 4322 the Employee's Statement of Facts reads in part: "Claimant was on the car inspectors extra board ... Claimant made written request to m.,anagement to be permitted to work the vacation vacancy..." In our FirdinVs we stated "... a bulletin was issued by management saying certain jobs would not work Monday, September 5 .., but no mention awes W3ue in that or any other bulletin of blanking ... the vacation vacancy of which Claimant ... had already filed request to fill".

Forty 1 Award No. 6711
 Page 3 Docket :,<o. 6587
 2-B;YO-Wi-' 74

 In Award 4318 we held: "As it teak twelve hours tire to construct one temporary truck, Claimant was deprived of b.:enty-four hours work that he might oth4rcrise have performed ... What is being awarded here is for _com_o9rs;3torv_dc:7=i-geJ and is not a case in which Cal-rior is being 'p--na-lized'

 for a rule infraction. The ~ ~~ary Awards which hold that this Board i:as no authority to assess a penalty to enforce an agreement are, therefore, not relevant." (emphasis supplied) The related holding in Award 5032: "the violation ... resulted in actual damage to F, titior:er treasured in specific loss of hours of work", and this same concept was followed in Award 5035.

 In Award 5341 the Claisn: of Employes specified that claimants "were working on the adjacent track" as a basis for their contention teat they wc:uld nora^al?y have been assigned the work which had improperly been given to others to do. As indicated in Award 4HiS, this Division has not adhered to provide a contrary view and we are not in a position to, at this juncture, apply principle a not accept-able to this Division.

 The cmmission of the essential facts to augport the reedy aspects of the claim was fatal to it.

                      A 1vW A R D


    Claim I, sustained.


    Claim 2, denied.


                            NATIOi~.AL RAILROAD ADJtJS'i'aLis'T BMP,D

                        . By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 By __
 `4~Rosenaarie Branch '- Administrative Assistant

 Dated at Chicago, Illinois, this 25th day of June, 1974.
                                                  N

                                                V ,

                                                V v.~

~ ~R '1

            LABOR VfEF~M:S' DISSENT AND COI3t^iTRR'.ri;G OP:[:'~Qz~' YOUHN


                TC AV:TAT.?D NO.6711, DOCKET No. 6587


          The Claim of the Employes in Award No. 6711, Docket No.


      6587, was:


        "1. That under the current agreement the

              Carrier improperly assigned other than

              Baltimore and Ohio Carmen to repair

              Tank Car ACFX 85032 on November 18,

              1971, at New Albany, Indiana.


          2. That accordingly, the Carrier be ordered

              to make the Carmen's Craft whole by

              additionally compensating Carmen C. R.

              Mosby and E. Matteson in the amount of

              four (4) hours each at the pro rata rate

              of pay."


          The Referee in Award No. 6711, Docket No. 6587, sustained


..a Claim 1 of the Employes' claim and the Labor menbers concur in

      this decision.


          However, Claim 2 of the Employes' claim in Award Lao. 671.1,


      Docket No. 6587, was denied and the Labor Members dissent.


          In an effort to justify denying Claim 2 of Employes' claim,


      the following statement was made in Award No. 6711, Docket No.


      65 87


              "However, the Carrier gut in issue the validity of the status of Carmen Mosby and Matteson as the appropriate claimants. It is uncontroverted that Messrs. Mosby and Matteson 'worked their regular tour of duty on November 18, 1971' (the date of the violation) 'and were paid at the prevailing rate.' No where in Petitioner's submission can there be found probative statements to

          " indicate that the claimants would have been the workers who would have been entitled to be assigned to this work. Thus, the remedy sought by Petitioner is in effect a penalty far the admitted violation.


          Although this Board has recognized organi zation claims that employes be compensated for breaches of Agreements by Carrier, our Awards have always been consistent in requiring sane showing of entitlement thereto due to an actual, probable or at least a


                        4

possible deprivaton of work suffered by those for whom the claim was made. Towards cited by Petitioner clearly bear this out." after which a short summary of Second Division Award Nos. 340!i, 4489, 4322, 4818, 5032, 5035 and 5341 was given in an effort to further justify denying Claim 2 of Employes' claim.
 The above listed awards were furnished the Referee to substantiate the Employes' position that when a rule or rules of the agreement are violated, Carrier is subject to the penalty as claimed. The issue as to whether the Claimants were the ones entitled to be assigned the work was not raised in these awards.
 In addition to the above listed awards, Third Division Award Nos. 12309, 15385 and 20020 were furnished the Referee in support of the Employes' position.
 In handling this claim on the property Carrier, among other things, alleged that the Carmen's Craft suffered no loss of earnings and in their Rebuttal it was stated that if the car had required repairs it would have been performed by two other carmen, not claimants, therefore raising the issue as to claimants being the proper claimants.

                                - 2 - LABOR MEI,wERS' DISSENT ARID CONCURRING OPINION TO AWA,RD NO. 6311, DOCKET NO. 6587.,

    ,.,. , To refute this line of argument the Referee was furnished


        Third Division Award Nos. 1646, 2282, 3376 and 9759.


            In Third Division Award No. 166, Referee Bruce Blake


        stated:


                "The Carrier contends, however, that, under the rule as interpreted North was not entitled to be called. True essence of the claim is by the organization for violation of the agreement. The claim for the penalty on behalf of North is merely an incident. That the claim might have been urged in behalf of others having, as bet~-ieen themselves and North, a prior right to make it, is of no concern to the Carrier. * ~ *.


                * * *~


                Claim sustained."

In Third Division Award No. 2282, Referee Fred L. Fox a
        stated:


                "The claim will be sustained solely in the interest of maintaining the integrity of the current agreement, and as a penalty for what we believe was a violation thereof. As stated by the Emergency Board created by the President in its report of February 8, 1937,


                    'The penalties for violations of . rules seem harsh and there may be some difficulty in seeing what claim certain individuals have to the money to be paid in a concrete case, yet, experience has shown that if rules, are to be effective there must be adequate penalties for violation.'


                Here the amount of money involved is small, and the penalty not harsh; but neither fact should have any bearing on our decision on the basic principle involved.


                it * * ,


                Claim sustained."


                                  - 3 - LABOR MEMBERS' DISSENT AND

                                          CONCUPURrT.NG OPINION TO AWF:?,_D

                                          NO. 6711, DOCKET NO. 6537.

        In Third Division Award No. 337:6, Referee Ernest M. Tipton stated:


                "The Carrier makes the further contention

                that the Claimant was junior in service

                to W. H. Nelson W no was working the second

                shift and was available for the work, and

                further states that the Claimant had in

                dicated that he did not wish to 'double on

                two shifts except on infrequent occasions'.

. However, the fact remains that neither ha
                nor Nelson ware offered this work. But this

                claim is for a penalty and this Board has

                ruled that the Petitioner may make the claim

                for compensation in the name of any employe,

                as it is only incident to the violation of

                the Agreement. See Awards Nos. 1646 and.

                2282."

        In Third Division Award No. 9759, Referee Raymond E. LaD:riere stated:


                "The Carrier is correct in asserting that no loss of pay was suffered by anybody, but this same point was dealt with by Referee wenke (Award 6063) where it was said that the claim is primarily to enforce the scope of the agreement and not for work performed, that if the scope has been violated then a penalty is imposed to the extent of the work lost; what this is done to maintain the integrity of the agreement and that as to who gets the penalty is but an incident to the claim and not a matter in which the Carrier is concerned. This view has been followed in a great number of awards one of the most recent of which is Award 9545 by Referee Bernstein."


            See Second Division Award Nos. 1269 and 2214.

        One of the basic purposes for which the National Railroad Adjustment Board was established was to secure uniformity of interpretation of the rulers governing the relationship of they


                                        - 4 - LABOR MEMBERS' DISSENT Aims CONCURRING OPINION TO AWAPM NO. 6711, DOCKET NO. 6`i£i7.

    Carriers and

                -the organizations of Employes. See Third Division


    Award No. 4563.


          Referee Jesse Simons stated in his Findings in Second Divi-


    sion Award No. 6201:


              "This critical need for Referees, and Boards, to give the highest consideration and greatest possible weight to prior Awards, is grounded on the premise that it will. permit the parties, all the parties, across the country to be supplied with a unitary body of decisions permitting uniform administration of the rules and clauses of the agreemer..ts. National agreements, national unions, and nation-wide carriers require such unitary interpretation and application of their rasp octz.ve rights and obligations so contract a&Anistration can be a simple straight-forward matter, and adjudication and re-adjudication reduced to a minimum."


"`~'' Therefore, for the above stated reasons, the L,:-4.bor Members
 m
    dissent to the decision rendered in Claim 2 of the Employes' claim.


                              t~lr ~ s ~ i

                              _J. ~ .~.~ > :~ ,L 'l_


                              W O. Herarn - Labor Member


                                  .. ) ~._;!` l S/ Ic-., ; j.r /`-`'rf--~-


                              E. ;J. McDermott - Lobar Member


                                                ;.__

                                    ( _ .. . . .


                              D. S. Anderson -Labor Ifeinber


                              G. R. DeHague r - Labor Member


                                        .~D~/


                                J `I` r

                                        rL'C`..~'


                                E. -'Haesaert - Labor Member- 5 -- LAEOIt MEfMERS' DISSEiIT AND

                                CONCURRING OPINION t O AV;iA~''r

                                    NO. 6711, DOCKET NO.6537.