THE DELAWARE, LACKAWANNA & WESTERN
RAILROAD COMPANY
There is no doubt that both Hart and McConnell each received a day's pay for the dates involved.
The Carrier had a course open to it other than working these men excess hours. Since, in the exercise of the Carrier's operating judgment, it would be possible to get along without such excess service, the use of these men would have constituted unlawful excess service under the Hours of Service Law.
Here again, Awards 2827 and 3488 have no application, since no man not covered by the Agreement was used on the job.
There is nothing in the Agreement that prescribes that the Carrier must work any clerk-operator beyond his normal hours. It must not,be forgotten that the correct approach to the construction of these agreements is not what the agreement permits the carrier to do, but what it forbids. Anything that is not granted to the employes is expressly reserved to the Carrier. This Board has so held:
It must be remembered that all agreements, of necessity, leave the carrier a wide field in which it must be left free to exercise judgment, and this is particularly true where the Hours of Service Law is involved.
Moreover, the elemental principle that damages are awarded by way of indemnity not enrichment is the guiding rule in contract law, and even without regard to the Hours of Service Law both claimants were compensated in accordance with the rules of the agreement.
3. Had the Carrier worked either claimant excess hours it would have violated the Hours of Service Act, since a course was open to it to avoid such excess service.
5. Awards 2827 and 3488 are erroneous, contrary to law and should be overruled. Compliance with these awards would subject every carrier relying upon them to immediate prosecution for violation of the Hours of Service Act.
6. In any event those awards were predicated upon alleged violation of the Scope rule in that an employe not covered by the Agreement was used to perform the work. They are not controlling here, where no such question is involved.
OPINION OF BOARD: At all times herein involved B & O Junction was a continuously operated facility with three 8 hour 7 day positions. Its regularly assigned incumbents were Agent-Operator C. K. Morgan, hours 8 A. M. to 4 P. M., Operator J McConnell, hours 4 P M to 12 midnight, and Operator T. J. Hart, hours 12 midnight to 8 A. M. The Agent-Operator 4102-16 34
position carries a monthly rate and comprehends 243 1/3 hours per month or 8 hours each calendar day.
June 24 and 25, 1946, and August 8, 9 and until noon on the 10th, 1946, Morgan was off duty on account of illness. June 24 and 25 the Carrier blanked the Agent-Operator position at Linwood and required Pfister, the Agent at that point, to protect Morgan's vacancy. August 8, 9 and up to 12 o'clock noon on the 10th it blanked Morgan's position. At B & 0 Junction, thereafter, and until Morgan's recovery it filled his position by an extra employe.
Claim 1 (a) and (b) is that use of the Linwood Operator was in violation of the Agreement, that Operators Hart and McConnell, regularly assigned to the second and third tricks at B & 0 Junction, were available and willing to protect Morgan's vacancy, and that they are each entitled to 4 hours overtime for June 24 and 25 because they were not permitted to fill Morgan's position on those dates.
The basis of Claim 2(a) and (b) is that the Carrier violated the Agreement by blanking Morgan's position on August 8, 9 and until noon on the 10th, that Operators McConnell and Hart should have been permitted to fill the vacancy, and that such Operators are therefore entitled to pay for that period, Hart for 4 hours August 8, 9 and 10, and McConnell for 4 hours August 8 and 9.
Except for the fact, which has no effect on its ultimate disposition, that the Agent-Operator position at Linwood was blanked while its regular incumbent was required to protect Morgan's vacancy on June .24 and 25, the facts and issues on which a decision of Claim 1 (a) and (b) depend are to all intents and purposes the same as those presented by the record in, and are determined by, Award 4101, this day rendered. No useful purpose would be served by here restating what was there said and held in disposing of a claim identical in principle. Therefore, based on such Award, we hold that Claim 1 (a) and (b) must be denied.
Claim 2 (a) and (b) presents entirely different questions which are not so easily determined.
Turning first to consideration of 2 (a) we have little difficulty in concluding the Carrier violated the Agreement in blanking Morgan's position on August 8, 9 and until noon on the 10th. As a result of the Carrier's action a position essential to continuous operation. was blanked and work covored by the scope rule of the Agreement was not only temporarily removed therefrom but employes to whom it belonged and had been contracted were deprived of an opportunity to perform it. Aside from another reason to be presently mentioned the Carrier's suggestion its action was justifiable because of the emergencies of the situation confronting it is belied by the fact that when it desired to fulfill its contractual obligations it apparently had no difficulty in finding relief or extra operators to fill the vacancies in the first trick position at B & 0 Junction.
The only vital issue remaining is whether, under the Hours of Service Law, Operators McConnell and Hart had the right to perform the relief work in question and are therefore entitled to compensation as claimed in 2 (b) of the Claim. That such Operators were entitled to the work under the conditions and circumstances disclosed by the record, i. e., sickness in a regularly assigned position followed by a temporary vacancy with no extra Operators available, has been answered by this Division in the affirmative in Awards 2827, 3488, 3609 and 3631. The Carrier insists such Awards should be overruled as erroneous. However, in support of its position it offers nothing new or constructive and presents no argument that has not already been considered and rejected by this Division in their rendition. We therefore adhere to and reaffirm the conclusions announced in Awards 2827, 3488, 3609 and 3631 and rely upon them as sustaining precedents for our instant decision the claimants are entitled to the work in question. In our opinion the fact the work here was not performed because of the blanking 4102-17 35
of the position to which it belonged whereas the work involved in such Awards was performed by outsiders has no bearing on the result and affords no basis for a different conclusion..
While Claim 2 (a) and (b) is sustained as heretofore indicated compensation, following what are now the established precedents of this Division (Awards 4037, 3890, 3876, 3814, 3609 and 3488), will be limited to the straight time rate.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That Claim 1 (a) and (b) should be denied and Claim 2 (a) and (b) should be sustained as indicated in the Opinion.
Claim 1 (a) and (b) denied. Claim 2 (a) and (b) sustained subject to the quailfication that payment shall be at the pro rata rate instead of the overtime rate.