STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
1. Carrier violated and continues to violate agreement rules by establishing a position of "Assistant Agent-Azusa-Glendora" under the agreement of another craft and class, to perform clerical work at and incidental to the Azusa, California, Agency, and concurrently therewith abolishing position of Station Clerk, Job. No. 5.
2. The Carrier shall now pay Telfair Koch, former incumbent of abolished Station Clerk Job. No. 5, a day's pay at the rate of pay of Station Clerk Job No. 5 for November 14, 1955 and continuing, for each date of violation.
EMPLOYES' STATEMENT OF FACTS: The Operating Department of the Carrier maintains a non-telegraph agency station at Azusa, California, engaged in the carload and less than carload freight business, express, and the selling of passenger transportation.
Previous to the effective date of the Clerks' Agreement with the Carrier, the clerical work of the agency was performed by employes under the supervision of an employe with title of Agent. On April 1, 1935, the Clerks' Agreement with Carrier became effective and until inception of this dispute in 1955 was applied to all employes at Azusa other than the Agent, whose position was first covered and identified by Agreement between the Carriers and The Order of Railroad Telegraphers dated September 16, 1934.
Immediately prior to August 1, 1955, the following station force was identified and maintained at Azusa, working between the hours of 5:00 A. M. and 5:00 P. M., daily, except Saturday and Sunday:
All data in support of Carrier's Submission is within the knowledge of the employes. Carrier reserves the right to submit additional data in opposition to data which may be presented by the employes and of which the Carrier now has no knowledge.
OPINION OF BOARD: The claim is, in substance, that the Carrier, in violation of its Agreement with the Brotherhood, abolished the job of Station Clerk at Azusa-Glendora, California and assigned the work to a newly created position at that location, namely Assistant Agent, covered by an agreement between the Carrier and The Order of Railroad Telegraphers. Notice has been given to the Order under Section 3, First (j) of our statute.
The background of the claim involves two locations, Azusa and Glendora. Azusa, a non-telegraph station, was originally a one man post manned by an Agent. By 1955 it had grown and embraced the Agent's position plus five clerical positions, one of which was Station Clerk. Glendora, also a non-telegraph station, some two and one-half miles from Azusa, was manned by an Agent. Business at Glendora so far declined that the Carrier decided to abolish the Glendora agency, as it had the right to do. However, faced with objections by the Order and the remaining shippers, it transferred the Glendora Agent to Azusa and continued Glendora as a separate entity at Azusa, in January 1952.
Thereafter Glendora business declined drastically. In February 1954 the Carrier decided that continuance of Glendora as a separate agency was not justified. The agencies were consolidated as Azusa-Glendora. On July 16, 1955 the Azusa Agent became Agent, Azusa-Glendora; the Glendora Agent became Assistant Agent, Azusa-Glendora. Claimant's position, Station Clerk, was abolished on November 11, 1955.
The Brotherhood does not contest the Carrier's right to combine the agencies. Nor, for purposes of this dispute, does it contend that the newly created Assistant Agent could not continue to perform such Glendora work as remained or assist the Azusa Agent in clerical work normally performed by him (c.f. Award No. 8313). The complaint in essence is that the work of Station Clerk substantially existed, and that the job was nominally abolished in order to provide work for the new position of Assistant Agent.
Certain salient points emerge. Glendora's decline would have resulted in abolition but for protest. Upon transfer of the Glendora Agent to Azusa, the 9546-18 118
Glendora work which the Glendora Agent took with him was, concededly, "little". The Glendora work continued to diminish to such an extent that consolidation resulted. The new position of Assistant Agent was established. Prior to its establishment at Azusa there were five clerical positions and but one Agent sufficed. It does not appear that Azusa-Glendora was prospering. On the contrary, it is said that the job of Station Clerk was abolished because of decline in business. If Glendora agency work had so far diminished and the combined agency was declining, how was the Assistant Agent to substantially occupy his time unless the job was filled out? The Azusa Agent had handled the needs of his position, including clerical work, and the Glendora work left for his fellow Agent was de minimis.
Claimant's statement dated November 11, 1955 sets forth the work then done by him as Station Clerk. True, the statement is entitled "Job Description" (rather than Job Audit or the like) but it states that the tasks were performed, assigns time to each, and adds up to a day's work. When the job of Station Clerk was abolished its duties were not assigned to other clerical positions.
It is urged that there is no adequate showing that the work performed by the Station Agent was exclusive to his job by custom or tradition. However helpful this approach, we have here a particular set of facts which speak for themselves and we need not range from them. It does not appear that the duties of the Azusa Station Clerk had been performed by the Glendora Agent while stationed as such at Azusa on a fill in basis or that there was an ebb and flow of work (e.f. Awards No. 7311, 9395). The time lapse between creation of Assistant Agent and abolition of Station Clerk weighs in favor of the Carrier to a degree, but its weight is offset by Claimant's description of his work on November 11, 1955, which has not been impugned except in terms of the statement's formal title.
In sum, the work of Agent-Glendora had withered and the job had been abolished. The new position of Assistant Agent, not previously deemed warranted in more prosperous times, had been created. The Azusa Agent, without the help of an Assistant, had done the clerical work incident to his job at Azusa. The new job of Assistant Agent certainly was not intended as a sinecure. It was given substance by abolition of the job of Station Clerk and transfer of Station Clerk duties.
Our decision is based upon the particular facts, involving, among other things, creation of a new job. Had the duties of Station Clerk been taken over by the Agent, different problems might be presented.
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
While we emphatically disagree with the conclusions of the Majority with respect to the merit of this case, we are compelled to dissent to awarding penalty payment to the Claimant involved because he (Claimant) lost no time or pay and the Agreement contains no penalty payment provision for the Agreement violation alleged.
In awarding such penalty payment in the absence of an Agreement provision so providing, the Majority have ignored this Board's consistent holdings that employes damaged by Agreement violations should be made whole (Awards 9395, 8674, 8673, 8500, 7309 and 7183), and that it lacks authority to assess fines or penalties not stipulated by Agreement provision (Awards 9395, 8674, 8673, 7309, 5186, 3651, Second Division Award 1638, and First Division Award 15866). In so doing, they have held Carrier liable for that which it has not contracted (Award 6001) and have established a rate of pay (Award 9212), thus adding to the Agreement rather than interpreting it (Award 6757), and violating Agreement Rule 55 which requires negotiation for any change in the Agreement.
LABOR MEMBER'S ANSWER TO CARRIER MEMBERS' DISSENT TO
AWARD NO. 9546, DOCKET NO. CL-9218
This Division has repeatedly rejected Carrier Members' contentions that this Board has no authority to assess damages in the nature of penalties for a violation of an agreement. See Awards 685, 1524, 1605, 1646, 2072, 2272, 2282, 2346, 2838, 2920, 3049, 3193, 3271, 3277, 3371, 3375, 3376, 3423, 3631, 3744, 3745, 3835, 3876, 3890, 3910, 3913, 3955, 3963, 4022, 4037, 4103, 4196, 4244, 4370, 4461, 4467, 4534, 4544, 4550, 4552, 4571, 4599, 4667, 4728, 4815, 4883, 4962, 5115, 5117, 5243, 5266, 5269, 5271, 5333, 5419, 5425, 5465, 5764, 5921, 5923, 5926, 5929, 5930, 5939, 5943, 5978, 6019, 6063, 6144, 6157, 6158, 6160, 6284, 6306, 6358, 6444, 6465, 6544, 6630, 6685, 6814, 6842, 6907, 7022, 7062, 7100, 7203, 7242, 7816, 8188, 9545 and those cited therein. The principle controlling here was summed up by Referee Wenke in Award 6063, as follows:
CARRIER MEMBERS' REPLY TO LABOR MEMBER'S ANSWER TO
CARRIER MEMBERS' DISSENT TO AWARD NO. 9546,
DOCKET NO. CL-9218
"We do not think that Claimant is entitled to the time and onehalf rate in the present case for the time he lost. The rule is that the penalty rate for work lost because it was improperly given to one not entitled to it under the Agreement, is the rate which the employe to whom it was regularly assigned would receive if he had performed the work. Award 3193. The regular occupant of the position in the present case would have received the pro rata rate. The present claim will be sustained at that rate." (Emphasis ours.)
"Claimant was clearly entitled to be compensated for his Sunday work at the time and one-half rate in accordance with Section 2(b). The Carrier contends that this portion of the claim, if sustained, should commence on February 11, 1948, the date the claim was filed. We think not. This portion of the claim is not for a penalty; it is for compensation earned at an agreed upon rate."
"It must be conceded that the Agreement does not contain a specific provision for a penalty in case of nonperformance of the obligation imposed by Article 8, Section 10. It is also well established by the precedents of previous awards that the Board will not impose a penalty where none has been specified in the Agreement. This is a sound doctrine. But it does not necessarily follow that where no penalty has been provided, this Board is helpless and without authority to make an award which will tend to enforce compliance with the terms of the contract.
The usual award is for the difference in the rates of pay between the position held by the Claimant and the position wrongfully denied him (Awards 2143, 2815, 3419, 3380, 4183, 4431, 4438, 4940, 4541). There was, no such loss here because the basic rates of pay for the two positions were identical."
CARRIER MEMBER'S REPLY TO LABOR MEMBER'S ANSWER TO
CARRIER MEMBER'S DISSENT TO AWARD NO. 9546,
DOCKET NO. CL-9218
Under the provisions of the Railway Labor Act, as amended, an Emergency Board investigates the facts as to the dispute and makes a report to the President thereon. This report usually includes recommendations for the settlement of the dispute. An Emergency Board, however, as confirmed by the Courts, has no jurisdiction to interpret Agreements (minor disputes), which function is reserved exclusively to this Board.
The statement of the Emergency Board as quoted in Award 685 was merely an excerpt from that Board's observations. It is significant, however, that the Board recommended that the parties confer and negotiate a mutually satisfactory settlement of the dispute which was before it.
Accordingly, Awards following the observations of this Emergency Board, quoted in Award 685, supra, are in error in awarding "penalties" not expressly provided for in the Agreements. Our jurisdiction is limited to interpreting Agreements as written by the parties.
As stated by Referee Boyd in Award 5186-"It is also well established by the precedents of previous awards that the Board will not impose a penalty where none has been specified in the Agreement.
LABOR MEMBER'S ANSWER TO CARRIER MEMBERS' REPLY TO
LABOR MEMBER'S ANSWER TO CARRIER MEMBERS' DISSENT TO
AWARD NO. 9546, DOCKET NO. CL-9218
It is interesting to note that the Dissenters have receded from their original position that an employe is only entitled to be made "whole" and the Board lacks authority to assess "fines or penalties" in citing, with approval, Award 3271, which held that the penalty rate for work lost is the rate the regular employe would have received had he performed the work. That is what the Board did here when it awarded "a day's pay at the rate of pay of Station Clerk Job No. 5 for November 14, 1955 and continuing, for each date of violation," i.e., for each day the agreement was violated when work was removed from the Clerks' Agreement and transferred to another craft or class of employes.
Carrier Members' position on this subject has been inconsistent every time the question comes up. When the record shows that the Board should award the time and one-half rate in order to make the employe "whole," they take the position that the "penalty" for work not performed is the pro rata rate. Where an employes' individual rights to promotion have been violated, they contend that he should only be paid the difference between the rates of the position held and the one sought, as this is all that is necessary to make him "whole". Where, on the other hand, the claim is for a pro rata day's pay 9546-23 1·)3
for the removal of a position from the scope of the agreement, as here, thdy take the untenable position that the Claimant should be made "whole" (provided he lost no time) and that the Board has no authority to assess "a penalty or fine". They either are suffering from a misunderstanding of the controlling principles on the subject, or they are deliberately attempting to confuse the issue and thereby allow Carriers to escape their obligations to make reparations for violations of agreements.
It is clear that the principles involved are the awarding of damages for a violation of the agreement. The Agreement provides the rate of pay and measure of damages in all cases. The Boards' purpose of awarding such damages is twofold: First, the employes, either individually or collectively, should be made "whole" by being compensated the exact amount lost by virtue of the violation, and second, the Carrier should be "penalized for the violation by the awarding of damages and thereby maintain the sanctity of the Agreement by discouraging violations. It would follow that the awarding of damages by the Board, in order to carry out these two avowed purposes, cannot be considered "penalties or fines" as contended by the Dissenters. The Awards upon which they rely in their "Reply" to my "Answer" clearly refutes the position they originally took in their "Dissent".
Award 1524 recognized that one of the purposes of this Board was to remove causes of stress and upon finding a violation of the agreement, awarded damages. A denial of reparations or compensation for an established violation of an agreement would not remove "causes of stress". The burden is upon the Carrier to police and apply the agreement in the first instance. Awards 3590, 4468, 5057, 5266, 5269, 6267. The Organizations only recourse is to file claim for the violation. Awards 4461 and 6324.
It will be noted that this principle was recognized by Referee Boyd in Award 5186, cited by Carrier on page 2 of its "Reply". It should also be observed that the collective bargaining agreement is between the Petitioning Organization and Respondent Carrier and not between the individual Claimant and the Carrier. For that reason, the Organization and Carrier are the contracting parties, and the Organization is the proper party to assert a claim for its violation on behalf of any employe it represents. In such cases, the Board has repeatedly held that it is no concern of Carrier whom the Organization names as Claimant. See Awards 4022, 5266, 6324, among many others.
The following principles have been established by the Board as to its authority to assess damages and/or wage losses in the nature of penalties for violations of agreements:
1. Experience has shown that if rules are to effective there must be adequate penalties for violations. The sanctity of the agreements must be maintained. 9546-24 12.E
"* * * The only question arises whether Gardner who did not, in fact, do the work, is nevertheless entitled to be paid therefor, and on an overtime basis of pay, * * * . If we are to allow the claim it must be done on the basis that the Carrier should be penalized for its violation of the Agreement, regardless of the fact that the result thereof would operate to compensate Gardner for work he did not perform, and on an overtime basis of pay. To impose this penalty may, in the circumstances, seem harsh; but Agreements are made to be kept and the imposition of penalties to attain that end, and to discourage violations, are justified. As we view the matter, less barm will result to the principles of collective bargaining by imposing the penalty than from ignoring the violation and refusing to impose the penalty. * ' * (Emphasis ours)
"The penalty rate for work lost because it was given to one not entitled to it under the Agreement, is the rate which the occupant of the regular position to whom it belonged would have received if he had performed the work. Awards 3193 and 3271. If Claimant had been permitted to perform the work he would have received time and one-half for the Sunday work and time and one-half for the overtime work on Monday. The latter for the reason that the Monday work on the platform commenced at 7:30 A.M. and terminated at 8:00 P.M. If the employes entitled to the work had performed it, they, too, would have been entitled to two and one-half hours at the over-time rate. Consequently, the claim for two and one-half hours at the overtime rate on Monday is properly sustainable."
"It may be that between W. H. Rodeback and other Storehelphers Rodeback was not entitled to present this claim, but the claim made by the Petitioner is for a violation of the Agreement. The claim on behalf of W. H. Rodeback is merely an incident. These facts do not relieve the Carrier of the obligation to pay the penalty. The Petitioner has elected to make the claim in his name. 'The others are making no claim; and if they should the Carrier would not be required to pay more than once.' Award No. 1646. See also Award No. 2282.
Should the penalties be on a pro rata basis or should the penalties be for time and one-half for the work that was performed by employes outside of the agreement? The Carrier contends that it was not required to postpone the work until after the employes had completed their tour of duty so that the employes covered by the Clerks' Agree ment could perform this work. We agree with the Carrier as to this fact; nevertheless, if the employes had performed this work when it came up, the regular work of these employes would have had to be postponed and then done on an overtime basis:
"To accept the Carrier's justification for what is clearly a violation would mean that agreements are to be disregarded when, under stress of conditions it is more convenient to do so. That we cannot do. Award No. 2506. 9546-2 7 127
The claims here before us are in the nature of penalties against the Carrier for having violated the agreement. Under these circumstances these claims could be made in the name of any employe the Petitioner elected, provided the claims did not make any additional penalty on the Carrier. It would only have to pay the penalty once. Awards Nos. 1646 and 2282.
After a review of many awards of this Board as to the correct penalty to be assessed for a contract violation, we have concluded that the correct rule is stated in Award No. 3277 in the following language:
Applying this rule to the facts in these claims, it follows that the penalties should be assessed at time and one-half for the time lost." (Emphasis ours)
"The Carrier makes the further contention that the Claimant was junior in service to W. H. Nelson who was working the second shift had indicated that he did not wish to `double on two shifts except on and was available for the work, and further states that the Claimant infrequent occasions'. However, the fact remains that neither he nor Nelson were 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 the employe, as it is only incident to the violation of the Agreement. See Awards Nos. 1646 and 2282.
Under Awards 3193 and 3271, this claim cannot be allowed in full as it is a penalty payment. The rule is that the Claimant will be allowed `the rate which the employe to whom it was regularly assigned would receive if he had performed the work'. The regular occupant of the position had Sunday as his assigned day of rest. Had he worked on any Sunday, he would have received the rate of time and one-half. The same is true as to holidays specified in Rule 41. The Claimant therefore is entitled to the overtime rate for Sundays and holidays, the straight time rate of $7.88 for week days named in the Employes' Statement of Facts, which is in addition to what he has received on his own position." (Emphasis ours)
"In the light of some of the decisions of this Board the third contention of the Carrier (that no wage loss has been established by reason of the violation of the Agreement) might have offered some difficulty but for the decision of this Board in Award No. 3251. In all essential features the dispute in that case is indistinguishable from the issue in this. The contention there, as here, was that no wage loss had been established in behalf of any particular men covered by the Agreement.
"Until the carrier properly assigned someone to perform this work it belonged to these claimants and, if necessary, on an overtime basis, as was done during the period from November 1 to November 24, 1945.
The question arises as to whether the claim should be allowed on a pro-rata or overtime basis. We have examined the awards of this division and have come to the conclusion that the facts here bring it within the principle stated in Award 3277 and approved in 3371 and 3375 and that it should be allowed as overtime, that is, time and onehalf."
"The claim will be sustained but we do not think that the claimant is entitled to have the time and one-half rate allowed. Precedents of this Division are to the effect that the penalty for work lost is the rate which the employe to whom it was regularly assigned would have received if he had performed the work. The regular occupant of this position would have received the pro rata rate. The claim will be sustained at the pro rata rate." (Emphasis ours)
"Since Claimant was entitled to perform the service on the day the position was blanked, and since the regular rate due him under the agreement for that particular day, which was his relief day, was at the rate of time and one-half time, he is entitled to recover at that rate. In Award 3744 this Division again reaffirmed the principle: 'The penalty rate for work lost because it was given to one not entitled to it under the agreement is the rate which the occupant of the regular position to whom it belonged would have received if he had performed the work,' which principle had been heretofore announced in Awards 3277, 3371, and 3375. Had Claimant performed the work on the day in question, he would have received the time and one-half time rate.
Accordingly, the claim must be sustained at the time and one-half time rate." 9546-29 129
"This is a pure penalty case. The claimant does not claim that he was deprived of work. The complaint is that the Carrier violated the Agreement and should be penalized therefore. We discuss this question at some length in Award No. 2282, written for the Board by this Referee, and it does not seem necessary to repeat or elaborate what was then said. Of the utmost importance is strict adherence to Agreements made in the processes of collective bargaining; and if inflicting an occasional penalty is necessary to impress this fact on parties to Agreements, the interests of all concerned are well served."
"Carrier also claims that Shaw is not the proper claimant since he neither worked nor was assigned to work on the day in question, nor was it his position which was blanked. It was Bissenden's position which was blanked. But Carrier did not call Bissenden. No doubt Bissenden had first call for the work on that Sunday, but he has made no claim, and since Shaw has made the claim, Bissenden is now precluded from doing so. Carrier would not be required to pay more than once. This Division has ruled that the fact, the claim presented might have been made by another who had a prior right to make it is of no proper concern of the Carrier. The essence of the claim is for the violation of the Agreement and the relief sought is more for the exaction of a penalty for such violation, rather than for reimbursement of a particular employe. In line with this reasoning this Division has pointed out the identity of the claimant is ordinarily incidental where the chief purpose is to impose a penalty. See Awards 1646, 2282, 3376. Therefore, since Bissenden failed to assert the claim, Shaw is a proper claimant.
Inasmuch as the position was a seven-day position, time and onehalf is the regular rate for a regularly assigned incumbent who fills the position on his relief day. Therefore, had Claimant been assigned to fill the position on that Sunday he would have received time and one-half as his regular rate for working on his relief day. See Award 3814.
Accordingly the claim must be sustained and for the penalty rate." (Emphasis ours)
"° " *. We have many times held that the penalty for violation of the Agreement is the important thing; that the claim on behalf of a particular individual is merely an incident which is of no concern of the Carrier. See Awards 1646, 2282 and 3376."
"Neither is it necessary to labor an additional contention that the two other employes in Watt's wheel were senior to him in point of service. The essence of the instant claim is to impose a penalty for a violation of the contract. Under such circumstances this Division has consistently held a claim can be made in the name of any employe the Brotherhood elects and that regardless of rights of the employes as between themselves the cause can be maintained, but the Carrier 9546-30 1
Even though Watts was entitled to the overtime in question it does not follow he is entitled to pay at the overtime rate. If Cliff had worked his position he would have been entitled to straight time only. Under our Awards the penalty rate for work lost because it was given to some one not entitled to it is the rate the regular occupant of the position would have received had he worked his position (Awards 3814 and 4037, and Awards there cited)." (Emphasis ours)
"* * * In connection with the claim as made in behalf of Mrs. Betty Howenstein, this Board has often held that the penalty for a violation of an agreement is the important factor so the agreement will be enforced and that the claim on behalf of a particular employe is merely an incident which is of no concern to the Carrier. See Awards 2282, 3890, 4022, and 4370 of this Division."
"Carrier says there were no extra or furloughed men available and as Claimant did not report on the job or have a telephone available whereby he could have been called he was not available to per- 9546-31 131
form the work. There is no evidence that Carrier ever attempted to get in touch with Claimant. Even so, this Division has often held that the penalty for the violation of an agreement is the important thing in order that the provisions thereof be kept and violations thereof discouraged and that the claim on behalf of an individual is merely an incident which is of no concern to the Carrier. See Awards 1646, 2277, 2282, 2346, 3890, 4022, 4103, and 4390 of this Division.
However, under our awards the penalty rate for work lost because it was given to someone not entitled to it is the rate that the regular occupant of the position would have received had he worked his position. See Awards 3049, 3193, 3271, 3376, 3745, 3770, 4103, 4244, and 4467 of this Division. In this case that would have been the regular rate of the position." (Emphasis ours)
"The Organization claims pay at the premium rate. We have consistently held that the penalty rate for work lost because it was given to one not entitled to it under the agreement is the rate which the regular occupant of the position would have received if he had performed the work. Award No. 4552. The awards cited by the Organization are not inconsistent since premium pay was awarded therein upon the same principle. Awards 3371 and 3375. Examination of our awards upon the subject show that we have adopted the theory of payment of a penalty by the Carrier for its violation of the agreement instead of the theory of compensation to the Claimant for his loss if he had worked, except in cases where an agreement of the parties provides for compensation for wage loss under such circumstances. In view of our consistent decisions thereon we do not feel that we should now attempt to lay down a different rule."
"* * *. The claim for time and one-half is proper since only Sunday and Holiday work is involved and whoever performed it would receive such premium rate for such days. The penalty rate for work improperly assigned is the rate which the occupant of the regular position to which it belonged would have received if he had performed it."
"The Carrier argues the instant claim cannot be upheld because Gardner was not available during the entire period of the assigned position worked by Maus. Assuming without deciding the point it is entitled to little weight. Under repeated decisions of this Division of the Board we have held that the question whether there has been a violation of the contract is the important thing and that the claim of of a particular individual is of no concern to the Carrier since it cannot be required to pay but one claim (Awards 1646, 2282, 3376).
* * In any event, under what are now established precedents of this Division the penalty rate for work lost because it was given to someone not entitled to it is the rate the regular occupant of the 9546-32 1.32
form any work. The penalty rate for work lost because it was given to one not entitled to it under the Agreement is the rate which the occupant of the regular position would have received, if he had performed the work. Here, the regularly assigned employe would have received the pro rata rate had he worked on Wednesday, December 7, 1949. Accordingly, that is the proper penalty." (Emphasis ours)
"' * * The record makes it crystal clear the Carrier's action violated other rules of the current Agreement in at least three particulars, namely, by failing to bulletin the new position, by changing Smith's starting time and by shifting him from his regularly assigned position. Any one of these violations suffices to sustain a penalty award and to deny this claim, restricting our decision, as we would have to do, to the single ground the employe named therein had failed to show he was personally entitled to the work, whether it be for lack of proper qualifications or for some other reason, would only lead to a multiplicity of claims and additional expense to the parties. Moreover, recognizing its primary function is to settle disputes involving fundamental differences between the parties to an Agreement, this Board has held many times that the claim on behalf of a particular individual is merely an incident which is of no concern to the Carrier where as here-no claim is made on behalf of any other employe and the allowance of the claim as filed will preclude another claim for the same work. We think the instant case is one in which the foregoing principles should be applied. Therefore, we hold the claim should be sustained as a penalty for violation of the rules of the current Agreement but that reparation should be limited to the pro rata rate under a well established principle (see Award Nos. 3955 and 4963)." (Emphasis ours)
he had performed the work. See Awards 4467, 5117, 5240, 5444, 5548, 5607 and 5721 of this Division. ' " *:'
"The established rule, as we have heretofore indicated, and we should add the one to which we are disposed to adhere in the absence of special or extraordinary circumstances making it inapplicable, is that the penalty rate for work lost because it was improperly given to one not entitled to it under a collective bargaining Agreement is the rate which the employe to whom it was regularly assigned would receive if he had performed it. Illustrating the general principle see our Awards 3193, 4467, 5437, 5444, 5721 and 5831. "
Boiled down, we are inclined to believe that in the argument advanced here the Claimant is not presenting anything new or extraordinary as creating an exception to the rule but is simply seeking to reargue what has been already established by our Awards in the hope of modifying its force and effect. If not it has certainly ignored or unintentionally overlooked what we think is the short, simple, and overall answer to the Claim. That answer is that Bower, the holder of the Swing Position, who was absent and unavailable to fill the duties of his assigned position, not the Claimant, was the employe to whom the work in question was regularly assigned. If he had been available and performed it he would have done so at the pro rata rate. That under Award 3193, supra, and the others to which we have referred, means the penalty recoverable by Abell, who was neither notified nor called and did not perform the work, is likewise the pro rata rate." (Emphasis ours.)
" * * * The essence of this Claim that its action resulted in a violation of the Agreement, hence it makes little difference who brings the claim to the Board. Claimant or some other employe was entitled to do so and the Carrier cannot be again subjected to a penalty for the same violation of the Agreement."
"Carrier contends that the claim should be disallowed because none of the claimants lost any time as a result of this company doing the work. This claim is primarily to enforce the scope of the agreement and not for work performed. If the scope has been violated then a penalty is imposed to the extent of the work lost. This is done to maintain the integrity of the agreement. As to who gets the penalty, that is but an incident to the claim itself and not a matter in which the carrier is concerned for if the agreement is violated, it must pay the penalty therefor in any event." (Emphasis ours)
"The fact that Price has failed to file his claim and abandoned it, does not keep the Claimant Handorf, from filing a claim for the violation. The Carrier would have to pay for the violation only once."
Considering when Carrier had this work performed, the provisions of Rule 15(a) of the parties' Agreement, the occupant of the regular position to whom it belonged would have received overtime had he performed the work. Consequently the claim is properly made for time and one-half." (Emphasis ours)
The claim before us is in the nature of a penalty against the Carrier for having violated the Agreement. The Carrier relies upon a number of decisions of the First Division of the Nation Railroad Adjustment Board to the effect that where claimant was otherwise employed on the the day, or days, in question, he was not available for the services in question and not entitled to an Award. The Employes 9546-36 136
"The Carrier urges that in the event Claimants are entitled to an Award that compensation should be limited to the pro rata rate, and cites many cases to that effect. The Employes likewise cite cases to the effect that time and one-half is the proper rate of pay except where a day other than Sunday or a Holiday is assigned as the rest day. It is our opinion that an employe denied work is entitled to the rate of pay he would have received had he performed the service denied him." (Emphasis ours)
"As stated in Award 5795: `The essence of the claims made by the Organization is for a violation of the rules * * *. The claims for the penalty on behalf of the individuals named are merely incident thereto.' See Award 1646."
The argument is that the violations of the Agreement are trivial and insignificant. We tread on dangerous ground if we remit penalties based upon our notions of triviality or insignificance (See Award 1611) particularly where, as here, the violations occurred on the heels of Award 5195." (Emphasis ours)
"The Carrier asserts that the pro rata rate only constitutes the measure of claimants' loss. We point out that the rate of pay for work performed on specified holidays is time and one-half, Rule 4-A-2, current Agreement. The contract value of holiday work lost is time and one-half. In effect, the regular rate for holiday work is time and one-half. It does not involve the claim for an unearned penalty as in the case of a claim for time and one-half for overtime lost. We conclude that the claim should be sustained at the time and one-half rate." (Emphasis ours)
"The Respondent asserts that even though a violation exists Claimants here are not entitled to reparations because no time was lost. The confronting claim was brought, in the main, to enforce the scope rule of the Agreement. In finding that the work was encompassed by the scope rule, reparations are justified. Otherwise the sanctity of the agreement cannot be maintained and violation thereof discouraged." (Emphasis ours)
Other Awards holding that a penalty was justified are: Awards 3049, 3193, 3271, 3745, 3910, 3913, 3955, 4196, 4244, 4534, 4667, 4728, 4815, 4883, 5117, 5236, 5266, 5269, 5271, 5333, 5764, 5929, 5930, 5921, 5923, 5923, 5939, 5943, 5930, 5978, 6158, 6160, 6157, 6358, 6444, 6630, 7062, 7100, 7242 among others. In these, as well as the other awards contained in this "Answer", no wage loss was shown; Carrier Members making the same contentions that it has been making since the Board was created. Carrier Members' argument is therefore not new or novel and has been rejected consistently.
The Dissenters cannot evade the full force and effect of the above authorities by picking five awards and through carefully selected phrases taken therefrom and adroit placement of emphasis find support for the untenable conclusion reached in the last paragrph, page 1, of their "Reply".
Award 5186 (Boyd) clearly adopts the well established principle governing the determination of the subject under consideration. Award 5306 (Wyckoff) involved an individual employes' seniority rights to a certain position. No collective rights were violated in that instance, such as that confronting us here. Award 5306 must be interpreted in accordance with the factors there involved.
The principle established by Award 685 has been reaffirmed many times by this Division and now constitutes a controlling precedent.
CARRIER MEMBERS' REPLY TO LABOR MEMBER'S CURRENT
EFFUSION IN CONNECTION WITH AWARD NO. 9546,
DOCKET NO. CL-9218
Labor Member's Anwser, supra, is but a tedious attempt to justify the awarding to claimants of something not provided for by the agreement between the parties. Prolixity, however, cannot change this Board's jurisdiction which is limited by the Railway Labor Act, as amended, to interpreting and not writing agreements for the parties.