MR. CLARK: (Jesse Clark, Employes' Arbitrator and Grand President of the Brotherhood of Railway Signalmen) Mr. Crawford, there is no penalty provided in Article 8, Section 10 for the Carrier's failure to comply with it, as pointed out by Mr. Cone, is there?

THE WITNESS: There is no penalty in the schedule, no sir." (Emphasis ours.)

As in the case of the rule appearing on the Pennsylvania Railroad in Award 7847, there was no penalty contemplated by the parties to Rule 58 of the contract on this property. The claim in Award 7847 was denied.

SUMMARY

There has been no violation of the contract with the Brotherhood of Railroad Signalmen in this case.

Carrier asserts that the claim at both parts (a) and (b) are without merit. The Carrier petitions this Division to deny this claim in its entirety.

OPINION OF BOARD: The record supports Petitioner's claim that Carrier failed to "make available" drinking water and water suitable for domestic use at Maintainer's headquarters at Athens, Ohio, within the meaning of Rule 58 of the Agreement.

Water was made available on April 9, 1959, within a distance of 12 feet from the headquarters, Carrier thereby coming into compliance on that date. Therefore violation in this respect existed for the period August 25, 1958 to April 9, 1959.

It is further claimed that Carrier also violated that portion of Rule 58 which provides that ". . . toilets shall be accessible."

We are of the opinion that the language chosen by the parties in respect to toilet facility requirements compels assurance of certainty of usability at a point within reasonably close proximity and convenience from the headquarters structure.

In its submission, Carrier refers to a toilet located within 525 feet of the headquarters building of the Signal Maintainer and 311/, feet from the center line of the closest track.

Petitioner states concerning the alleged location of such a facility: (1) No reference to it was made in the discussions on the property and therefore this may not now be considered as any part of the Carrier's position before this Board, and (2) investigation of these alleged facilities made by Petitioner disclosed that the toilet referred to was locked with a special car lock which could be opened only by a Car Repairman; therefore the place was not accessible to Signal Maintainer.

An examination of correspondence appearing in the record, of Memorandum of Conference between the parties held on November 14, 1958 and of "Joint Statement of Agreed Upon Facts" contained therein, as well as comparison of dates of correspondence and of the initiation of action before this Board, shows that the Petitioner's position is well-taken concerning inadmissibility of a claimed location of toilet facility approximately 525 feet from Maintainer's headquarters, Carrier's position up to January 7, 1960, the date

on which Petitioner served notice of claim on this Board, is shown to have been that:

(a) Water but not toilet facilities were available in Freight Station located 1,250 feet east of headquarters, and

(b) toilet and water facilities were available in passenger station located 1,800 feet east of headquarters.

Umler these circumstances, the facts before us are those recited in (a) and (b) of the foregoing and our determination must be made in response to positions based on said facts only.

Our conclusions are that Rule 58 was here violated both in respect to water availability and toilet accessibility. There is no showing in the record that the lack of toilet facility was remedied as of any particular date-as in the case of the water facility.

As to appropriate redress, the following considerations arise:

1. The Agreement does not provide for penal levies for violations of this kind.

2. We are persuaded that tangible injury of a kind generally translatable into dollars and cents values was inflicted on Claimant by the violations which here occurred.

3. It is not now reasonably possible to compute such damages in precise quantitative terms of cause degree and loss effect.

4. A determination is justified and called for which would constitute an "appropriate finding of damages" (See Award 5186) to remedy the effect on the Claimant of lack of compliance.

On the basis of the foregoing considerations we deem appropriate compensation to be 15 minutes pay at regular time rates for all working days during the period of August 25, 19-58 to April 9, 1959 and an additional amount equal to 10 minutes pay at regular time rates for all working days from the period April 10, 1959 to such date as the Carrier continued in violation by not making toilets accessible.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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 the Agreement was violated in respect to failure to make available water facilities at Maintainer's headquarters at Athens, Ohio for the period of August 25, 1958 to April 9, 1959 and also in respect to failure to make

AWARD