Claim sustained.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary

CARRIER MEMBERS' DISSENT TO AWARD 14948,

DOCKET TE-12372

(1) This Board did not have jurisdiction to make the Award.

(2) The Award ignores the vital interest and right of the Clerks' Union, which is also a party to the contract. It takes away from the clerks work which they have always done and gives it to the telegraphers contrary to the express language of the agreement, and without hearing the Clerks' Union, contrary to Transportation Communication Workers v. UNION PACIFIC RAILROAD COMPANY, 35 Law Week 4030, not officially reported.

(3) The decision runs contrary to consistent authority from this Board that no part of any agreement is to be considered "deadwood," but that all parts must be given meaning.

(4) The decision is contrary to the great preponderance of authority of this Board in similar cases.

(5) The decision reveals a basic and material misunderstanding of the facts in the case.

(6) The error is one which is far from harmless, in that the decision as it stands would entail payment of many thousands of dollars to individuals, some of whom are not identified, and none of whom are shown to have been damaged.

(7) The decision fails to recognize the law of the land with respect to damages.

(1) This Board Did Not Have Jurisdiction To, Make The Award.

to a Special Board of Adjustment. It so notified this Board, and correctly put us on notice that the case was no longer pending before us. In spite of this, the five Labor Members and the Referee erroneously and illegally adopted this Award.

(2) The Award Ignores The Vital Interest And Right Of The Clerks' Union, Which Is Also A Party To The Contract. It Takes Away From The Clerks' Work Which They Have Always Done And Gives It To The Telegraphers Contrary To The Express Language Of The Agreement, And Without Hearing The Clerks' Union, Contrary To TCW v. UNION PACIFIC, 35, LW 4030.

In the third from last paragraph, the Opinion espouses a correct principle -that specific terms of an agreement take precedence over general terms. For some reason, the specific terms of the July 27, 1953 Agreement have been treated as general, and vice versa. Agreements are so constructed, and rightly so, that the early paragraphs set forth the generalization, after which follow the specifics, such as exceptions and/or other special provisions. Such is precisely the case in the subject agreement. After the words "IT IS AGREED:" there follow two paragraphs, (a) and (b), which set forth broad and general terms. Paraphrasing them, they provide that telegraphers will do what they had been doing, and clerks will do what they had been doing. Had that been all the agreement was designed to provide, it would have ended there. However, there were some specific provisions added to modify, or serve as exceptions to the general terms. Paragraph (c) starts off with the word "except." If the majority had correctly applied the very principle they espoused, they would have been compelled to give precedence to that specific language in Paragraph (c) which reads:

"- x ", but may be connected to reperforators within the same city or terminal for transmission by telegraphers."

The word "but," in itself, implies an exception, and then follows an exception which permits the Carrier to do exactly what it did in the instant case. That this is what the Carrier did is shown throughout its submission and rebuttal, and is fully and properly recognized by the majority as is evidenced by that part of the second paragraph of the Opinion reading:

"Teletype machines were placed in operation in the Service Bureau on October 19, 1959. They replaced the typewriters. They were connected to a reperforating machine in the Communications Department." (Emphasis ours.)

The record shows that the Service Bureau and the Communications Department are not only in the same "city or terminal," but are in the same building, only two floors apart. Thus when that portion of Paragraph (c) quoted above is matched with the emphasized portion of the Opinion last quoted, they fit "hand in glove." The Carrier did just what the Agreement calls for, it acted in strict compliance therewith.

Even though Paragraph (c) alone completely absolves the Carrier of any violation, note the further specific provisions of Paragraph (d), the pertinent part of which reads:

"When such types of work now being otherwise performed are traditionally of the craft of Clerks and are compiled on printer telegraph machines (teletypes) and simultaneously transmitted to intracity or intro-terminal points, or reperforated for transmission to other cities and/or terminals, such work will he performed by em. ployes represented by the Clerks." (Emphasis ours.)

The Opinion correctly states that at the time the agreement was made the work of compiling the subject data was "now being otherwise performed," when it points out in the first and second paragraphs:

"Prior to October 19, 1959 a clerk in the Service Bureau typed in duplicate a report of cars * * *.

Teletype machines were placed in operation in the Service Bureau on October 19, 1959. They replaced the typewriters. They were connected to a reperforating machine in the Communications Department. Effective on that date, a clerk typed the report on the teletype machine in the Service Bureau. That teletype machine simultaneously caused the same message to be reproduced on a perforated tape by a reperforating machine in the Communications Department."

Once again, compare what the Opinion correctly states happened, with the language above quoted from Paragraph (d) and it is crystal clear that the Carrier did not only what the agreement says it may do, but also what it must do.

The clerk formerly compiled the data on a typewriter; then a teletype was substituted for the typewriter, and the same data was typed on the teletype and it was "simultaneously transmitted to intro-city or intro-terminal (actually intro-building) point(s)" and "reperforated for transmission to other cities." Therefore, the contract requires "such work will be performed by employes represented by clerks."

Here, the Carrier did only what the agreement said it must do. Petitioner should not be allowed to exact a penalty of some $40,000.00 or more from the Carrier, and take work from the clerks who are also protected by the same agreement, when the Carrier complied with the agreement. In fact, and as shown above, the Board's Opinion says the Carrier did exactly what the agreement says it may and must do.

(3) The Decision Runs Contrary To Consistent Authority From This Board That No Part Of Any Agreement Is To Be Considered "Deadwood," But That All Parts Must Be Given Meaning.

Cardinal rules of contract interpretation, recognized by this Board since its creation, dictate that any contract must be considered "from its four corners" See Awards 6856, 8571, 9447, 10166, 10785, 12648, 14415 and others.

It must be assumed that agreements are written by reasonable men, of reasonable intelligence, and reasonably qualified to perform the task in which engaged. This, in itself, negates any idea what "deadwood" or meaningless

words or phrases would be incorporated into a contract. The Board has many times stated this principle, and it is a sound principle of law. The principle is well stated in Selections from Williston on Contracts:

"The writing will be read as a whole, and every part will be interpreted with reference to the whole; and if possible it will be so interpreted as to give effect to its general purpose." (Section 618.)

In applying this principle, it must be remembered that the clerks were present at the negotiation of the 1953 agreement, and they are signatory thereto. The Carrier is required to honor the portions of the agreement favorable to the clerks-not just the parts favorable to the telegraphers. Each of the three parties had their interests to protect, for which reason it is very important to give all parts of the agreement full meaning. Again to quote Williston:

"The court will if possible give effect to all parts of the instrument and an interpretation which gives reasonable meaning to all its provisions will be preferred to one which leaves a portion of the writing useless or inexplicable; and if this is impossible an interpretation which gives effect to the main apparent purpose of the contract will be favored." (Section 619.)

The fact that the agreement before us is a tripartite agreement, between the Carrier, the Telegraphers and the Clerks, leaves no doubt about "the main apparent purpose of the contract," nor about the interpretation to be "favored."

Paragraphs (c) and (d) must be given their intended and obvious meaning. When this is done, the Carrier not only stands innocent, but in the position of having done exactly what it was required to do.

(4) The Decision Is Contrary To The Great Preponderance Of Authority Of This Board In Similar Cases.

Our Awards 3051, 8656, 9005, 9913, 10531, 11097, 11742, 12235, and 14692, as well as the precedent cited therein, show that the Carrier would not have been in violation of basic principles regarding intra-city communications, even if it had not had the added insurance afforded by Paragraphs (c) and (d) of the 1953 Agreement. Also see Award 24, SBA 269. Certainly, the Carrier should not be penalized for "abundance of caution." If Paragraphs (c) and (d) are not regarded as abundance of caution, they can then fall in but one category -exceptions and/or specific provisions superior to the general provisions of Paragraphs (a) and (b).

(5) The Decision Reveals A Basic And Material Misunderstanding Of The Facts In The Case.

In the second paragraph of Page 2 of the Opinion, we find the following:

"The primary function of the teletype machine in the Service Bureau was to reproduce the message on perforated tape on a reperforating machine in the Communications Department. Typing the message was only an incidental part of the function.'."

That statement is the exact opposite of the true facts. The Opinion elsewhere correctly recognizes that the primary function was the typing of the reports which are used, as always, for many purposes, and in various depart ments-especially in the general office building where they are compiled. In the second paragraph, the Opinion correctly states:

"They (teletype machines) replaced the typewriter ."

Prior to installation of the teletype, clerks typed the reports. Subsequent to installation of the teletype, the clerks still type the reports. This shows what the primary function is-typing the report. It is the automatic and simultaneous punching of the tape by use of the reperforator which is the incidental part of the function, and this incidental function was done exactly as Paragraphs (c) and (d) of the agreement say it may (c), and must (d), be done.

Another misunderstanding of the facts is shown in the statement in the second paragraph of Page 2 reading:

"Previously, Telegraphers only traditionally and customarily operated tape perforating machines."

That statement is erroneous and is contrary to the record, but even if it were true with respect to operation prior to the 1953 Agreement, it is a positive and undeniable fact that said agreements, Paragraphs (c), and (d), both permitted and dictated that clerks would do the work thereafter under the circumstances involved in this case.

The last sentence of the second paragraph of Page 2 reads as follows:

"Operating a machine which reperforates a message on a tape and at the same time types it on paper is not work which belongs to clerks, but to Telegraphers under the July 27, 1953 Agreement."

Read Paragraphs (c) and (d) of the agreement, especially those positions quoted and emphasized herein, and it will be crystal clear that exactly the opposite is true.

The comments made thus far herein will prove the entire third paragraph of Page 2 of the Opinion is contrary to fact. Telegraphers certainly are assigned to each and every detail of the communication work. No one other than a telegrapher sends any communication outside the office building. Furthermore, the Carrier positively is not in error in saying that telegraphers do not have exclusive right to perforate tape . See the penultimate paragraph of Carrier's letter of May 24, 1957, ORT Exhibit No. 2, which, for ready reference, reads as follows:

"Clerks are performing this kind of service on teletype machines at numerous locations and have been doing so for a long time. It is work definitely allocated to them by the Mediation Agreement."

That statement stands unrefuted, as does Carrier's statement on Page 3 of its Ex Porte Submission reading:

"Printer telegraph machines have been in use on this property since the year 1927, during which time they have been operated by both clerks and telegraphers."

Those and other unrefuted statements by the Carrier constitute abundant proof. However, in addition to Carrier's statements, petitioner admits that clerks have always done such work. See Page 9 of their Ex Parte Submission, at which point they state:

"Clerks in Dupo and other points in the Terminal area have prepared tapes for messages and reports when such were destined to terminal points only, and clerks have prepared tapes for `wheel reports' for terminal destination as well as for points beyond the terminal."

Their admission stands, and their attempt to "water it down" fails for the very obvious reason that so is the work here involved subject to performance by clerks under the 1953 Agreement.

The third from last paragraph of the Opinion has been discussed earlier herein under Part 2. The correct principle is stated, but as has been clearly shown, it was applied in reverse.

The penultimate paragraph of the Opinion mentions only one Award, and then distinguishes it from the instant case by reference to the "special agreement." We have shown, and unmistakably soy that the "special agreement" is added insurance-not a liability.

The last paragraph of the Opinion, as has been shown herein, is positively in error. See, again, Paragraphs (c) and (d) of the 1953 Agreement.

(6) The Error Is One Which Is Far From Harmless, In That The Decision As It Stands Would Entail Payment Of Many Thousands Of Dollars To Individuals, Some Of Whom Are Unidentified, And None Of Whom Have Been Shown To Have Been Damaged.

Although the Carrier acted at all times strictly in accordance with the agreement, it is now placed in the position of having some $40,000.00 drained from its treasury-money which it does not owe to anyone. There is no evidence that any telegrapher has been displaced. Every job previously filled by telegraphers is still in existence.

(7) The Decision Fails To Recognize The Law Of The Land With

Respect To Damages.

This reference to damages is made strictly without prejudice to our contention that the Award is invalid for the reasons stated above.

Petitioner has not shown that anyone was damaged, even if the agreement had been violated. Damages for breach of contract are measured by the actual loss caused by the breach. The laws of the land militate against any other payment not specifically provided by law or the contract itself. See Awards 12965, 13082, 13154, 13171, 13200, 13221, and 13477, among many others.

Damages are separate from the substantive aspects of the claim and must be proven as an independent element. The party pleading damages has the burden of proof, Award 14853. No loss has been demonstrated by what occurred here. Furthermore, Petitioner has failed to show that the work in dispute could not have been performed by employes on duty and under pay thus obviating a need for calling any additional employe. See Awards 4055, 6887, 8198, 9217, 9824, 10164, 12907, and 14112, culled from many.

For the reasons outlined, the award of damages in this docket is tantamount to a penalty. It has been consistently held that the Board is without authority to award any penalties in the absence of a provision for punitive damages in the collective bargaining contract. Brotherhood of Railroad Trainmen v. Denver & Rio Grande Western Railroad Co., 338 F. 2d 407, cert. den. 85 S. Ct. 1330; Brotherhood of Railroad Signalmen v. Southern Rwy., U. S. District Court for Middle District, North Carolina-No. C-9-G-65, not officially reported. Also see our Awards 12962, 13236, 13676, 13958, 14371, 14693, 14853, 14920 and 15062 and others.

In conclusion, the award is void because the Board lacked jurisdiction under Public Law 89-456. Also the Board failed to determine the rights of the clerks who were parties to the contract after having recognized that they were involved by giving the notice required by statute.

This claim has no support under the facts, agreement provisions, practices or precedent. The Special Tripartite Agreement expressly permits the change here in dispute and the distribution of work pursuant thereto.

T. F. Strunck