Following the above exchange of correspondence, the dispute was appealed to the Third Division, NRAB, and to the Disputes Committee by the Petitioner's Grand President, C. L. Dennis in two letters dated April 3, 1964, that were addressed to the Board's Executive Secretary, Mr. S. H. Schulty, and Mr. J. F. Griffin, Administrative Secretary, Labor Relations Department, National Railway Labor Conference.

OPINION OF BOARD: The facts involved are substantially identical to the facts considered in Awards 14364 and 14365 (Lynch). Those awards involved the identical parties, and are controlling to the effect that Items (a) and (b) of the instant claim will be sustained.

Item (c) of the instant claim seeks recovery of interest on the amount of the claim at the rate of 60Jo per annum from the dates of the holidays in question, compounded annually on the anniversary of each day under claim. This raises an issue of first impression between the parties.

The exclusive rule under which the instant claim arose (Article III of the existing agreement) provides as follows:

`Section 1. Subject to the qualifying requirements applicable to regularly assigned employes contained in Section 3 hereof, each regularly assigned hourly and daily rated employe shall receive eight hours' pay at the pro rata hourly rate of the position to which assigned for each of the following enumerated holidays . . . .

(Emphasis ours.)

There are cogent arguments which urge us to sustain the claim. Interest, on the current market, is obtainable by any person who possesses the principal sum. Thus, if an employe is denied his wages for a day, he loses not only the wages, but also the interest which such wages would earn.

However, we must not lose sight of the purpose for which this Board was established and the prescribed limits of its jurisdiction. Such jurisdiction is not coextensive with that of a court of law or equity, but confined to the interpretation and application of the collective bargaining agreement under which the claim is conceived. We cannot award claimant that which is not provided for by the express terms of the agreement. Interest pendente lite is not provided for in the Agreement betwen the parties in the instant case, and, therefore, must be denied.

Awards 2675 (Second Division), 6962 (Third Division), 8088 (Third Division), 12989 (First Division), 13098 (First Division), and 13099 (First Division) support, and under the doctrine of stare decisis, control our decision to deny Item (e) of the claim.

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 Carrier violated the Agreement.

AWARD

Item (a) is sustained.

Item (b) is sustained.

Item (c) is denied.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of THIRD DIVISION

ATTEST: S. H. Schulty

Executive Secretary

LABOR MEMBER'S DISSENT TO AWARD 15709,

DOCKET CL-14881

There are many errors in Award 15709, Docket CL-14881, and none of them were corrected by merely deleting the language that "Our review of existing awards which have decided this issue between other parties reveals no instance where interest pendente lite has been granted" from the proposed award. Instead, that action represents an error of omission whereas the deleted language represented an error of law because the Referee was furnished with, and reviewed, Third Division Award 4665 (Connell) and the interpretations of Awards 9578 and 9579 (Johnson) as well as Award No. 3 of Special Board of Adjustment No. 259 (Bailer), all of which granted monetary damages in the form of interest on sums of money belonging to Claimants which the Carriers wrongfully held.

Another error occurred when the Referee wrote that the exclusive rule involved was Article 111, Section 1. Article XIII, Section 14, providing that shortages in pay would be made within seven days after request therefor was made was clearly involved, and amply supported the claim for interest when the shortage in pay was not timely made on demand as promised. Perhaps one should call that error "necessary error", for the Awards relied on as authority, for the most part, were based on a conclusion that no rule supported the claims for interest.

There are other errors also, but the fundamental error, the error responsible for denying Claimant justice and resulting in an inadequate remedy, is the error the Referee committed in construing the Railway Labor Act and the authority (jurisdiction) of this Board as prohibiting him from awarding the just and reasonable compensatory damages prayed for. His conclusion with respect to the Board's jurisdiction is palpably in error. He exceeded his authority by placing such a narrow interpretation on Section 3 First (1) of the Railway Labor Act. He thus evaded his duty to fashion an appropriate remedy by concluding that, because of his limited authority under the RLA, he could not award the reasonable interest prayed for, even though he conceded that Claimant had suffered such damages.

The RLA Section 3 First (v) charged the Board with the responsibility to "adopt such rules as it deems necessary to control proceedings before the respective divisions and not in conflict with the provisions of this section", which section provided that "disputes growing out of grievances or out of the interpretation or application of agreement * * * " will be "adjusted" by this Board. (Emphasis mine.) Most assuredly, for him to have allowed damages which were proven would not have been in conflict with either the RLA, the rules of this Division, or the case law of this Board which has denied any number of compensatory claims because no damages were shown! The Award is also contrary to Award 12838 (Hamilton).

If it was the intent of the Referee to say "I will not", that would correctly reflect only on the Referee; however, when he undertakes to write "We cannot", and succeeds in having such restriction of this Board's authority adopted by the majority, such action reflects badly on the majority.

The evidence and arguments in the case were, as set out in the Opinion, clear and convincing, and the theory of damages has not been abrogated or modified by the RLA or any other statute or rule. Thus neither the case law, the common law, or contract law, prohibited awarding Claimant the compensatory damages prayed for. The compensatory damages suffered by Claimant was a reparable injury, and this Board had original and exclusive jurisdiction to order requittal, but failed and refused to do so.

The Claimant in this case has wrongfully been denied just compensation for the damages he suffered, and I most vigorously dissent. While dissenting, it would seem quite appropos to include a "Caveat" for the facts are that Claimant simply had his just grievance denied by having it come before the wrong Referee who chose to permit Carrier to gain from violating the Agreement. Such actions do not promote the purposes of the Railway Labor Act but rather serves to subvert them.

D. E. Watkins