TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
(Formerly The Order of Railroad Telegraphers)
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the Lehigh Valley Railroad, that:
EMPLOYES' STATEMENT OF FACTS: The facts in this case are relatively clear, and undisputed.
At Niagara Junction, New York, there is one telegraph service employe engaged on each shift, first, second and third, with classification towermantelegrapher. Each is a seven-day position. All rest days are normally covered by regular relief positions.
Samuel Germain, Claimant, is the regular occupant of the second shift position with assigned hours of 3:59 P. M. to 11:59 P. M. He is assigned to work Wednesday through Sunday, with Monday and Tuesday rest days. The hourly rate of said position is $2.6918. The Monday and Tuesday rest days of Mr. Germain's position are part of a regular relief position, held by Mr. Lindhurst.
On Monday, March 4, 1963, Mr. Lindhurst was not available to cover his assignment in relieving Mr. Germain on his rest day. Mr. Germain was ready, willing and available for assignment to work his position on his rest day. Instead of assigning Mr. Germain, Carrier assigned Mr. K. Frayne, an extra employe who was on the earned rest day of the assignment he then held, for which rest day service he was paid eight hours at time and one-half rate.
Claim was filed in favor of Mr. Germain in the premise that he was entitled to work his position on the rest day thereof and payment request was therein made that he be compensated for the service he was entitled to work at the rate prescribed in the Agreement.
The Claimant is the regular occupant of the second shift position at Niagara Junction, New York. His assigned hours are from 3:59 P. M. to 11:59 P. M. and his assigned work days are Wednesday through Sunday with rest days of Monday and Tuesday. The Monday and Tuesday rest days of the Claimant are a part of the regular relief position held by telegrapher Lindhurst.
On Monday, March 4th, 1963, telegrapher Lindhurst was not available to work the second trick or shift position at Niagara Junction in relief of the, Claimant. The Carrier used an Extra employe named Frayne to perform the rest day relief service on Monday, March 4, 1963.
The Carrier does not deny that Extra employe Frayne had worked all five work days immediately preceding March 4, 1963, on a second trick position at Manchester, which position also had assigned rest days of Monday and Tuesday.
The Employes contend that the Claimant was ready, willing and available to work his position on his rest day. There is nothing in the record on behalf of the Carrier to refute this contention.
The Employes further contend that Frayne, having worked all five days of the same work week, had earned its rest days in the same manner that the regular employe whose place he was taking would have done and therefore Frayne was on a rest day on March 4th, which day was attached to the position at Manchester. That being the case, the Claimant in this dispute, who was on his rest day, had a right to the work at Niagara Junction superior to any right of the extra employe, Frayne.
The Carrier contends that Frayne, having completed his assignment at Manchester on Sunday, March 3rd, 1963, he immediately reverted to the extra list, and for that reason he was available to substitute for the absent relief employe Lindhurst at Niagara Junction.
Under date of June 30, 1960, the parties to this dispute entered into an Agreement in connection with the establishment of a Forty-Hour Week. The provisions of that agreement that are applicable to the issue before us, read as follows:
The question that presents itself is whether or not the extra employe Frayne was available on March 4th, 1963, within the meaning of the provisions of the rules above cited, to be used to take the place of Lindhurst.
This Board has held on numerous occasions that an extra employe who takes the place of an absent employe assumes all of the conditions of the position be is filling including rest days; and that when he has worked all five work days of such assignment he is entitled to and/or earned the rest days attached to that assignment. He must be treated the same as any other employe on a rest day.
The contention of the Carrier that Frayne completed his assignment at Manchester on Sunday, March 3rd, and thus was available to substitute for Lindhurst at Niagara Junction on March 4th, 1963, is without merit and cannot be sustained. The facts in this case conclusively show that Frayne did not complete his assignment at Manchester until Tuesday, March 5, 1963, and thus was not available on Monday, March 4, 1963, to substitute for Lindhurst. Under the provisions of Rule 7-Section 1-Paragraph (n), of the Agreement, the Claimant was entitled to the assignment, and should have been used.
Carrier contends that, in the event of a sustaining award, the Claimant is entitled to no more than payment at the pro rata rate; that the Claimant would be entitled to the rate of time and one-half only for work performed and since the Claimant was not called and therefore did not work he should not be compensated at time and one-half. Claimant did not work for the simple reason he was not called by the Carrier.
Both the Claimant and the Carrier have submitted numerous Awards to sustain their irrespective positions.
The Carrier having violated the Agreement between the parties, the Claimant has sustained damage.
The law of Damages for a breach of a contract is just compensation for the loss which necessarily flows from the breach. Its purpose is to place the injured party in the position the party would have been had the contract been fully performed. We follow that principle.
The damages sought by the Claimant are limited to compensatory damages directly arising out of the Carrier's violation of the Agreement, which would compensate the Claimant by making him whole for work he otherwise would have performed and the wages he would have earned had he been called upon by the Carrier to perform the work in question. In this ease that rate would be at time and one-half. We will sustain the claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds: