THIRD DIVISION
(Supplemental)
The records indicate that claimants Bentler, Evans, S. Salerno, Billick, Foley, Jarzembowski, Heater, Naughton, Ingram, Shaylor, Babbitt, Klecha worked continuously during period of claim, that G. Lenko worked continuously except for the period January 1, 1966 through January 22, 1966, and that Skosko worked continuously through November 30, 1965. Concerning claimants A. Salerno, Sholosky, Petrunich, Janicki, Chermauska, Kuligowski, Nardone and Georgevich, these claimants have not worked for Carrier since merger (October 17, 1960) and have either moved from the Scranton Area, are working for other concerns or their whereabouts are unknown.
OPINION OF BOARD: On September 21, 1965 Carrier contracted with The National Cylinder Gas Company to weld new and relayer rail in continuous strings of approximately 1,500 feet in length.
The Carrier before this Board argues that inasmuch as Erie Railroad and the Delaware, Lackawanna and Western Railroad merged, although thereafter the separate agreements were retained, and the work in question was performed on the Erie Railroad, then the "Lackawanna" agreement does not apply to this dispute. The Organization points out that this contention was not raised on the property in this instant dispute.
A close review of the record clearly shows that such a contention as raised by Carrier was not raised on the property, and since this Board has held on numerous occasions that charges or contentions not raised during the handling on the property, cannot be considered by this Board, then Carrier's contention that the work was performed on the Erie Railroad and was therefore under the Erie Agreement rather than the "Lackawanna Agreement" cannot he considered by this Board in the determination of this dispute.
The Organization's position is that the work belongs to Petitioner's under the Agreement; that Rule 26 (a) was violated when Carrier did not agree with the Organization upon the contracting of such work.
This has reference to your letter of August 2, 1965 and our telephone conversations concerning the welding of new and relay rail at former Receiving Yard at Hampton.
The Organization therefore argues that inasmuch as the Carrier did not agree with the Organization in regard to the contracting of such work, then Carrier must be found guilty of violating Rule 26 (a) which makes it mandatory upon Carrier to obtain the approval of the Organization prior to the contracting out of said work.
With this contention of the Organization, we agree. It was mandatory under the provisions of Rule 26 (a) for the Carrier to attempt to secure an Agreement with the General Chairman in regard to the contracting out of the work here in question.
In the instant dispute, the General Chairman did not outright refuse to permit the contracting of the work here in question. In fact the General Chairman indicated to Carrier that there was a possibility that the operation
of certain equipment could be performed by the outside contractors employes. Yet, the record is void of any evidence that Carrier attempted to secure an agreement with the General Chairman in regard to the contracting out of this work. Therefore, it is the opinion of this Board that Carrier violated the Agreement.
In regard to the question of damages, it is undisputed that some of Claimants were working every day and suffered no pecuniary loss, while some of the Claimants were furloughed. It is Carrier's contention that a number of Claimants were furloughed, but that Carrier could not locate them. No evi. dence was adduced by Carrier to show that these Claimants could not be located and therefore this contention must be rejected.
In regard to the claim for benefits under Travelers Insurance Policies, the record is lacking in evidence that the Claimants suffered any such loss and therefore this part of the claim must be denied. See Award 16269 (Perelson).
Therefore the following named furloughed Claimants are entitled to damages sufficient to make them whole, or in other words they are entitled to receive what they would have earned under the Agreement had there been no violation less such sums as they in fact earned. (See Brotherhood of Railroad Trainmen v. Denver and Rio Grande Western R. Ca., 338 F. 2d 407): A. Salerno, W. Shelosky, M. Petrunich, H. Janicki, A. Chermauskas, L. Kuigowski, S. Nardone, and P. Georgevich.
Further, the record shows that Claimant G. Linko was off work from January 1, through January 22, 1966, and he also is entitled to damages for only that period, sufficient to make him whole. The record also shows that Claimant J. Skosko was furloughed on November 30, 1965 and he too is entitled after that date to damages sufficient to make him whole.
In regard to the remaining Claimants, the record shows that they did not suffer any pecuniary loss. This Board has on numerous occasions been faced with the perplexing problem of a situation where the Agreement has been violated by Carrier, but the Claimant has been working and thus suffered no pecuniary loss. Many Awards are in conflict in an attempt to finally resolve this problem.
There are a number of conflicting court decisions in regard to this question, and we adhere to the principle that damages shall be limited to Claimants' actual monetary loss arising out of the Agreement violation and that this Board is without authority to employ sanctions or penalties not authorized by the controlling Agreement, except to the extent of nominal damages See Awards 14920, 14693, 14371 and 13236; Brotherhood of Railroad Trainmen v. Denver & Rio Grande Western Railroad Co., 3438 F. 2d 407, cert. den. 85 S. Ct. 1330. See also Award 15624 (McGovern).
Until the United States Supreme Court decides otherwise, we are compelled to deny in regards to damages the claims of those Claimants who were not furloughed and thus did not suffer any pecuniary loss.
FINDINGS: The Third Division of the Adjustment Board, 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
Paragraph (2) of the Claim is sustained in accordance with the Opinion as to the following named Claimants: A. Salerno, W. Shelosky, M. Petrunich, H. Janicki, A. Chermauskas, L. Kuigowski, S. Nardone, P. Georgevich, and G. Linko and J. Skosko; Claim as to damages denied as to following named Claimants: W. Bentler, G. Billick, A. Heater, R. Shaylor, J. Evans, J. Foley, R. Naughton, G. Babbitt, S. Salerno, M. J. Jarzembowski, E. Ingraham and S. Klecha.
The claim here was based on there having been a violation of the Agreement covering employes on the former DL&W Railroad, but the record disclosed that the work covered by the claim was in connection with the welding of rail which was used on the former Erie Railroad and on which there is a separate Agreement covering employes represented by the petitioning Organization. The Agreement on the former DL&W does not apply on or to the former Erie and this Division's refusal to consider this resulted in jurisdictional error. In finding that the DL&W Agreement was violated, coverage of that Agreement was thereby expanded, notwithstanding the Division's lack of authority to add to, take from, amend or make agreements. In a somewhat analogous situation, this Division, in Award 14981, held: