NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Arthur W. Devine, Referee

(a) The Louisville & Nashville Railroad Company (hereinafter referred to as "the Carrier"), violated the effective Agreement between the parties, Articles I1I(a) and III(b), III(f), and IV(h) thereof in particular, by its failure to assign the senior available extra Train Dispatcher to perform extra train dispatcher's work in its Louisville, Kentucky train dispatching office on November 18, December 2, 9, 16, 23, and 30, 1969, and January 20, 1970.

(b) For the violations referred to in paragraph (a) hereof, the Carrier shall now compensate Claimant G. E. Owen seven (7) days' pay at the straight time trick train dispatcher's rate, in addition to Claimant's earnings in other service.

`:ARTICLE III

REST DAYS

(a) Rest Days:

Each regularly assigned train dispatcher will be entitled and required to take two (2) regularly assigned days off per week as rest days, except when unavoidable emergency prevents furnishing relief.

Unless prevented by the requirements of the service, extra train dispatchers will be relieved from train dispatcher service for a period of two (2) days for rest day purposes after they have performed five (5) consecutive days' work as train dispatcher.

OPINION OF BOARD: The record shows that the Claimant herein was an extra train dispatcher and held a regular position of Agent-Operator at Greensburg, Kentucky.

On the dates involved in the claim a regularly assigned train dispatcher in Carrier's Louisville dispatching office worked his assigned rest days. In the handling of the dispute on the property, the Carrier acknowledged that Claimant did stand for work as extra dispatcher on the dates involved, and should have been used, and it states that Claimant was paid for each day at the train dispatcher's rate as though he worked as dispatcher. On the dates involved he worked his regular position of Agent-Operator at Greensburg. The claim demands a day' pay at train dispatcher's rate for each date involved, in addition to Claimant' earnings as Agent-Operator.

The Carrier contended in the handling of the dispute on the property and continues its assertion before the Board that the payment made herein of making the Claimant whole was in accordance with past practice. The Petitioner does not deny such practice, but contends this is the first claim filed by Employes since the current Agreement was negotiated and took effect on November 1, 1969, and contends that the prior settlements were under the prior Agreement. The Carrier responds that the Agreement effective November 1, 1969, was the combining of two prior existing Agreements.

In recent Award 17772 involving a somewhat similar dispute, the Division held:

"Although Claimant did not work as a train dispatcher on those dates, he was paid at the train dispatcher rate. And the Carrier advised him that he was so paid because there was no extra telegrapher to replace him as Clerk-Operator. Is then the Claimant entitled to eight additional pay at the train dispatcher's rate for each of the dates in the claim? Employes' claim is in the nature of a penalty.

There are many awards of this and other Divisions which have sustained penalty claims for the violation of rules in the schedule agreement. And there are other awards which limited damages to actual monetary loss resulting directly from such a breach. The former sustained penalty damages on the theory that without such a penalty the Carrieris given a license to violate the agreement with impunity. The rights and privileges provided for in the collective bargaining agreement must be protected and if no damages are assessed the rules in the agreement could become meaningless. This is a valid principle frequently followed by the neutral member of this Board.

But not every contract violation per se justifies a penalty. In Award No. 14177 the Board, with this Referee, said that `Punitive damages may be assessed when it is shown that the Carrier has deliberately and maliciously persisted in violating the Agreement, in spite of protests from employes and their respresentatives.' There is no showing here that Carrier `has deliberately and maliciouslly persisted in violating the Agreement.' There is no showing that the Employe~s ever complained or protested Carrier's handling of similar situations. On the contrary, one claim was settled on the property by paying the employe the difference between the dispatcher rate and

The foregoing holding is sound and we adopt it herein. See also Awards 17773, 18063, 17709, 14177, among others.

As the Claimant has been paid at train dispatcher's rate for each date involved in the claim, no further compensation is due.

FINDINGS: The Third Division of the Adjutment 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 to extent shown in Opinion, but Claimant is not entitled to any additional compenstaion.

AWARD