(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (Missouri Pacific Railroad Company

1. Carrier violated the Clerks' Agreement, Rules 3 and 9 and related rules, when it required Mr. Claude Thorne, Jr. to leave his regular assigned position as Tel and work position of Telegrapher-Clerk at Omaha, Nebraska, May 16, 17, 18 and 19, 1973 (Carrier's File 380-3098).

 2. Carrier shall now be required to compensate Claimant Thorne eight hours' pay, for each of the aforementioned dates on which he was withheld from his regularly assigned position, in addition to the amount he was actually paid for working at Omaha, Nebraska.

 OPINION OF BOARD: Claimant was regularly assigned as a Telegrapher-Clerk
 at Union-Nebraska City, Nebraska. On May 16, 17, 18
 and 19, 1973, he was instructed to protect a shift at Omaha.

 Claimant asserts a violation of Rule 9 which specifies the basic rules and regulations concerning filling of positions or vacancies of less than thirty calendar days' duration. Claimant did not request a rearrangement, in writing, as requir
Carrier defends its action on the assertion that an "emergency" situation prompted its action, and that Rule 28 permits this type of utilization:

The Ex Parts Submissions and Rebuttal Briefs filed with this Board (by both of the parties) contain extensive arguments based, to a great extent, upon testimonial assertions contained in those documents. The parties present varying views as to the factual circumstances Surrounding the dispute and the ba


the current Rule 9 was negotiated. Unfortunately, the parties did not develop these matters while the dispute was under consideration on the property. Had they done so, we would be in a position to issue an Award based upon all of the contentions advanced. However, it has long been held that under the procedures of this Board, we may only consider the issues as framed on the property, and may not consider factual allegations advanced, for the fir are precluded, by the parties, from a full exploration of all of the contentions advanced; but rather, we are confined to a determination of the dispute as it was considered and handled on the property.

 We feel that Claimant submitted sufficient factual information (on the property) to show a prima facie case of a violation. Rule 9 does not refer to "emergency" situations, and thus it is clear that when Carrier raised that affirmative defense it assumed the burden of proving same.

 In its June 19, 1973 denial of the initial claim, Carrier stated that Claimant was used in an emergency due to a lack of qualified personnel at Omaha. That assertion was repeated on July 24, 1973. On July 31, 1973, the Organization stated: "We disagree with the ....position that an emergency existed ...." While that assertion is general in nature, on November 5, 1973 the Organization notified Carrier that there were three named employees who were available and who could have filled the position on the claim dates. Carrier did not respond to that assertion on the property. While Carrier did off submitted previously.

 The Board is compelled to hold that Carrier has not established its affirmative defense and therefore we must sustain Claim 1. We emphasize that our determination i record as developed on the property, and the burden of proof concerning said record. Obviously, we may not, under the status of the record, consider the broader issues sugg
Similar considerations control our disposition of Claim No. 2. Claimant seeks eight hours' pay, for each claim date, in addition to the amount he was actually paid.

 In Award 19899, we considered the question of damages, at length. But, in that case (which dealt with loss of work opportunities) we noted that we would not entertain speculative claims, but rather, we would require that the claim be presented and advanced on the property.


Under this record, we find no such circumstance. Carrier consistently stated that it could find no basis for a claim for an additional day's pay per claim date. Nonetheless, Claimant failed to advance or urge a basis for the monetary claim. We do not suggest that it would be inappropriate, under a different record, to award monetary damages if the status of that record warranted same. However, for the reasons stated above, under this record, we must dismiss Claim 2.



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










ATTEST:
 Executive Secreeary

 Dated at Chicago, Illinois, this 21st day of February 1975.

 .v..=*~
            LABOR =='S CCNCURRE7iCE AND DISSDIT

            TO AIIARD 20622 (Docket CIr20672)


Award 20622 has correctly found that an Agreement violation occurred when Claimant was required to abandon his assignment at Union-Nebraska City to work a vacancy at Orraha.

 The Board's failure, however, to allow C1air-ant eight hours' pay for each of the four days on which his services were improperly utilized at Omaha is basically :mcntg for two reasons. First, the issue of not allowinr* a penalty for viola~ion of the AFTeemznt does not appear in the Record as having been raised during he_ndling by the parties en the property. 7t long has been held in A·:rards of this Board that issues not raised during handling on the property and subsequently raised for the first time before the Board are inadmissible a^.a v.,ill not be considered. See Awards 20163, 20166 and 20288, in which this same Referee participated. in this instance, the issue raised by the C.1:r_er for the first tine before the Bca_nd :-;as improperly considered.

 'Ihe second error made in this Award is the failure to allow the penalty requested in Part 2 of the Statement of Claim. As the Board has reaffirmed in a long lire of A-,;ards, when a breach of an Agreement is fcund to exist, a pena-Ity must be --'-.posed to uphold the integrity of the A..-reer gent . r ni l t li e to reouire rep:ratiors i:T:ores the Carrier's responsibility - a party to the Agreement. See Awards 11701 (Engelstein), 17973 (Kabaker) and 19814 (Rodley). In Award 20311, Referee Lieberman correctly stated:

    . "Carrier contends that Claimant sustained no monetary loss as a result of the dispute, Carrier concludes, therefore that the Board has no ,urisdictien to assess a monetary penalty in this case. Petitioner argues that the monetary claim is not for a penalty as such, but rather for danages. ihere have been many awards dealing 7rith this issue, upholding sharply conflicting points of view. It is our conclusion that no useful purpose is served by the Board finding that the Agreement has beer, violated and offering no remedy except reprimand to Carrier; such action might well serve to encourage repeated violations of the Agreement and appears to constitute Devaney Emer`ency Board established in 1937 was correct when it stated: '...experience has shown that if rules are to be effective there must be adequate penalties for violation.' We shall affirm the line of kvards that hold that violation of the Agreement realLires cor:pens ation as reparation for such breach (Award 17973)."


    In light of the above, concurrence and dissent are registered.


                            J. . F1_.~=hER


Parch 5, 1975 4r N'errber