Ida Klaus, Referee


(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (-
                (Southern Railway Company


STATEMENT OF CLAM: "Claim of the General Committee of the Brotherhood of
                Railroad Signalmen on the Southern Railway Company et al:


On behalf of S,'gnalman R. W. Pearson for 12 1/2 hales' pay account on August 15 and 16, 1979, a crossing signal gang performed other than crossing signal work." (General Chairman file: SR-131+. Carrier file: SG-1F11)

 OPINION OF BOARD: This claim, brought in behalf of Signalman R. W. Pearson,
 asserts that the Carrier violated an agreement concerning crossing signal gang work by assigning a member of the gang to perform other than crossing signal work on August 15 and 16, 1979. The Organization seeks pay for Pearson for the time spent by the gang member on the challenged work.

 The essential facts underlying the violation alleged are not in dispute. While outside contractor forces and the District Signal Gang were engaged in installing highway crossing signal devices, a member of the gang was assigned to operate the gang trenching machine to assist the Claimant and work along with him on a separate signal project involving installation of elctro-Code cable. The ether members of the gang continued to perform gang work at the times in question. The work at issue totalled 12 1/2 hours over the two days. The Claimant was on duty and under pay during those hours.

 The Agreement was entered into on January 24, 1975, and reestablished as of May 13, 1977. It provides, in relevant part, as follows:

            "(1)(a) Two new signal gangs (consisting of a foreman and.sia (6) men each), shall be established -- for the purpose of installing automatic or manual electrically operated highway crossing protective devices..r--After each of these gangs has been established, it be used to perform available work installing such highway crossing protective devices; this will cot bar the use of these fangs to perform other signal work whey highway crossing projects are unavailable and when such work is not being performed by other forces under section (3) below. .


            (3) While the work of installing automatic or manual electrically operated highway crossing protective devices has been recognized as work falling within

                        Award Number 24038 Page 2

                        Docket Number SG-23956 _


            the Scope of the scheduled agreement between Southern Railway Company and affiliated Carriers and the Organization party hereto, highway crossing protective devices that cannot be installed on the territory comprised of Southern's Lines East and Lines West Seniority Districts by Carriers' signal forces during normal work hours (including gangs established under (1) above) may be installed on said territory using other forces represented by Brotherhood of Railroad Signalmen. Carriers shall give preference to the use of the gangs established under (1) above to work projects involving changes to existing crossing protective equipment that involve other Signal Circuits.


            (4) There shall be no re3ucton'3ri the number of positions or the number of signal gangs on Southern's Lines East and Lines West Seniority Districts, including the gangs established in accordance with Section (1) of this Agreement while contractors are performing work described is Section (3) above. *~"


It is the Organization's position that the plaice language of paragraphs (1) and (3) restricts assignment of any gang member exclusively to highway crossing sisal work at such times as outside farces are on the property installing highway crossing signals. The Organization stresses that the manifest intent of tile Agreement was to assure that outside forces would not be used to limit work opportunities of the Carrier's employees. It asserts a loss of work opportunity by the Claimant.

        .The Carrier makes three principal contentions to defeat the claim:


1. The Carrier acted in full accord with the Agreement because the gang as such was engaged in the work specified by the Agreement on the dates in question. The one gang member and the trenching machine were not needed at the time for the gang work. The Organization's restrictive interpretation has no basis is the Agreement, and the Organization has pointed to no specific language prohibiting the Carrier's action and validating the claim.

 2. There is in any event no valid basis for this claim, as the disputed work had no adverse impact on the Claimant. The Clai"mant was, and remained, fully employed. The Organization has not shows that he incurred monetary damage through any lone of fob opportunity.

        3. The amount of work performed was de minimis is any event.


In rebuttal, the Organization does not disagree that the challenged work had no monetary or other adverse impact an the Claimant. It seeks to support the claim on the basis of an assertedly established Board Policy of assessing punitive damages where violation of an agreement is found and no loss of wages is shown to have occurred. It cites Board awards from the Third Division. It also disputes the de minimis characterization. The Organization has offered. fm-ther Justit'~catioa !or the claim
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                        Docket Number SG-23956


on a separate additional ground. It asserted that some unidentified employee lost work "along the line somewhere" and that the Claimant is the logical person to make the claim because he was on the job in which the violation was committed.

 On a careful reading and analysis, the Board makes the following interpretation of the Agreement insofar as it is applicable to the facts before us:

 1. The signal gangs are to be used exclusively for the sole purpose of installing highway crossing signals. This is evident from both the plain language of Section (1)(a) and its express exception which permits other use of the gangs only in the absence of outside forces.

 2. The size of each signal gang is to be maintained at a constant level of six members and a foreman. This is evident from both the clear language of Section (1)(a) prescribing the numerical composition of the gang and the prohibition in Section (4) of any reduction in the number of positions on the gang. Again an exception is indicated only where no outside forces are present.

 3. The total effect of the Agreement language is to restrict the entire gang to highway crossing signal installation work at any time that a contractor is on the property installing highway crossing signals. We see the restriction as a reflection of the plain intent of the parties to protect the Carrier's employees from threats to their work opportunity by outside forces.

 Applying the essential interpretation to the operative facts presented by this claim, the Board concludes that the Carrier violated the Agreement by assigning a member of the gang to work with the Claimant on the electro-code cable installation job. We cannot accept the Carrier's contention that use of one member of the gang for the disputed work while the others continued to perform the prescribed gang function did not violate the Agreement. As we have stated, a fair reading of the Agreement does not permit diminution of the prescribed size of the gang while outside forces are present. Any deviation from the numerical composition of the gang may reasonably be seen as weakening the basic protection of Carrier employees intended by the Agreement. It is significant that the Agreement makes no exception eves for a gang member whose services may not be needed at a particular time. Finally, we do not regard 12 1/2 hours of work as de minimis.

 Having found a violation, we address the question of appropriate remedy on the facts shown by this record. We consider the Carrier's contention that this claim is without valid support, and is hence not properly payable, because the claimant was fully employed and was not shown to have suffered any other adverse economic effect from the prohibited work. As the factual basis of this argument has been conceded by the Organisation, we are brought to the issue, raised by the Organization, of the Claimant's entitlement to punitive damages as both a penalty for the breach committed and a deterraat against similar violations in the future. The issue arises because the Agreement does not specifically prescribe or expressly authorize the exaction of a penalty.
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                        Docket Number SG-23956


Established principle is against a^.e payment of punitive damages far violation of federal labor relations laws. Remedial action is limited to compensatory monetary restitution for actual losses incurred. (See: Electrical Workers v. Foust, 442 U.S. 42(1979); Deboles v. Trans World Airlines, 552 F. 2d 1005, cent. den. 434 U.S. 837(1977 . The prevailing view in arbitration cases appears to point in the same direction where no specific penalty provision is made is the labor agreement.

 Decisions of this Board, however, do not reflect a uniform sustained position on this issue. See, for example, Award Number 19899 (Sickles), which favors the assessment of punitive damages, and Award Number 22194 (Wallace), which rejects it -- both from the Third Division. For present purposes, we need not espouse one or the other view or attempt to reconcile their differences. It is sufficient to state that, even if this Hoard could be said to have the authority to impose punitive damages where no compensatory remedy is applicable, we do not consider that the particular circumstances present here would justify the exercise of any such authority. Briefly these circumstances are:

 1. The Claimant, as the occupant of the job in which the prohibited work was performed, was fully employed and was not shown to have lost any work opportunity or suffered any adverse economic effect.

 2. As the ultimate loser, if any, has not bees identified or shown to be identifiable, the Claimant's relationship to the ultimate loser must be deemed too remote to justify vindication of that employee's loss by payment to the Claimant.

 3. There is no basis is the evidence for finding a wilful or repetitive violation on the part of the Carrier.

 Accordingly, it is the opinion of the Board that the record does not afford an acceptable basis for sustaining the claim for monetary payment as a remedy for the violation found. It is our view that the finding of violation of the Agreement will afford appropriate notice to the Carrier sufficient in itself to deter similar conduct on its part is the future. We will therefore deny the claim for monetary payment.

        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 Employee involved in this dispute are respectively Carrier and Employee within the meaning of the Railway Iabor 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.

                        Award Number 2L03$ Page 5

                        Docket Number 53-23956


                          ATd.P.RD


The claim is sustained insofar as it alleges a violation of the Agreement. It is denied insofar as it seeks monetary payment.

                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 BY
        Rosemarie Brasch -~A,d//miniatrative Assistant


Dated at Chicago, Illinois, this 29th day of November 19$2.