LABOR MEMBER'S

CONCURRING OPINION AND DISSENT

TO

AWARD 28889. DOCKET MW-29070

(Referee Wallin)

The Majority correctly found that the Agreement was violated when the Carrier assigned employes from one seniority district to work on another seniority district. This finding was not difficult to make inasmuch as the Carrier freely admitted to violating the Agreement. However, the Majority's finding that no monetary remedy is warranted for such a violation is both poorly reasoned and an anomaly that diverges from a virtually unbroken string of Third Division awards that allowed monetary claims for so-called fully employed claimants when the carrier violated seniority district rules. Moreover, this award conflicts with well-established precedent on this orooert concerning a precisely identical situation.

The Majority's first error was its finding that there is a "divergence of awards in this difficult area". That finding is plainly and simply wrong. What is perplexing is how the Majority arrived at this plainly wrong conclusion. There is no precedent cited in the award. However, a review of the record establishes that the following list of awards was cited to the neutral member by the Carrier as precedent on this Carrier's property: Third Division Awards 26137, 26182, 26229, 26381, 26709 and 27185, Awards 5, 25, 29, 40 and 42 of Public Law Board No. 3781 and Awards 2, 4, 5 and 32 of Public Law Board No. 2945. The problem is that not a

single one of these awards dealt with the issue of crossing seniority district lines. The fact is, that every single one of these awards is clearly distinguishable from the instant case. Although we hesitate to burden the record by individually examining each and every one of these awards, we do feel compelled to examine the most glaring examples of the inapposite awards upon which the majority apparently, but erroneously, relied.

This award involved a subcontracting dispute, not a seniority district dispute. Moreover, the claim was made for furloughed claimants and sustained for these same furloughed claimants. Inasmuch as the claimants were furloughed, there was no discussion, argument or award citation concerning pay for fully employed claimants involved in this case. Hence, it has no application to the instant case.

This award involved the recall of junior furloughed employes instead of senior furloughed employes. The claim was sustained from the beginning of the violation until the violation was corrected, i.e., until the senior employe was recalled. The claim did not involve seniority district violations or so-called fully employed claimants. Consequently, this award has no logical application or precedential value in the instant case.

Once again, this award does not involve seniority districts or so-called fully employed claimants. This case involved changing of headquarters and a claim for expenses. It is not even remotely applicable in the instant case.

Both of these cases involve the recall of junior employes instead of senior employes. Both cases were sustained. Neither case involved so-called fully employed claimants, nor were any argument or awards concerning the full employment issue raised in the case. These awards are clearly not applicable to the instant case.

This case involved the arbitrary disqualification of a clerk and a subsequent improper displacement. The claim was sustained. It did not involve seniority districts or the fully employed claimant issue. It clearly has no application to the instant case.

In addition to taese inapposite awards involving Conrail, the following awards were cited to the neutral to support the Carrier's theory that this Board has no authority to impose a penalty: Second Division Awards 1638, 3967, 10666, Third Division Awards 10963, 13154, 13958, 14853, 15062, 15624, 16691, 18540, 20921, 25445, 25694, 25696, 26063, 26169 and 28693. There are two problems with attempting to apply these awards to the instant case. First, with the exception of a single award (Third Division Award 18540), none of these awards involve seniority district violations. Second, several of the awards are by Referee Dorsey (Third Division Awards 10963, 13958, :4853) or relied upon precedent set by Referee Dorsey in Third Division Award 13958 (Third Division Awards 15062, 15624, 16691). Of critical importance, is the fact that based upon amendments to the Railway Labor Act and judicial developments in the law, Referee Dorsey subsequently reversed his finding in Award

13958 and held, in Award 15689, that the so-called full employment of claimants is no bar to awarding compensation for Agreement violations. Simply put, much of the precedent upon which the Carrier relied has been reversed by the very referee who wrote the awards.

The fact the seniority district cases are distinguishable from other types of cases is evidence by a review of Third Division Awards 15062 (cited by the Carrier) and 12671. Both of these awards were rendered by Referee Ives. Award 15062 was a subcontracting case and Referee Ives relied (Award 13958, later reversed by Dorsey) to deny a compensatory award based on full employment of the claimants. However, Award 12671 was a seniority district type dispute and Referee Ives sustained the claim for so-called fully employed claimants as follows:

"The Petitioner's claim (Part 2) prays for an award of money to be paid to each of the particular named B&B employes at his respective straight time rate for the computed time they allegedly would have worked if they had been assigned to perform the number of hours actually worked by the Nashville Terminal BSB employes. The Petitioner primarily relies on numerous awards which have held, under various factual situations, that the full employment of Claimants is not necessarily a valid defense against such monetary claims. Particular emphasis is placed upon two recent awards of this Board by the Petitioner (Awards 11937 and 11938).

"The Carrier contends that the Agreement contains no provisions for so-called punitive damages for contractual violations such as we have found in this case. It argues that the Claimants have not been damaged monetarily and are, at most, entitled to nominal damages. In support of its position, the Carrier cites a number of previous awards and federal court decisions.

After careful review of the entire record in this case, we find that the extent of the monetary damages suffered by the Claimants is a matter of proof. The Petitioner has submitted specific hourly claims on behalf of each individual Claimant, based upon the number of actual hours spent on the disputed work assignment by others, which can be readily translated into specific monetary claims. The Carrier has offered no evidence that the Claimants could not have performed the work by working overtime or that the work could not have been delayed and later performed during regularly scheduled hours of work.

The Carrier here has erroneously described the monetary claim as a prayer for punitive damages which implies that the organization seeks the assessment of a pe alty over and above the damages suffered by the Claimants. We find that the damages sought by the Petitioner are limited to compensatory damames directly arising out of the Carrier's violation of the Aareement. which would compensate the Claimants by makincLthem whole for work they otherwise would have performed and wages they would have earned. (Awards 11937. 11938 and 117011. We will sustain the claim."

The awards cited above clearly show that over a period of nearly twenty years, eleven different arbitrators have issued twenty-one awards sustaining compensation for so-called fully employed claimants when a Carrier violated seniority district lines, including Award 41 of Special Board of Adjustment NQ. 1016 on this proyertv. The inexonerable conclusion is that there is no odivergence~ of awards on the subject as the Majority suggested in Award 28889. Hence, the first premise upon which Award 28889 is based (i.e., divergence in precedent) is invalid.

The second error inherent in this award is the finding that there was no proven cognizable loss causally traceable to the violation of the Agreement. Contrary to this absolutely unsupported finding, there were two very ser