Claim No. 1

(Carrier File 6 (97-0019)

(TCU File 4.12 (7) SCL)

The Carrier violated Rules 18 and 19 of the TCU Clerical Agreement when it failed to establish five (5) regular relief assignments at Crew Management Center, 116 Druid Street, and 3019 Warrington Street, Jacksonville, Florida.

Carrier shall now be required to compensate the Senior Available Clerk at the appropriate rate (pro rata or punitive) beginning sixty (60) days prior to this date (June 24, 1996) and continuing for each shift of each day until all regular relief assignments are established or the violations cease entirely.

Claim No. 2

Carrier File 6 (97-0018)

(TCU File 4.11 (7) SCL)

T. J. Lesaganich

at the punitive rate.

Claim No. 3

(Carrier File 6 (97-0090)

(TCU File 4.13 (7) SCL)

W. H. Bowling

it failed to call Clerk W. H. Bowling, ID 616331, first as incumbent on

assignment L104 on duty at 0700 hours.

Claim No. 4

(Carrier File 6 (97-0092)

(TCU File 4.15 (7) SCL)

W. H. Bowling

Claim No. 5

(Carrier File 6 (97-0093)

(TCU File 4.16 (7) SCL)

W. H. Bowling

failed to call Clerk W. H. Bowling, ID 616332, first as incumbent on

assignment L104 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 6

(Carrier File 6 (97-0094)

(TCU File 4.17 (7) SCL)

W. H. Bowling

it failed to call Clerk W. H. Bowling, ID 616332, first as incumbent on

assignment L104 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 7

(Carrier File 6 (97-0095)

(TCU File 4.18 (7) SCL)

W. H. Bowling

it failed to call Clerk W. H. Bowling, ID 616332, first as incumbent on

assignment L104 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 8

(Carrier File 6 (97-0096)

(TCU File 4.19 (7) SCL)

W. H. Bowling

it failed to call Clerk W. H. Bowling, ID 616332, first as incumbent on

assignment L104 on duty at 0700 hours.

Claim No. 9

(Carrier File 6 (97-0097)

(TCU File 4.20 (7) SCL)

R. A. Long

it failed to call Clerk R. A. Long, ID 501237, first as incumbent on

assignment S109 on duty at 0700 hours.

at the punitive rate.

Claim No. 10

(Carrier File 6 (97-0098)

(TCU File 4.21 (7) SCL)

W. H. Bowling

it failed to call Clerk W. H. Bowling, ID 616332, first as incumbent on

assignment L104 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 11

(Carrier File 6 (97-0163)

(TCU File 4.22 (7) SCL)

M. T. Hughes

it failed to call Clerk M. T. Hughes, ID 159181, first as incumbent on

assignment F103 on duty at 0700 hours.

at the punitive rate.

Claim No. 12

(Carrier File 6 (97-0164)

(TCU File 4.23 (7) SCL)

J. H. Woods

at the punitive rate for each of the five (5) above-cited claims.

Claim No. 13

(Carrier File 6 (97-0165)

(TCU File 4.24 (7) SCL)

D. A. Edney

and October 1, 1996, when it failed to call Clerk D. A. Edney, ID

609919, first as incumbent on assignment L302 on duty at 2300 hours.

at the punitive rate for each of the four (4) claims cited above.

Claim No. 14

(Carrier File 6 (97-0166)

(TCU File 4.25 (7) SCL)

D. F. Kay

when it failed to call Clerk D. F. Kay, ID 618478, first as incumbent on

assignment C301 on duty at 2300 hours.

at the punitive rate for each of the above-cited claims.

Claim No. 15

(Carrier File 6 (97-0167)

(TCU File 4.26 (7) SCL)

M. T. Hughes

when it failed to call Clerk M. T. Hughes, ID 159181, first as

incumbent on assignment F103 on duty at 0700 hours.

Claim No. 16

(Carrier File 6 (97-0168)

(TCU File 4.27 (7) SCL)

G. E. Speis

6, 1996, when it failed to call Clerk G. E. Speis, ID 503655, first as

incumbent on assignment N304 on duty at 2300 hours.

at the punitive rate for each of the three (3) above-cited claims.

Claim No. 17

(Carrier File 6 (97-0169)

(TCU File 4.28 (7) SCL)

D. D. Bowman

and 30, and October 7, 1996, when it failed to call Clerk D. D.

Bowman, ID 181685, first as incumbent on assignment 5116 on duty

at 0700 hours.

pay at the punitive rate for each of the above-cited claims.

Claim No. 18

(Carrier File 6 (97-0170)

(TCU File 4.29 (7) SCL)

R. A. Long

failed to call Clerk R. A. Long, ID 501237, first as incumbent on

assignment 5109 on duty at 0700 hours.

at the punitive rate.

Claim No. 19

(Carrier File 6 (97-0171)

(TCU File 4.30 (7) SCL)

J. J. Parteleno

failed to call Clerk J. J. Parteleno, ID 520705, first as incumbent on

assignment 5307 on duty at 2300 hours.

pay at the punitive rate.

Claim No. 20

(Carrier File 6 (97-0172)

(TCU File 4.31 (7) SCL)

S. E. Wiedmer

Claim No. 21

(Carrier File 6 (97-0173)

(TCU File 4.32 (7) SCL)

J. D. Klein

failed to call Clerk J. D. Klein, ID 610135, first as incumbent on

assignment L301 on duty at 0700 hours.

Claim No. 22

(Carrier File 6 (97-0174)

(TCU File 4.33 (7) SCL)

M. C. Derricks

it failed to call Clerk M. C. Derricks, ID 518261, first as incumbent on

assignment 5323 on duty at 2300 hours.

pay at the punitive rate.

Claim No. 23

(Carrier File 6 (97-0175)

(TCU File 4.34 (7) SCL)

A. E. Chinn

11, 1996, when it failed to call Clerk A. E. Chinn, ID 522622, first as

incumbent on assignment F204 on duty at 1500 hours.

2.

Claim No. 24

(Carrier File 6 (97-0176)

(TCU File 4.35 (7) SCL)

D. G. Barber

16, 1996, when it failed to call Clerk D. G. Barber, ID 624191, first as

incumbent on assignment L305 on duty at 2300 hours.

at the punitive rate for each of the three (3) above-cited claims.

Claim No. 25

(Carrier File 6 (97-0177)

(TCU File 4.36 (7) SCL)

L. Rivers

3, 10, and 17, 1996, when it failed to call Clerk L. Rivers, ID 625599,

first as incumbent on assignment M302 on duty at 2300 hours.

at the punitive rate for each of the five (5) above-cited claims.

Claim No. 26

(Carrier File 6 (97-0178)

(TCU File 4.37 (7) SCL)

G. W. Morgan

when it failed to call Clerk G. W. Morgan, ID 157031, first as

incumbent on assignment 5312 on duty at 2300 hours.

pay at the punitive rate for each of the two (2) above-cited claims.

Claim No. 27

(Carrier File 6 (97-0209)

(TCU File 4.39 (7) SCL)

W. H. Bowling

Claim No. 28

(Carrier File 6 (97-0210)

(TCU File 4.40 (7) SCL)

D. D. Bowman

pay at the punitive rate.

Claim No. 29

(Carrier File 6 (97-0211)

(TCU File 4.41 (7) SCL)

M. T. Hughes

when it failed to call Clerk M. T. Hughes, ID 159181, first as

incumbent on assignment F103 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 30

(Carrier File 6 (97-0212)

(TCU File 4.42 (7) SCL)

M. T. Hughes

when it failed to call Clerk M. T. Hughes, ID 159181, first as

incumbent on assignment F103 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 31

(Carrier File 6 (97-0213)

(TCU File 4.43 (7) SCL)

M. T. Hughes

when it failed to call Clerk M. T. Hughes, ID 159181, first as

incumbent on assignment F103 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 32

(Carrier File 6 (97-0214)

(TCU File 4.44 (7) SCL)

D. A. Edney

it failed to call Clerk D. A. Edney, ID 609919, first as incumbent on

assignment L302 on duty at 2300 hours.

at the punitive rate.

Claim No. 33

(Carrier File 6 (97-0215)

(TCU File 4.45 (7) SCL)

R. A. Long

it failed to call Clerk R. A. Long, ID 501237, first as incumbent on

assignment S109 on duty at 0700 hours.

at the punitive rate.

Claim No. 34

(Carrier File 6 (97-0216)

(TCU File 4.46 (7) SCL)

W. H. Bowling

it failed to call Clerk W. H. Bowling, ID 616332, first as incumbent on

assignment L104 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 35

(Carrier File 6 (97-0217)

(TCU File 4.47 (7) SCL)

D. F. Kay

it failed to call Clerk D. F. Kay, ID 618478, first as incumbent on

assignment C301 on duty at 2300 hours.

at the punitive rate.

Claim No. 36

(Carrier File 6 (97-0354)

(TCU File 4.48 (7) SCL)

R. A. Long

Claim No. 37

(Carrier File 6 (97-0355)

(TCU File 4.49 (7) SCL)

M. T. Hughes

when it failed to call Clerk M. T. Hughes, ID 159181, first as

incumbent on assignment F103 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 38

(Carrier File 6 (97-0356)

(TCU File 4.50 (7) SCL)

M. T. Hughes

when it failed to call Clerk M. T. Hughes, ID 159181, first as

incumbent on assignment F103 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 39

(Carrier File 6 (97-039)

(TCU File 4.51 (7) SCL)

M. T. Hughes

when it failed to call Clerk Hughes, ID 159181, first as incumbent on

assignment F103 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 40

(Carrier File 6 (97-0358)

(TCU File 4.52 (7) SCL)

M. T. Hughes

when it failed to call Clerk M. T. Hughes, ID 159181, first as

incumbent on assignment F103 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 41

(Carrier File 6 (97-0359)

(TCU File 4.13 (7) SCL)

M. T. Hughes

when it failed to call Clerk M. T. Hughes, ID 159181, first as

incumbent on assignment F103 on duty at 0700 hours.

pay at the punitive rate.

Claim No. 42

(Carrier File 6 (97-0026)

(TCU File 4.13 (7) SCL)

R. A. Long

Carrier violated the Agreement on the dates identified in the original claims, when it failed to call Clerk R. A. Long, ID 501237, first as incumbent on assignment 5109, to protect work on his assigned rest days.

Carrier shall now be required to pay Clerk Long eight (8) hours' pay at the punitive rate for each of the dates cited in the above-cited seventeen (17) claims.

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.

The Crew Management Center in Jacksonville, Florida, was established in 1988. According to the Carrier, there were at the time of the claim submission, 206 regularly assigned Crew Dispatcher clerical positions, approximately 45 of which positions were Relief Crew Dispatcher positions; in addition, there were approximately 31 positions assigned to the Extra Board.

The dispute here under review concerns whether the Carrier was obligated to establish additional regular relief assignments, with the effect of requiring less frequent use of Extra Board employees to fill rest day assignments.

At the Referee Hearing on September 23, 1999, local representatives of the Carrier and the Organization indicated willingness to explore the practicality of establishing addi?tonal regular relief assignments. Such efforts resulted in the establishment of two additional regular relief assignments for the then existing 21 "tag days." No further agreement was reached, with the Carrier maintaining the impracticability of eliminating the remaining 11 tag days from the more than 200 crew calling positions.

As to the current situation, the Board is satisfied that it need provide no further resolution. What remains, therefore, is the resolution of a monetary remedy, if any, for the Carrier's earlier failure to establish additional relief positions.

Because of the continuing nature of the claim, the Board does not agree with the Carrier that the dispute is time-barred.

(1) All possible relief assignments, with rive days of work and two consecutive rest days, will be established to do the work necessary on rest days of assignments in six or seven day service, . . . ."

"(1) All possible regular relief positions shall be established pursuant to paragraph (f) of this rule."

"Extra boards will not be used to avoid establishing assigned new positions or to avoid abolishing existing assigned positions."

This provision specifically refers to work "which is not a part of any assignment." The Board finds it does not negate the Extra Board provisions quoted above, the thrust of which is the requirement to create assignments.

The Board concludes that the cited portions of Rules 18 and 19 placed the Carrier in violation of the Agreement. As noted at the outset, the parties cooperatively remedied the situation by the creation of two new relief positions. Whether it is "possible" to create further such positions cannot be determined by the Board.

The difficulty comes with the remedy sought by the Organization.

Claim No. 1 seeks compensation for the "Senior Available Clerk." The Board does not disregard the Carrier's discussion concerning the establishment of the Crew Management Center and the training and experience required of employees for this work. From the available record, the Board is unable to determine at what earlier point, if any, new relief positions would have been "possible." Thus, the identification of the appropriate "Senior Available Clerk" becomes uncertain, and there is no reasonable basis for assessment of a monetary remedy.

As to Claims 2-42 the remedy sought in each claim is for additional pay for a regularly assigned employee. If the Carrier had created additional relief positions at the outset of the claim in 1996, it would be employees added to the force who would have benefitted, and not the Claimants herein. The Board is required to remedy a loss where an Agreement violation is shown. It would be a penalty rather than a remedy to make payment to those employees whose hours would not have been affected had the additional relief positions been established at an earlier date. The Board's authority does not extend to that type of penalty.

The Board thus partially sustains Paragraph (1) of Claim No. 1, but necessarily denies compensation sought by the Organization. This conclusion is supported by the recent action taken by the parties at the Board's urging to create two additional regular relief assignments.

Employee Member's Concurring and Dissenting Opinion

to

Third Division Award No. 33945, Docket No. CL-34592

(Referee H. L. Manx, Jr.)

We concur with the Majority's conclusion that Carrier violated Rules 18 and 19 by failing to establish "all possible relief assignments" and then by filling the resultant vocancies by improperly utilizing the Guaranteed Extra Board. We must dissent, however, from the balance of the Majority's opinion.

Prior to the issuance of the Award, the Board urged the partisan advocates "to meet and confer for the purpose of determining what steps, if any, would be mutually acceptable to end the dispute on a prospective basis." Because the Employees had been trying since before the initial claim was filed to get the Carrier to meet for just this purpose - a fact which was welldeve we viewed as an attempt to mediate a solution which would avoid prolonging the violation (and thus Carrier's liability). The Board's urging was apparently sufficient to bring Carrier to the tabl and subsequently two relief positions were immediately established. That result, in itself, provided conclusive evidence that if not for Carrier's past recalcitrance, it would have been possible all along to establish at least two positions, thus substantiating a remedy of at least ten days pay per week for the entire period claimed. Thus, the Majority need not have determined, "Whether it is possible to create further such positions," in orderto conclude that some quantifiable damage had been done. Notwithstanding, we also proposed the establishment of two more positions, but Carrier refused to meet further after establishing the first two positions, a fact which the Majorit does not even mention.

The Majority further postulates that the remedy in Claims 2-42 is precluded by the fact that if Carrier had established relief positions, "...it would have been employees added to the force who would have benefitted, and not the Claimants herein." Such theory is absurd on its face, for if applied, the Employees could never prevail in any case brought on by a carrier's failure to maintain a sufficient work force-a causal factor in hundreds, if not thousands of cases which have already been decided in favor of the Employees. In short, we can't file claims on behalf of employees who are not yet in service, nor do we have to. The Rule we relied on in support of the remedy shows clearly and unambiguously that the incumbent who works the position five days per week should have been called, not the Guaranteed Extra Board. Indeed, the Majority's theory is further puzzling because if the Carrier had created the additional r positions, there obviously would have been no claim in the first instance.

The Employees voluntarily, and in a spirit of cooperation, participated in the Board's mediation proposal, which was specifically self-limited to resolution on a prospective basis. That term means "future." We did not intend for our participation in the establishment of two relief positions to become an excuse for the Majority to ignore the more than three and one-half years of proven past violations embodied by the claims before it. The result of the Majority's Award is that Carrier has violated the cited Rules with impunity and will no doubt do so again without hesitation or fear of redress.