Referee Fred Blackwell


          Carrier Member: J. H. Burton Labor Member: S. V. Powers


          PARTIES TO DISPUTE:


                  BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES


                  VS.


                  CONSOLIDATED RAIL CORPORATION


          STATEMENT OF CLAIM:


          Claim of the System Committee of the Brotherhood that:


          (1) The Agreement was violated when the Carrier used Harrisburg Seniority District employes to perform track work on the Philadelphia Division Seniority District from July 15, 1985 through November 22, 1985 (System Dockets CR-2207-2239).


          (2) Because of the violation referred to in Part (1) hereof, the following listed claimants shall each be allowed ten (10) hours of pay at their respective straight time rates for each day of the violation and applicable overtime, travel time and lunch compensation:


          J. Griffin B. C. Mattson R. G. Shaffer

          L. Wilson R. W. Brown W. L. Stokes

          K. L. Donaldson T. P. Boast T. W. Evans

          F. Greenlee J. Urbanek D. C. Rhodes

          K. J. McConnell R. L. Coleman K. L. Barnes

          M. P. Mitchell F. E. Anderson C. H. Carroll

          C. Jones J. P. McGough, Jr. G. T. Lee

          C. Robertson B. S. King G. Hasbrouck

          W. J. Duff T. J. Sutton K. F. Adams

          D. P. Cantolina J. M. Hubler R. W. Schmitt

          T. R. Johnson R. A. Airhart D. Degand


          FINDINGS:


          Upon the whole record and all the evidence, and after hearing on August 17, 1989, in the Carrier's Office, Philadelphia,

FRED BLACKWELL Pennsylvania, the Board finds that the parties herein are Carrier
 ATTORNEY AT LM and Employees within the meaning of the Railway Labor Act, as

 19129 ROMAN WAY 1
 GArTHERSBURG,
 MARYLAND 20879
 (301) 977-5000
          i


                    SBA No. 1016 / Award No. 41 - Case No. 41


            amended, and that this Board is duly constituted by agreement and has jurisdiction of the parties and of the subject matter.


                  OPINION

                  The Claimants, at the times herein ,pertinent, held sen-

iority on the Philadelphia Division seniority District, and were
 regularly assigned members of Track Department Gangs (Gang 561611
 and Gang 56164) employed on the Philadelphia Division Seniority
 District. The Claimants allege that the Carrier violated Rules ail
 and 4 of the Schedule Agreement when the Carrier assigned work at!
 locations within the Philadelphia Division Seniority District, to'
 thirty-three (33) members of Tie Renewal Gang TK-134, who hold
 seniority on the Harrisburg Seniority District and who do not hold
 seniority on the Philadelphia Division Seniority District. The
 target Employee members of Tie Renewal Gang TK-134 were used in
 the allegedly impermissible work from July 15 - November 22, 1985.
 - The remedy requested is that each Claimant be allowed ten (10)
 hours straight rate pay for each day of the violation and appli
 cable overtime, travel time, and lunch compensation.
 The organization's position is that the claims should be
 sustained on the grounds that the Carrier was prohibited by Rule
 3, Section 4. (a) (b) (c) (e) and (f), and Rule 4, Sections 1. and
 5., of the Agreement from unilaterally assigning Gang TK-134 from
 the Harrisburg Seniority District to the performance of work in
 the Philadelphia Division Seniority District: that the Carrier did
 FRED BLACKWELL not have an Agreement with the District Chairman permitting the
 ATTORNEY AT LAW
 19729 ROMAN WAY 2
 GAITHERSBURG,
 MARYLAND 20879
 (3011 977-5DOO
                    SBA No. 1016 / Award No. 41 - Case No. 41


          use of Gang TK-134 on work in the Philadelphia Division Seniority District; and that even if such an Agreement had been made orally between the Carrier and the District Chairman, the Agreement would not be enforceable because the District Chairman lacks authority to make such an Agreement under the parties' Schedule Agreement. The Organization submits further that the fact that the Claimants were on duty and under pay during the claim period does not bar their claim for compensation for the work performed by the members of Gang TK-134.

          The Carrier's position is that the grievance should be denied on the grounds that, while the carrier recognizes that it, could not unilaterally transfer Track Employees from the Harrisburg Seniority District to work on the Philadelphia Seniority District, the Carrier asserts that it worked out an arrangement with the District Chairman to make the transfer; and that such arrangement should serve to estop the General Chairman from repudiating that arrangement in order to progress the herein compensatory claims of the Trackmen on the Philadelphia Seniority District. The Carrier says further that if the Carrier is found to be in violation of the Agreement by its action of assigning Employees from the Harrisburg Seniority District to perform work on the Philadelphia Seniority District, the Claimants should not be allowed compensation because they were on duty and under pay during the claim period.


FRED BLACKWELL
 ATTORNEY AT LAIN

 19129 ROMAN WAY 3
 GAITHERSBURG,
 MARYLAND 20879
 (301) 9n-soon
                    SBA No. 1016 / Award No. 41 - Case No. 41


          After due study of the record as a whole, including the arguments presented by the parties' submissions in support ofi


          i their positions in the case, it is concluded that the members of'I

                                                                i

          Gang TK-134 from the Harrisburg Seniority District did not hold', seniority on the Philadelphia Seniority District when this dispute., arose and that the District Chairman lacked authority to agree to the Carrier's use of Gang TK-134 in the Philadelphia Seniority District. Accordingly, it is found on the whole record that it was contractually impermissible for the Carrier to assign the members of Gang TK-134 to the performance of work at locations in the Philadelphia Seniority District in the period July 15 - November 22, 1985; and that the Carrier's action of using Gang TK-134 to perform work in the Philadelphia Seniority District deprived the Claimants of contractually secured work opportunities in the Philadelphia Seniority District, in violation of Rule 3, Section 4. (a) (b) (c) (e) and (f) and Rule 4, Sections 1. and 5. of the applicable Agreement.

          Having made this finding of an Agreement violation by the carrier, we turn now to the consideration of the Carrier defenses that compensation should be disallowed on the ground that the use of Gang TK-134 was pursuant to the Carrier's understanding with the District Chairman, and/or on the ground that the Claimants were on duty and under pay during the period of the Carrier's use


          of Gang TK-134 on the Philadelphia Seniority District.


FRED BLACKWELL
 ATTORNEY AT LAW In assessing this first ground, inasmuch as the Carrier
 19129 ROMAN WAY 4
 GAITHERSBURG,
 MARYLAND 20879
 (301) 977.5000
 SBA No. 1016 / Award No. 41 - Case No. 41

 acknowledges that it had no contract authority to make a unilateral assignment of Harrisburg Seniority District Employees to perform work in the Philadelphia Seniority District, the Board must first assess the fact basis of the Carrier's contended Agreement with the District Chairman. Several Carrier Officials attested to the fact that such an Agreement was made, whereas, the District Chairman in a February 25, 1986 letter, (Organization Exhibit A-6) denies same, stating that his sole involvement in the matter was "to guarantee that employees would not be compelled to travel out of Division if they did not choose to."
 The assessment of these conflicting fact allegations is that the involved Carrier Officials initially had a good faith', belief that an understanding had been reached with the District! Chairman that allowed the Carrier to assign members of Gang TK-134 from the Harrisburg Seniority District across seniority district lines to perform work at locations in the Philadelphia Seniority District. The Carrier had knowledge, however, that only the General Chairman and not the District Chairman, had authority to make such an Agreement/Understanding and hence the Carrier acted at its

 peril in deciding to go forward on the
 curred between Carrier Officials and

 Therefore, when the General Chairman, b 1985, registered his objection to, and

 respecting, the Carrier's use of Gang

 the Philadelphia Seniority District, the Carrier had no basis for 5

 FRED BLACKWELL
 ATTORNEY AT LAW

19129 ROMAN WAY

GAITHERSBURG,

MARYLAND 279

pp 97-5000


y

strength of what had octhe District Chairman. letter dated August 3,


filed the herein claims

 TK-134 to perform work in
                    SBA No. 1016 / Award No. 41 - Case No. 41


          continuing the use of the members of Gang TK-134 on work projects in the Philadelphia Seniority District.

          The Board in these circumstances finds that although the Carrier arguably had an acceptable reason for instituting the use of Gang TK-134 in the Philadelphia Seniority District on July 15, 1985, such reasons ceased to exist when the General chairman protested such use of Gang TK-134 by his August 3, 1985 letter (Organization Exhibit A-1). Accordingly, the Claimants' demand for compensation is estopped for the period July 15 - August 3, 1985.

          Beyond this the Board has considered and finds unpersuasive the Carrier's argument that notwithstanding the Board finding of an Agreement violation by the Carrier, the Claimants should not be awarded compensation for the work performed by Gang TK-134, because the Claimants were on duty and under pay during the period that the Gang was used at work locations on the Philadelphia Seniority District.

          Prior authorities on this facet of the case have reached conflicting results. A number of authorities cited by the carrier hold that notwithstanding a contract violation, compensation is allowable only where Claimants show a monetary loss from their regular work assignments in connection with the violation. Second Division Award 5890 and Third Division Award 18305. Contra authorities have ruled that full employment does not negate a compensatory award in situations where there is valid need to pre-


FRED BLACKWELL serve the integrity of the Agreement.
 ATTORNEY AT LAW

 19129 ROMAN WAY 6
 GAITHERSSURG,
 MARYLAND 20879
 (301) 9n.50oo
          I

                    SBA No. 1016 / Award No. 41 - Case No. 41

          i


                  Important seniority rights are in question in this case,

          I

          )because an Employee whose name is on a seniority roster in any

greement designated seniority district, owns a vested right to l
 erform work in that seniority district that accrues to his stand-!
 l ing and status on the district seniority roster. The Seniority
 District boundaries established by the parties' Agreement to pro
 I ect and enforce that right, have been improperly crossed by they
 I
 arrier action, resulting in the Claimants loss-of work opportuni
 ties, and hence the principle that compensation is warranted in i
 I
 rder to preserve and protect the integrity of the Agreement, is
 pplicable to this dispute. For similar rulings between these)
 same parties see Award No. 34 of Special Board of Adjustment No.
 1016 (07-28-89) and Award No. 7 of Public Law Board No. 3781 (02
 12-86).
 The need to preserve the integrity of the contract does
 of extend to the herein claims for overtime, travel time, and)
 lunch compensation, however, and hence these elements of cohftpensa
 ion are denied.
 In view of the foregoing, and based on the record as a
 hole, the claim is sustained (as provided herein) for the period
 ugust 4 - November 22, 1985, but the claims for compensation for
 vertime, travel time, and lunch compensation are denied. Claim
 ants shall share an equal amount of the aggregate straight-time
 ours worked by the target employees of Tie Renewal Gang TK-134,
 FRED BLACKWELL
 ATTORNEY AT LM or the period August 4 - November 22, 1985.
 19129 ROMAN WAY 7
 GAITHERSBURG,
 MARYLAND 20879
 1201) 977.5000
          SBA No. 1016 / Award No. 41 - Case No. 41


This Award will not be a precedent except in circumstances that are the same as the particular circumstances of this case are present.

 WARD:

        Claims sustained in part and denied in part as per the opinion.

        The carrier shall comply with this Award within thirty (30) days from the date hereof. BY ORDER OF SPECIAL BOARD OF ADJUSTMENT NO. 1016


                Fred Blackwell, Neutral Member


S. V. Powers, Labor Member J H. Burton, Carrier Member

 xecuted on FEB 0) ~~1~

 Conrail\1016\41-41.121

 FRED BLACKWELL
 ATTORNEY AT LAW

 19129 ROMAN WAY g
 GAITHERSBURG,
 MARYLAND 20879
 (sot) 9n.saao