Award No. 1
Case No. 1
Brotherhood of Maintenance of Way Employees
and
CSX Transportation, Inc. (Formerly the Baltimore
and Ohio Railroad Company)
STATEMENT OF
Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement when it assigned or
otherwise allowed C&O Railroad employes M. A. Lewis and O.
McKinney to perform Maintenance of Way work on the B&O Ohio
South Seniority District between Mile Posts 56 and 76
beginning May 10 through 21, 1993 [System File B-TC-8023/12
(93-1136) BOR].
2. The Carrier violated the Agreement when it assigned or
otherwise allowed C&O Railroad employes M. A. Lewis and O.
McKinney to perform Maintenance of Way work on the B&O Ohio
South Seniority District between Mile Posts 56 and 76
beginning May 10 through 21, 1993 [System File B-TC-8024/12
(93-1169)].
3. As a consequence of the violation referred to in Part
(1) above, Messrs. C. D. McCoy and R. L. Boyer shall each be
compensated, at the Class A Machine Operator's time and one
half rate of pay, for an equal proportionate share of the
eighty-four and one-half (84.5) overtime hours expended by
the C&O Railroad employes in the performance of the work in
question.
4. As a consequence of the violation to in Part (2) above,
furloughed employes J. Freeman and C. F. Freeman shall each
be compensated, at the Class A Machine Operator's rate of
pay, for an equal proportionate share of the one hundred
twelve (112) straight time hours expended by the C&O
Railroad employes in the performance of the work in
question, plus credited with days for vacation
"qualification, one (1) month for retirement and all other
benefits."
FINDINGS:
This Board, upon the whole record and all of the evidence, finds
and holds as follows:
1. That the Carrier and the Employee involved in this
dispute are, respectively, Carrier and Employee within the
meaning of the Railway Labor Act, as amended
and
That the Board has jurisdiction over this dispute.
The record indicates that the parties settled Claim 2 and Claim 4
prior to the meeting of this Board. Accordingly, this Board only
will address Claim 1 and Claim 3. The record further indicates
that a violation occurred as reflected in Claim 1.
In this regard, the Union cites extensive precedent and asserts
that the Claimants (in Claim 3) should receive overtime
compensation to make them whole for the applicable loss of work
opportunities at the overtime rate of pay. The Carrier also
cites extensive precedent arid urges that straight-time
compensation constitutes such a make-whole remedy for work not
performed and that granting overtime compensation to the
Claimants would constitute a penalty, rather than merely a makewhole remedy. In the instant matter the record indicates that
the wrongfully assigned employees received overtime compensation
for performing the disputed work. The record omits any
indication that the Claimants were not available to perform the
disputed work, were not qualified to perform the disputed work,
or had not qualified for overtime on the relevant dates. On t
basis, the proper make-whole remedy requires the Carrier to
compensate the Claimants at the applicable overtime rate of pay.
In this context, the overtime remedy does not constitute a
penalty because the Claimants lost the opportunity to work
overtime and the granting of overtime reasonably approximates the
actual damages that the Claimants suffered for the contractual
violation.
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AWARD:
The Claim is sustained in accordance with the Opinion of the
Board. The Carrier shall make the Award effective on or before
30 days following the date of this Award.
Robert L. Douglas
Chairman and Neutral Member
Donald tBartholcim
Employee~Member
Dated:
Patricia A. Madden
Carrier Member