Case No. 1.s_
 NMB No. 1 532


CONSOLIDATED RAIL CORPORATION
 VS.
 BROTHERHOOD OF LOCOMOTIVE ENGUNTEERS
STATEMENT OF .T .AIM: Claim of Engineer D. J. Halligan for payment
 of one day's penalty on December 7, 1988,
 account of being required to work with an
 engine that was not equipped with a toilet.
 Article G-m-7.
 STATEMENT OF FACTS: On December 7, 1988, Engineer D. J. Halligan
 was assigned on a traveling road switcher (WNCH-20), reporting for duty at
 New Haven at I O:OOAM. His assigned equipment for that task was yard
 switcher unit 9403, which was not equipped with a toilet. Claimant
 performed as direct; thereafter he submitted a penalty timecard claiming a
 day's pay for performing service with a yard switcher that was not equipped
 SBA No. 894 Award No. 1532 Page No. 2

 with a toilet. Such claim was timely denied and progressed in the normal manner, subsequently being appealed to this Board for final resolution. RELEVANT CONTRACT PROVISION: Article G-m-7 - Equipment on Engines reads as follows:



FINDINGS: Under the whole record and all the evidence, after hearing, the Board finds that the parties herein are carrier and employee within the meaning of the Railway Labor Act, as amended, and this Board is duly constituted by agreement and has jurisdiction of the parties and subject matter. The carrier rejects any contractual responsibility, arguing that engine 9403, used by claimant, was a "yard switching locomotive" regularly assigned in "traveler service" and therefore outside the scope of Article Gm-7's (supra) reference to "road locomotives:" We are cautioned that our jurisdiction is limited and does not include the authority to issue decision which alters the parties' written word, or to award punitive damages.
 SBA No. 894 Award No. 153? Page No. 3

 As regards the carrier's allegation concerning the application of the specific terms contained in the agreement, we believe such allegation tends to emphasize form over substance. Carried to its logical conclusion, the carrier could essentially nullify its negotiated contractual obligation (provide operative toilets) by the systematic replacement of all "road locomotives" with "yard switchers." The spirit and implied intent of the language is to provide toilet facilities for engine crews or road assignments. Clearly the carrier did not comply with such contractual mandate on the date in question, and there is no allegation or evidence that this was an unavoidable or "emergency" assignment.
 As regards the issue of damages, we find substantial support in both the cited railroad awards and other judicial decrees regarding the inseverable correlation between contractual "rights" and "remedies."
 SBA No. 894
 Award No. 15;2
 Pagc No. 4

 AWARD: Claim sustained based on circumstances involved. Carrier is

 directed to implement this award within 30 days of the effective date hereof.
P. C.P. C. POKER, Carrier Member . . ', ., Organization Member
 I/T ~~10 ~ V
 DATt


This Board has progressed from an award of two hours' pay because the Carrier did not show that the unit in question was a yard locomotive to an award of eight hours' pay when the Carrier went to great lengths to prove that the unit in question was a yard locomotive. Thus, this award reverses the direction already established by this Board not only with respect to whether a penalty is appropriate, but also with respect to the penalty amount for actions which clearly were neither willful nor wanton violations of the Collective Bargaining Agreement. I Dissent.

                      40

                        Peter C. Poirier

                        Carrier Member