PROPER OR IMPROPER CLAIMANT (28)

Third Division Award No. 10575 (LaBelle) 

"The essence of the claim by the Organization is for violation of the Rules of the parties' Agreement. The claim for the penalty on behalf of the individual claimant named is merely an incident thereto. That the claim might have been made in behalf of another having, as between them, a better right to make it, is of no concern to the Carrier. That fact does not relieve it of the violation and the penalty arising therefrom. No claim has been filed by such second trick operator: if he should, since he is represented by the Organization, Carrier could not be compelled to pay more than once. See Awards 2282, 5195, 4359 and 9334.

"The claim will be sustained solely in the interest of maintaining the integrity of the Agreement and as a penalty for what we believe was a violation thereof."

Third Division Award No. 17801 (Kabaker)

"We recognize that the senior operator could properly present a claim based upon the violation of his seniority rights, but we are exceedingly conscious of the fact that his failure to present a claim does not negate or bar the junior man from filing a claim based upon the violation of his seniority rights. Since the seniority rights of both employees are separate and distinct from one another, we find no support for this contention of the Carrier."

Fourth Division Award No. 2928 (O'Brien)

"Having found a violation of the Yardmasters Agreement during the period in question, we conclude that damages should be awarded even though no claimant suffered any monetary loss during this period."

Public Law Board No. 1790, Award 85 (Dolnick)

"But Carrier should not be permitted to violate provisions of the Agreement with impunity. This Board has no authority to order the Carrier to reestablish the covered Chief Clerk position. In the absence of such authority, a sustaining award without an assessment of a penalty is an exercise in futility. Carrier could continue to disregard this finding and contract violation. Where there is a wrong there is a remedy."

Fourth Division Award No. 4056 (Larney)

"We are persuaded from the record evidence that had Carrier properly administered the applicable Agreement Rule 5-A-2(m), there may have been a possibility, however remote, that the Claimant could have been reached to fill the Yardmaster position in question on the two (2) claim dates of October 20 and 21, 1979, whereas, employe Smolsky would never have been considered for this work at all. We are somewhat troubled by the fact Claimant is not the best employe on whose behalf the Organization could have initiated and pressed this claim, but we are more troubled by the specter of Carrier's violating the Agreement with impunity. Furthermore, we find greater support in previous Awards to favor a positive ruling for compensating a less than best Claimant than we do for refraining from imposing damages upon a Carrier where it has been determined Carrier has violated the labor Agreement. Therefore, based on Carrier's own admission it violated the Controlling Agreement by not properly filling the Yardmaster vacancy in question and notwithstanding the fact Claimant is not the best possible Claimant under the prevailing circumstances, we rule to sustain the instant claim and direct Carrier to pay the claim as stated."

Third Division Award No. 18557 (Ritter)

"Carrier next contends that since the named Claimant was on vacation and not available, no monetary award should be made even if the claim be sustained as to the violation. This question of monetary payment to an unavailable Claimant has also been passed on by this Board in favor of the Organization. See Awards 10575 (LaBelle) and 6949 (Carter). These Awards hold that one of a group entitled to perform the work may prosecute a claim even if there be others having a preference to it. The essence of the claim by the Organization is for Rule violation and the penalty Claim is merely incidental to it. The fact that another employe may have a better right to make the Claim is of no concern to Carrier and does not relieve Carrier of the violation and penalty arising therefrom.

"This Claim will be sustained in its entirety."

Third Division Award No. 6949 (Carter)

"The Claimant being regularly assigned in Group 1 of the Water Service Sub-Department, his seniority rights under Rule 5 (a) are confined to that group as long as his seniority permits him to hold a regular position in that group. His seniority can be exercised on a position in another group only in case of force reduction, displacement, voluntarily accepting an assignment of more than 30 days in a lower grade, or by bidding for bulletined vacancies on new positions under Rule 26. We necessarily conclude that Claimant had no seniority right to the work constituting the basis of the present claim. It is very doubtful, also, that Claimant was available to do the work. But the Organization says that we are not concerned with these matters if there was in fact an agreement violation and cites Awards 6019, 6136, 6158. We are in agreement with these awards which hold that one of a group entitled to perform the work may prosecute a claim even if there be others having a preference to it. The question here is whether or not one who has no right at all to perform the work may properly invoke the principle of these awards."