YARDMASTER DEPARTMENT AWARDS

LOSS OF WORK OPPORTUNITY (44)

AWARD # REFEREE RAILROAD
Second Division Award 1803 Carter Nashville Chatt & St Louis
Third Division Award 11450 Coburn Pittsburgh & West Virginia
Third Division Award 11701 Engelstein Louisville and Nashville
Third Division Award 11937 Dorsey Southern Railway
Third Division Award 12374 Dolnick Galveston Houston & Henderson
Third Division Award 16830 Ritter Illinois Central
Third Division Award 16946 House Louisville and Nashville
Third Division Award 17093 Criswell Norfolk and Western
Third Division Award 17108 Cartwright Central of Georgia
Third Division Award 17319 Devine Texas and Pacific
Third Division Award 18287 Dorsey Seaboard Coast Line
Third Division Award 18288 Dorsey Seaboard Coast Line
Third Division Award 19337 Edgett Illinois Terminal
Third Division Award 19354 Cole Illinois Terminal
Third Division Award 19552 Edgett Kansas City Terminal
Third Division Award 19846 Hayes Kansas City Terminal
Third Division Award 20562 Blackwell Baltimore and Ohio
Third Division Award 20754 Edgett Burlington Northern
Third Division Award 21340 Blackwell Burlington Northern
Third Division Award 21534 Lieberman Burlington Northern
Third Division Award 21751 Caples Western Pacific
Third Division Award 29232 Fredenberger Elgin Joliet & Eastern
Third Division Award 31752 Mikrut Consolidated Rail Corp

Second Division Award No. 1803 (Carter)

"The record shows that claimants were working on regular assignments during the time the work was done. From this it is argued that they suffered no damage. If this be so, the carrier by reducing forces or refusing to employ an adequate number of employes could circumvent the agreement with impunity. It is the function of the organization to police the agreement and protect the contract rights of the employes it represents. When work is lost to the craft, a recovery for such lost work may be had. It may be that the claimants named would have been required to work overtime if the work had been given them or that, as here contended, they could not have performed it at all if they worked their regular assignments. But this does not excuse the contract violation. It is the carrier and not the organization that has the means to marshall its forces to avoid such contingencies. There can be only one recovery for the breach and it may not be defeated because carrier kept its employes working on other work during the time the contracted work was performed."

Third Division Award No. 11450 (Coburn)

"Carrier's defense that covered employes were not available to perform the work because of other assignments and thus suffered no damage does not shield it from liability under the Agreement. We concur in the reasoning and conclusions of Award No. 1803, Second Division, on this point..."

Third Division Award No. 11701 (Engelstein)

". . . It is not enough to recognize the breach without expecting the violator to accept the consequences for its act. We, therefore, cannot sustain Carrier's position that Claimant must show that he `was in some manner adversely affected by the action of the Carrier' for this factor is irrelevant an distracts attention from the real issue of the admitted violation of the Agreement. The argument that compensation to Claimant would be in the nature of a penalty is likewise extraneous, for it brushes aside the sanctity of the Agreement. . . ."

Third Division Award No. 11937 (Dorsey)

"Carrier confuses `damages' and `penalties.' While monetary `damages' awarded are sometimes loosely referred to as `penalties' the terms are technically distinct. Technically, in contract law, monetary `damages' make whole a person injured by violation of an agreement; `penalties' are the assessment of a fine over and above damages suffered. Monetary `penalties' are imposed as punishment for a violation of a contract with the objective of deterring like future conduct. . . ."

Third Division Award No. 12374 (Dolnick)

"A collective bargaining agreement is a joint undertaking of the parties with duties and responsibilities mutually assumed. Where one of the parties violates that Agreement a remedy necessarily must follow. To find that Carrier violated the Agreement and assess no penalty for that violation is an invitation to the Carrier to continue to refuse to observe its obligations. If Carrier's position is sustained it could continue to violate the Scope Rule and Article I of the Agreement with impunity as long as no signal employes were on furlough and all of them were actually at work. For economic or other reasons, Carrier could keep the Signalmen work force at a minimum and use employes not covered by the Signalmens' Agreement to perform signal work. No actual damages could ever be proved. This is not the intent of the parties nor the purpose of the Agreement."

Third Division Award No. 16830 (Ritter)

". . . In absence of proof to the contrary, the work involved in this dispute belonged to the Claimants and was wrongfully taken from them. Even though they were fully employed at the time this work was performed, there is no proof they could not have performed this work at other times. Therefore, they are entitled to the monetary claim. See Awards 16338, 16335, 15874, 16520, 14004, and 14982 by this referee."

Third Division Award No. 16946 (House)

"By its violation, Carrier deprived Claimant of the opportunity to perform and to be paid for the work, possibly at overtime rates. We do not see an award to Claimant of pay for the time spent on the involved work as a penalty, like a fine for passing a traffic light, but rather as part of redressing the damage done by Carrier's violation."

Third Division Award No. 17093 (Criswell)

". . . We do not agree that because he was otherwise employed during the period in dispute he is not entitled to the requested pay, which is so granted."

Third Division Award No. 17108 (Cartwright)

"A violation of this contract is not limited to lost earnings of Claimants, but the loss of opportunities of earnings must also be considered."

Third Division Award No. 17319 (Devine)

"As to the Claimants being employed full time, the Board has held in numerous recent awards that where there is a loss of earnings opportunities, such as here involved, the employes should be compensated at the straight time rate. Awards 16430, 16521, 16608, 17108, among others."

Third Division Award No. 18287 (Dorsey)

"As to paragraph 2 of the Claim, Carrier contends it should be denied because Claimant suffered no loss (compensation) in that they worked during the entire period in which the contracted out work was being performed."

* * *

". . . Carrier's violation of the Rule damaged Claimants in that it wrongfully divested Claimants of contractual rights. For reasons stated in the following Awards we will sustain paragraph 2 of the Claim: Awards No. 11937, 12785, 13832, 14004, 15689, 15888, 16009, 16430, 16520, 16521, 16608, 16734, 16796, 16830, 17093, 17108, 17319 and 17931."

Third Division Award No. 18288 (Dorsey)

"This dispute involves the same parties, Agreement Rule and pivotal issues as in Award No. 18287. For reasons stated in that Award we will sustain the Claim."

Third Division Award No. 19337 (Edgett)

"Damages for violation of a collective bargaining agreement should adhere to a `make whole' principle. As is the case with other general rules this one is subject to exception. In the instant case refusal by the Board to award damages would effectively rewrite the Agreement, for in practice it would then say that Carrier is at liberty to contract out work reserved by the Agreement to its employes at anytime all employes are fully employed. The Agreement does not so state, and the Board should not interpret it in a manner which makes it do so. There was unquestionably lost work opportunity to Claimants in the decision to use outside forces to perform work which is reserved to them by the Agreement. It is the Boards' obligation and right, to provide a remedy for the loss. . . ."

Third Division Award No. 19354 (Cole)

"We have carefully examined the Board's findings in Award 19337, and we will follow Award 19337 which involved these same parties and similar issues and sustain this claim for as was stated in Second Division Awards 6113 (Simons) and 6308 (Cole)."

Third Division Award No. 19552 (Edgett)

"The Board finds that Carrier violated the Agreement when it contracted with outside forces to repair the roof of Union Station; work which was reserved to Claimants by the Agreement. This resulted in a clear loss of work opportunity to Claimants and for this loss the Board may, and should, provide a remedy."

Third Division Award No. 19846 (Hayes)

"With respect to Carrier's contention that Claimants were `fully employed' when the disputed work was performed and therefore suffered no monetary loss, the Board would make two observations. First, this seems to be a new defense, not raised on the property and not properly before the Board. Second, even if a proper defense, to support it Carrier would be required to show that Claimants could not have performed the contested work during overtime hours or on weekends and this it has failed to do."

Third Division Award No. 20562 (Blackwell)

". . . We further conclude that such violation deprived the Claimants of an opportunity to perform work secured to them by agreement, and thus the Carrier's assertion that most of the Claimants worked on the claim date, plus overtime, and declined overtime during the claim period is no defense. The Claimants are the employees who would have performed the work if the agreement had been followed; by a conscious decision of the Carrier, the Agreement was not followed and thus the Claimants are entitled to a compensatory award for the loss of their work-opportunity. . . ."

Third Division Award No. 20754 (Edgett)

". . . However, after the employees had established a prima facie case, it fell to Carrier to establish, by evidence with probative value, what the employees were doing on the dates in question. It did not undertake to do so. The failure of proof, under the facts and circumstances present here, falls not on the employees, but on Carrier.

"The claim will be sustained for the loss of work opportunity suffered by Claimants. . . . "

Third Division Award No. 21340 (Blackwell)

". . . With regard to compensation, numerous prior authorities have held that an award of compensation is appropriate for lost work opportunities notwithstanding that the particular claimants may have been under pay at the time of the violation. . . ."

Third Division Award No. 21534 (Lieberman)

"Carrier asserts that even if the claim had merit, this Board is without authority to award damages and Claimant has suffered no loss of earnings. Recognizing that a divergence of views exist, we have dealt with the identical issue involving the same parties on a number of past occasions (Awards 19924 and 20338 for example). As we have stated previously, Claimant herein lost his rightful opportunity to perform the work and therefore is entitled to be made whole for that loss."

Third Division Award No. 21751 (Caples)

"The Carrier also asserts 'the monetary payment being sought by the Organization is improper. Claimant was fully employed on the dates in question and suffered no loss of earnings.' Thus under the principle that a Claimant is limited to the actual pecuniary loss necessarily sustained no monetary payment is due.

"The question to be decided here, however, is not whether the Claimant suffered actual pecuniary loss, but rather there having been an improper assignment of work within the terms of the Parties Agreement of work to which the Claimant was entitled, is he without remedy?

"The Organization asserts Claimant under Rule 3 was entitled to perform the work in his seniority district. There is no evidence to the contrary as Carrier did not have the authority to transfer the work, as it contends. The Organization submits the proper remedy is to pay the Claimant the rate for the work performed citing many awards, essentially, assessing such a penalty for violation, citing, among other Third Division Award 685:

"`The Division ... found that the Carrier made an improper assignment ... Accordingly, the claim, although it may be described as a penalty is meritorious and should be sustained. The Division quotes with approval this statement from the Report of the Emergency Board created by the President of the United States on February 8, 1937:

"`"The penalties for violations of rules seem harsh and there may be some difficulty in seeing what claim certain individuals have to the money to be paid in a concrete case. Yet experience has shown that if rules are to be effective, there must be adequate penalties for violation."'

"The Organization also cites, Third Division Award 20310.

"Seniority rights are of prime importance in the bargaining relationship and are to be tampered with at Carrier peril."

Third Division Award No. 29232 (Fredenberger)

". . . We agree with the Organization that Claimants are due compensation despite the fact they worked and received compensation on the Claim dates. Claimants in fact did lose work opportunities due to the Carrier's violation of the Agreement, and this type of Claim long has been viewed as a proper device to police the Agreement."

Third Division Award No. 31752 (Mikrut)

"Given that we have found a violation of the Scope Rule, we next must consider whether an award of damages is appropriate in this instance.

"The Organization argues that the Third Division has repeatedly determined that it is invested with authority to award monetary damages even though the actual Claimants suffered no actual monetary loss.

"The Carrier argues that ample precedent exists which support its view that the Claimants mush suffer actual damages in order to be compensated in accordance with the claim otherwise, the Carrier is forced to pay a penalty payment authorized by the Agreement. In Third Division Award 26593, we pondered the divergent views of awarding damages to fully employed Claimants.

"'Having concluded that we have jurisdiction to consider the issue of damages, we must consider the carrier's argument that even if, assuming arguendo, the agreement was violated, claimant suffered no loss of earnings and therefore the Board has no authority to award damages.

"'On this issue, too, there are strong opposing views. Many awards support the proposition that even where there is a contract violation, the claim will not succeed unless there is a showing of actual loss of pay on the claimant's part. The opposing line of cases finds that to limit damages, in effect, gives a carrier a license to ignore the contract provisions.

"'A third viewpoint which has also been expressed is the conclusion that each case must be considered on its merits taking into consideration such factors as intent or motive on the part of the carrier.

"'We find, as did the Board in Third Division Award No. 23928, that to determine intent or motivation on the part of the carrier, would "only add a new element of uncertainty in the relationship of the parties" and require the Board to rest on that somewhat slippery slope of subjective considerations. We are of the view that a better purpose is served in the long run which clearly provides a guideline for the parties in the future. With that in mind, we have concluded that there is no prohibition from awarding damages where there is no actual loss of pay. That finding is based on our belief that in order to provide for the enforcement of this agreement, the only way it can be effectively enforced is if a claimant or claimants be awarded damages even though there are no actual losses.

"'Numerous other awards have reached the same conclusion, holding that where, as here, claimants by carrier's violation lost their rightful opportunity to perform work, they are entitled to a monetary claim. See Third Division Awards 21678, 19899, 19924, 20042, 20338, 20412, 20754, 20892. Accordingly, we will rule to sustain the claim in its entirety.'

"Applying the findings of Third Division Award 26593 establishing a monetary remedy for fully employed claimants alleging Scope Rule violations, we will sustain this claim in its entirety. We find as we did in Award 26593, that there is no prohibition from awarding damages where there is no actual loss of pay and that the only way the Scope Rule can be effectively enforced is to award damages even though there is no actual loss."


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Last modified: April 29, 2005