AWARDS 70 - CLAIMS PAID FOR AGREEMENT VIOLATION EVEN THOUGH CLAIMANT WAS FULLY EMPLOYED AND LOST NO TIME

Fourth Division Awards No. 1835 & 1836 (Weston)
Interpretation No. 1

"Carrier's second point is a new issue raised for the first time in this Interpretation proceeding and no provision has been made in Awards 1835 and 1836 for deduction of interim earnings of the claimants. These are not disciplinary or similar individual employe situations but cases where the entire Yardmasters' Agreement was affected adversely by serious violations. The Agreement has been breached by the removal from its coverage of compensable work that remained to be performed and thereafter was performed by non-yardmasters. If violations of this nature were not enforced strictly, it would be an easy matter to deprive a collective bargaining agreement of much of its meaning and to avoid compliance with benefit and other contract provisions that attach to work embraced by the agreement. Under the circumstances, payment for work wrongfully removed from the Yardmasters' Agreement must be made, without deduction for interim earnings, to maintain the validity of the Agreement and enforce its provisions. This is a sound principle and, although unanimity on the point is lacking and it is at variance with Awards 1897 and 1898 where the question was not put in issue by the Organization, it is consistent with numerous prior awards (e.g. Third Division Awards 6465, 5243, 3963, 2920 and 2838) and in furtherance of the national policy expressed in the Railway Labor Act and the Federal legislation to promote stability in labor-management relationships."

Second Division Award No. 4489 (Seidenberg)

"With regard to the issue of awarding damages, this Division must take cognizance that many awards of this Division as well as that of the Third Division, some issued quite recently, have held that when work is improperly given to one not contractually entitled to it that the claimant, who would have otherwise received the work, may be awarded the pro-rata rate for the job for which he was not properly called, even though he was employed at another job during the time in controversy. The Divisions have held by a preponderance of their awards that sanctions may be imposed on the wrongdoer in order to secure compliance with the terms of a labor agreement even when the agreement does not explicitly provide for the imposition of sanctions. See: Awards No. 4322 (2nd Division) and Award No. 11701 (3rd Division)."

Third Division Award No. 3220 (Carter)

"The inference that Claimants are in no position to make their claim because they were working their regular assignments for a part of the period during which the work in question was performed is not tenable. The claim is for a penalty for the contract violation. The payment of the claim absolves the Carrier from further obligation to pay. The claim of no other employe having been made, the Carrier is not required to determine the rights of employees as between themselves to the fund. An affirmative award is required."

Third Division Award No. 5893 (Daugherty)

"Whether the Carrier should be compelled to pay a day's wages for time not worked and whether Johnson actually suffered or might be expected later to suffer inconvenience and pecuniary loss from the mistake that was made are questions of equity that, as this Board has frequently held, must yield to the question of whether or not the applicable provisions of the agreement were violated. A technical violation having occurred, we feel bound so to rule.

"There remains the issue as to whether, in the light of the circumstances of this case and of the intent of the relevant provisions of the agreement, the Carrier should be required to pay the claimed day's wages to the Employe. We think that we must so rule. If violations go unpunished, there may be insufficient incentive to avoid repetitions thereof."

Third Division Award No. 6063 (Wenke)

"Carrier contends that the claim should be disallowed because none of the claimants lost any time as a result of this company doing the work. This claim is primarily to enforce the scope of the agreement and not for work performed. If the scope has been violated then a penalty is imposed to the extent of the work lost. This is done to maintain the integrity of the agreement. As to who gets the penalty, that is but an incident to the claim itself and not a matter in which the carrier is concerned for if the agreement is violated, it must pay the penalty therefor in any event."

Third Division Award No. 6284 (Wenke)

"It would appear that the work was performed while claimants were on duty. Just what significance that fact would have on the claim is not made apparent. This is not a claim based on a contention that claimants did not work the full time of their regular assignments. It is a claim based on the contention that Carrier removed from the Clerks work, which by their Agreement with Carrier, they had a right to perform. Once it has been determined that such a violation has taken place then, to make the Agreement effective, Carrier must pay for the work lost. Who the Organization names as claimants to receive pay therefor is only incidental to such a claim as long as they are within the class who would have a right to perform the work. See Award 2282 of this Division."

Third Division Award 9545 (Bernstein)

"The Carrier contends that no monetary award should be made because the Agreement provides for none. The Agreement contains no specific provision for remedies to be applied in the event of breach.

"That there was a breach is clear. It was a substantial one involving an important term of the Agreement. Carrier obtained hours of work from a Signalman to which it was not entitled under the terms to which it had agreed.

"We believe that there is ample precedent for a money award in vindication of the Agreement even in the absence of a provision for damages. In Award 6063 (Wenke) it was said:

"`Carrier contends that the claim should be disallowed because none of the claimants lost any time as a result of this company doing the work. This claim is primarily to enforce the scope of the agreement and not for work performed. If the scope has been violated then a penalty is imposed to the extent of the work lost. This is done to maintain the integrity of the agreement. As to who gets the penalty, that is but an incident to the claim itself and not a matter in which the carrier is concerned for if the agreement is violated, it must pay the penalty therefore in any event.'"

Third Division Award No. 9759 (LaDriere)

"The Carrier is correct in asserting that no loss of pay was suffered by anybody, but this same point was dealt with by Referee Wenke (Award 6063) where it was said that the claim is primarily to enforce the scope of the agreement and not for work performed, that if the scope has been violated then a penalty is imposed to the extent of the work lost; that this is done to maintain the integrity of the agreement and that as to who gets the penalty is but an incident to the claim and not a matter in which the Carrier is concerned. This view has been followed in a great number of awards one of the most recent of which is Award 9545 by Referee Bernstein."

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:

"`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. 11937 (Dorsey)

"Carrier avers that Claimants can show no damages because they were fully employed at the time the fence was erected. But, Carrier has adduced no evidence that Claimants could not have performed the work by working overtime or that the work could not have been delayed until a time at which it could be included in Claimants' work schedule. When a Carrier violates the scope rule of an Agreement the covered employes have been damaged de jure; but, the extent of the monetary damages, if any, is a matter of proof. Where, as here, the violation has been established, the Claimants have made a prima facie case of damages as claimed and the burden to rebut, by factual evidence, shifts to the Carrier. Carrier, in this case, has not met the burden of negating damages as claimed.

"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. Therefore, the making whole of Claimants herein for work they would have performed and wages they would have earned, absent Carrier's violation of the Agreement, is the award of compensatory `damages;' not a `penalty.' Award No. 10963, cited by Carrier, is distinguishable from the instant case in that: (1) the Claim in Award No. 10963 prayed for a windfall for unnamed employes all of whom, obviously, could not have been damaged by the violation of the agreement; and (2) Carrier timely denied the Claim on the property averring, inter alia, that it was vague and indefinite."

Third Division Award No. 11701 (Engelstein)

"Claimant contends that he is entitled to reparations resulting from the violation of the Agreement. Carrier, on the other hand, maintains that Claimant suffered no loss because he was employed. Carrier also points out that the compensation requested by Petitioner is in the nature of a penalty and that the Agreement makes no provision for a penalty payment in the event of a violation of the Agreement.

"We are of the opinion that the fundamental factor in this dispute is the violation of the Agreement. For Carrier to concede the breach and then to assert that Claimant is not entitled to reparations is virtually to ignore its responsibility as a party to the Agreement. For an Agreement to be effective, both parties must uphold the terms. 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 and 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. Claimant's behavior or employment income are not the conditions that caused the breach. We regard the claim as one for damages rather than a claim for a penalty. Accordingly, we hold that Mr. Swafford is entitled to full indemnification for his claim."

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. 29913 (Wesman)

"With respect to the Organization’s claim for monetary damages, Carrier asserts that such damages are inappropriate where Claimant was fully employed during the incident at issue. However, this Board concurs with Third Division Award 27614 as follows:

‘. . . While we recognize that there is a divergence of views on this subject, it is our view . . . that full employment of the Claimants is not a valid defense in a dispute such as involved here. As we noted in Third Division Award 26593, ". . . 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."’

"There is no showing on this record that an emergency existed, thus potentially mitigating Carrier’s responsibility to fully comply with Appendix No. 34. Accordingly, the Claim is sustained in its entirety."