AWARDS 112 - MAKE WHOLE DOCTRINE

Public Law Board No. 5189, Case No. 1 (Meyers)

"With respect to the remedy, this Board finds that the Claimant in this case was the regularly assigned yardmaster on the dates that the program instructions were changed. The Claimant was off duty and available to be called to perform the yardmaster work that was performed improperly by the trainmasters. If the Claimant had been called to perform the yardmaster work, he would have been paid at the rate of time and one-half. This Board must find that the Organization's request that the Claimant be paid at the time and one-half rate be sustained."

Public Law Board No. 5189, Case No. 2 (Meyers)

"With respect to the remedy in this case, the Claimant was the regularly assigned yardmaster on the dates that the program instructions were changed in violation of the Agreement. The Claimant was off duty, rested, and available to be called into work as a yardmaster. Had he been called into work, he would have been paid time and one-half.

"Given the record before us, this Board has no choice but to sustain the claim."

Public Law Board No. 5189, Case No. 3 (Meyers)

"Under the most basic principles of contract law, which are used to, among other things, determine remedies when those are not specified in a contract, Claimant is entitled to relief because he was the person who should have been brought into work on the day at issue. The principles of contract law provide that an award of damages is intended to, as much as possible, put the injured person in the position that he or she would have been in had the contract been performed. Basic contract law therefore requires payment at the premium rate in this particular situation. There is no contract provision that prohibits it.

"If the Claimant had been called in on December 5, 1990, he would have been paid at the premium rate of pay for all hours that he would have worked that day. There is no dispute that the Claimant already had worked forty hours that week; the hours that the Claimant would have worked on December 5, 1990, would have been hours 41 through 50 for the week. The parties' Agreement, as well as the federal law, requires that an employee be paid overtime pay, at the rate of time and one-half, for every hour over 40 hours worked during a week. The Claimant should have been called in to work on December 5, 1990, and if he had been, he would have been paid for the ten hours of work at the time and one-half rate. Accordingly, to be properly compensated for the Carrier's mistaking in failing to call him in, the Claimant must be paid for ten hours of work at the premium rate."

Fourth Division Award No. 870 (Drake)

"One thing should be noted, however, and that is that the Agreement does not squarely cover the controversy. It does not expressly tell us what a man should get who does not work. It only tells us what he would get if he did work. Contract law has always provided the span over the gap, that is the principle that what he would have gotten is the measure of damages.

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"C. A person injured in any Anglo-American jurisdiction is, so far as possible to do so by a monetary award under the law of damages, to be placed in the position he would have been had the contract been performed."

Fourth Division Award No. 1711 (Weston)

"Claimant was entitled to be used for the disputed extra work on one of his rest days and no valid justification is perceived for limiting his monetary claim."

Fourth Division Award No. 2032 (Dolnick)

". . . In a recent decision of the United States Circuit Court of Appeals (338 F. 2d 407), in the case of The Brotherhood of Railroad Trainmen vs. The Denver and Rio Grande Western Railroad Company, the Court, in part, said:

"`. . . that one injured by breach of an employment contract is limited to the amount he would have earned under the contract less such sums as he in fact earned.'"

Fourth Division Award No. 2533 (Seidenberg)

"The Board must take cognizance that the more recent awards, appear in substantial number, to have adopted the Organization's rationale, namely that the affected employe is contractually entitled to be paid that amount which he would have earned if he had been called to service, but for which service he was not called, only because of the Carrier's inadvertence or error. In the interests of uniformity, the Board concludes that this rationale should now be accepted, and thus sustains the claim."

Fourth Division Award No. 2859 (Weston)

"The record developed on the property does not support the use of a junior Yardmaster instead of Claimant to fill the October 23rd vacancy and the claim as to that date will be sustained in its entirety since Claimant would have received time and one-half if he had been given the additional assignment."

Fourth Division Award No. 3067 (O'Brien)

"We cannot agree with Carrier's contention. We believe the proper measure of damages in claims of this nature is the amount claimant would have received had Carrier not violated the Agreement. If claimant had been properly used to fill the vacancy in question he would have been paid at the punitive rate and this is the proper measure of damages."

Fourth Division Award No. 4064 (Marx)

"The parties are in further dispute as to the appropriateness of the claim here for pay at time and one-half rather than at straight time. The Carrier cites Fourth Division Award Nos. 1099 (Livingston) and 1632 (Sheridan) in support of its position that the pro rata rate is the correct remedy, and the claim for the punitive rate is excessive.

"The Board, however, must be guided in this matter not by individual awards as cited by the Carrier but by the overwhelmingly consistent line of reasoning in the Fourth Division as to the appropriateness of a claim for time and one-half pay for work not performed. In its rebuttal submission, the Organization offers evidence of a recent line of awards in favor of the claim as here presented. Award No. 2533 (Seidenberg), adopted in 1970 (and more recent than Awards Nos. 1099 and 1632 cited by the Carrier) states as follows:

"`The Board must take cognizance that the more recent awards, appear in substantial number, to have adopted the Organization's rationale, namely that the affected employe is contractually entitled to be paid that amount which he would have earned if he had been called to service, but for which service he was not called, only because of the Carrier's inadvertence or error. In the interests of uniformity, the Board concludes that this rationale should now be accepted, and thus sustains the claim.'

"In line with a myriad of awards since then, the Board will sustain this claim as presented."

Fourth Division Award No. 4135 (Suntrup)

". . . The Board here rules, therefore, that the Claimant be paid the amount which he would have earned had he been called to service on October 26, 1981, 2300 to 0700 hours. . . ."

Third Division Award No. 29321 (Meyers)

". . . The Agreement does not allow for penalty payments, but merely allows for the Claimant to be made whole. Time and one-half payment will make the Claimant whole. . ."

Second Division Award No. 12415 (Suntrup)

"Given the full record in this case, and in view of the Carrier's continuing pattern of improperly applying, in the first instance, provisions of Rule 11 of the operating Agreement, the Board must conclude that the application of potential sanctions against the Carrier, as outlined in Award 12291, and in Award 12292 by reference, is here appropriate and the Board now so rules. The claim is sustained. The work which would have been done by the Claimant would have been performed at the overtime rate. Relief requested shall be paid at that rate."

Third Division Award No. 29897 (Vernon)

"Clearly there is a valid dispute before the Board concerning whether straight time or overtime is the appropriate remedy under these circumstances. It is our conclusion given, the history of this issue on the property and given the fact that there is nothing in the record to rebut the presumption that if called for the Sunday work in question, the Claimant would have received overtime, that the Claimant is entitled to eight hours overtime. He shall be compensated for the difference between straight time and overtime at the relevant rate of pay."

Third Division Award No. 31973 (Benn)

"With respect to a remedy, the Organization seeks that Claimant be paid at the overtime rate for the missed overtime opportunity. The Carrier argues that any remedy should be at the pro-rata rate. In this case, we find that payment at the overtime rate is appropriate.

As a result of the Carrier's violation of Claimant's seniority entitlements, Claimant lost a work opportunity that would have paid him overtime. The purpose of a remedy for an Agreement violation is to make the affected employee whole. Therefore, the only way to make Claimant whole for the Carrier's violation is to pay him the overtime that he would have earned but for the Carrier's violation. The Carrier has not cited any substantial body of precedent on the property to require a different result."