AWARD 130 - ADJUSTMENT BOARD HAS RIGHT TO ASSESS PENALTY

Second Division Award No. 12543 (Fletcher)

"Carrier's final point, contending that the Board is without authority to assess penalties or employ sanctions is perplexing. Carrier seems to have based this on the decision in Brotherhood of Railroad Trainmen v. Denver and R.G.W.R. Company, (10th Cir.) 338 F.2d 407 (1964). The decision in that case was short lived. Two years after that case was decided the same court in a dispute involving the same Organization and Carrier, Brotherhood of Railroad Trainmen v. Denver and R.G.W. Company, (10th Cir.) 370 F.2d 833 (1966), effectively negated is earlier holdings. These two 10th Circuit decision, which have become to be known in the Industry as DRGW-I and DRGW-II, have been exhaustively reviewed in a number of other district and appeal court decisions as well as in Awards of all Divisions of this Board. In this regard see Third Division Award 15689, which has been frequently cited.

In light of the amendments of the Act and the judicial development of the law, cited above, we hold that when the Railroad Adjustment Board finds a violation of an agreement, it has jurisdiction to award compensation to Claimants during a period they were on duty and under pay."