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"Telephone maintainers are paid a monthly rate to cover all services in a 24-hour period, except as provided in Rule 107 (c) of our agreement. The mere fact that they would not be compensated for this extra work should not give other than telephone maintainers the privilege of doing the work."

Claimants would not have been paid even if called for this extra work. Sustaining the monetary claim in this docket would be nothing less than the imposition of a penalty or fine on the carrier. The claimants lost no compensation nor is it even clear that the particular individuals named as claimants would have been used to perform the work or even would have been qualified to perform the work. For example, C. C. Browning is named as the claimant for September 3, 1959, and his duties are primarily the maintenance of radios. The carrier does not have any knowledge that Mr. Browning is qualified to splice cable and, particularly, that he was qualified to use the new devices that were being tried out at the time of the claim.

The jurisdiction of your Board is limited to that granted by the Railway Labor Act, that is, to disputes growing out of the interpretation or application of an agreement concerning rates of pay, rules or working conditions. Your Board has not been given the duties of enforcing statutory law by assessing fines and penalties as in the case of the Interstate Commerce Commission or the Securities Exchange Commission. Enforcement proceedings before those agencies in some respects resemble or replace criminal proceedings in the courts. Note that the agency has the authority to impose fines and penalties because of a violation of a statute or regulation as contrasted with hearing a dispute based on alleged violation of a private contract as in the case of a collective bargaining agreement.

Your Board has no authority to assess fines or penalties nor even to enforce awards. The proceedings before this Board resemble or take the place of possible civil action in the courts. We remind your Board that the law abhors a penalty in civil actions growing out of contract. A penalty or forfeiture will be enforced only when it is clear that the extent of damages cannot be ascertained and the parties have agreed upon fixed damages. This is the rare exception and not the rule. The rule is that courts will award only those damages which can be proven. The collective bargaining agreement between the parties to this dispute does not contain a provision for assessing a fine or penalty against the carrier, nor is an amount stated as fixed damages. The claimants have suffered no loss of earnings and have not been damaged. There is no basis whatsoever for a monetary claim in this dispute.

Years ago this carrier voluntarily adopted the policy of assuming the burden of the economic loss when an employe suffered a loss of earnings as a result of a violation of the agreement by management. Since the carrier has made the employes whole, there has been no reason for the employes requesting a rule so providing. The employes already benefit from the equitable policy of the carrier. With nothing to lose, the employes recently have been asking your Board to go beyond what the carrier has been willing to do as a policy matter by requesting your Board to assess a fine or penalty on the carrier. The 4-hour calls contained in the employes' claim are not based on an alleged monetary loss suffered by the claimants or to the amount or type of work which is the subject matter of the dispute. The claims are nothing more than a request that the carrier be penalized.

The absence of a penalty provision in the agreement is not accidental. Provisions in a collective bargaining agreement establishing rules fixing an

amount as damages for a violation of the agreement by management are rare, but there are a few. The best known is the runaround rule in agreements covering operating employes. This is a fixed amount which the parties have determined to be paid as damages for that type of violation. It is not related to the earnings of the run which the employe may have missed or other similar factors. Another example of a penalty is found in the telegraphers' agreement where a train order is issued at a station where a telegrapher is employed, but is off duty. In those cases, the telegrapher is paid a call even though he performs no work. Another example is found in the clerks' agreement on this property which allows a clerk $3.60 a day in addition to his normal pay when not moved within five days onto a position bid in. These examples illustrate that the employes are fully capable of providing for a penalty through negotiations if the parties so desire. The absence of penalty provisions in an agreement is not accidental omission through lack of skill on the part of the employes, but is something that the employes have never asked for or obtained except to a very limited degree.

The question of your Board assessing penalties on the carrier has only recently reached significant proportions. Ordinarily your Board has done no more than that which the carrier has been willing to do, that is, make an employe whole for wage loss where the agreement has been violated. No reason has heretofore existed for taking the time to discuss this question of penalties. Your Board should now make it clear that your jurisdiction is limited to the interpretation of the agreements.

We urge this Division to follow the decisions of the First Division which has refused to grant a monetary claim where it is shown that the claimant is on duty and under pay or where the employes fail to show that the claimant suffered a wage loss. As so aptly stated in First Division Award No. 16264,

"Claimants seek no recovery for time lost and they suffered no monetary loss. As a matter of fact, they earned substantially more than they otherwise would have earned. To permit them to recover another day's pay would award them a penalty not provided by the schedule."

The First Division will not consider a claim where no monetary loss is shown. For example, the First Division in Award No. 18923 without the aid of a referee held

"There is a showing that claimants herein were on duty and under pay at the time the service giving rise to this claim was performed. This Division has in fifteen previous awards, the latest of which are Awards 16264, 16507, and 18625, denied like claims where claimants were on duty and under pay. The Division will, therefore, without passing upon the merits, dictate a like holding here."

Also see First Division Awards No. 194 and No. 6385. Your Board should go further and hold that your Board has no jurisdiction to sustain any kind of a monetary claim unless the agreement so provides. The claimants suffered no monetary loss since they were paid a monthly salary for all service performed on dates of claim. Claimants simply were not called on to perform the work in dispute with no loss of earnings. Your Board has no authority to reward claimants or to penalize the carrier.

For the reasons stated, the claims in this dispute are not supported by the agreement or the facts and must be denied for that reason. In any event, there is no basis for a monetary claim on behalf of the claimants.

FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

Under Rule 26 foremen are not prohibited from performing work in the exercise of their duties. Consequently, in order to establish their improper performance of the work of a craft it must be shown not to have been done in the exercise of their duties.

The first item was a midnight call because of the failure of part of a round-robin system. The work of a supervisor is more than merely supervising the actual work of others; it includes instructing the others what to do, which sometimes necessitates an examination to determine what is necessary, and the best way to do it under the circumstances. That is especially true in a situation like this, where a continuously needed communication system is out of operation. A quick inspection may have shown that the insulator and carbon block were dirty or greasy, and the normal way to learn whether the trouble resulted from that or some other cause would be to wipe them off and put them back. Certainly those acts were part of his job to determine what was wrong, and he would have deserved criticism if he had not performed them. The fact that they actually remedied the trouble does not alter the fact that they were very possibly done in the exercise of his supervisory duties. Finding that the round-robin was thereby restored to service, it would have made no sense to disrupt service further by removing the parts long enough to have Claimant Kuhlman called out to wipe them again and put them back, whether or not he would have received extra pay for the unnecessary service.

The second item was the buzzing of a cable, which requires a man at each end. The circumstances are not shown but it is certainly possible that the man at the other end was a telephone maintainer under his supervision, and that the work was performed in the exercise of his supervisory duties. On the record we cannot conclude that it was not.

The other items involved the splicing of a cable on each of four days; no evidence is submitted concerning the item of September 4; the evidence for each of the other three days consists of a simple written statement, signed by three or four of the Claimants, "that I, the undersigned, noted violation. A. Highfill performing work, splicing cable ***," with no particulars except the location at which it was done.

In this state of the record this Board is in no position to find that these items of work were not performed in the exercise of the supervisor's duties. If it were, none of the Claimants would have been entitled to a four hour call, as claimed.

Telephone maintainers receive a monthly salary to cover all services rendered, including overtime on the first five days of the work week. All the work in question was done on those days, one item at Midnight and the others at times not stated. Each claimant worked and was paid for the day

to which his part of the claim relates, so that he can have sustained no financial loss. There is no contention that the circumstances were such on any of the six occasions that an additional telephone maintainer would have been necessary if the supervisor had not performed the item of work claimed, and no claim is presented by such other telephone maintainer. The claims must be denied.

AWARD

Claims denied.

NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of SECOND DIVISION

ATTEST: Harry J. Sassaman

Executive Secretary

Dated at Chicago, Illinois, this 20th day of November, 1962.

Docket No. 3854

2-IC-CM-'62

NATIONAL RAILROAD ADJUSTMENT BOARD

SECOND DIVISION

The Second Division consisted of the regular members and in
addition Referee Howard A. Johnson when award was rendered.

PARTIES TO DISPUTE:

SYSTEM FEDERATION NO. 99, RAILWAY EMPLOYES' DEPARTMENT, A. F. OF L.-C. I. O.

(CARMEN)

ILLINOIS CENTRAL RAILROAD COMPANY

DISPUTE:

CLAIM OF EMPLOYES:

That under the controlling agreement, wrecking crew members R. D. Barron, R. L. Slay, Sylvester Cotten, W. W. Chisholm, A. L. Evans, P. J. McGehee, and E. F. Prescott, should have been paid waiting time from 9:00 P. M. July 15, 1959, until 6:00 A. M., July 16, 1959.

EMPLOYES' STATEMENT OF FACTS: Carmen R. D. Barron, R. L. Slay, Sylvester Cotten, W. W. Chisholm, A. L. Evans, P. J. McGehee, and E. F. Prescott, hereinafter referred to as the claimants, constitute the regular assigned wrecking crew of the Illinois Central Railroad, hereinafter referred to as the carrier, at McComb, Mississippi.

On July 11, 1959, the claimants were called out at 7:00 A. M. and worked picking up wreck at Byram until 11:00 P. M., then brought back to McComb to stay until Monday, July 13, 1959. The claimants returned to Byram and worked on this date from 4:00 A. M. until 10:00 P. M. and tied up for the night at Crystal Spring. On July 14, 1959, they worked from 5:00 A. M. until 9:00 P. M. and on July 15, 1959, they worked from 7:00 A. M. until 9:00 P. M. both days at Byram, Mississippi. At 9:00 P. M. the wrecking crew had finished picking up the wreck, cleaning up the cars, finished preparing cars for the homeward trip to McComb. All members of the crew had washed up, changed clothes, the fire in the derrick had been killed and the derrick had been tied down. However, instead of carrying the crew to their home point at McComb, Mississippi, they were carried to Elton, Mississippi, with all the hospital cars attached and tied up for the night to have daylight movement on July 16, 1959.

This dispute has been handled in accordance with the controlling agreement up to and including the highest designated officer of the carrier with

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