In the instant case, there can be no doubt that the employes represented by the International Union of Operating Engineers and Brotherhood of Maintenance of Way Employes are involved in this dispute. The work claimed by the machinists was performed by the operator of the clamshell with the assistance of the mechanic who would be deprived of the work if the Machinists were to prevail.

Accordingly, notice should be given to

L. V. Foster, General Chairman

Brotherhood of Maintenance of Way Employes

717 Missouri Insurance Building

St. Louis 1, Missouri

and

A. E. Phillips, General Chairman

International Union of Operating Engineers

2716 Pike Avenue

North Little Rock, Arkansas

of the pendency of the instant dispute so that all employes involved in this dispute will have an opportunity to be present and to be heard.

AS TO THE MERITS

It is the position of the carrier that the claim must be denied because (1) the shop craft agreement does not apply to the work of replacing the fuel pump when performed outside the maintenance of equipment department and (2) the work performed consisting of light repairs to the clamshell while away from back shops may be performed by work equipment operators as clearly recognized by Rule 52 (c).

The Employes in support of the claim cite paragraphs (a) and (c) of Rule 52, Award 1874 of your Board and certain correspondence between the parties. Let us discuss the foregoing contentions.

A clamshell is one of a number of types of on-track, self-propelled cranes generally referred to as work equipment. A clamshell is frequently used particularly in a large terminal for all types of lifting work, but primarily used for the maintenance of the track. Work equipment comes under the jurisdiction of the maintenance of way department. The operator of clamshell X-1034 while working in the Kansas City Terminal reports to the roadmaster who in turn reports to the division engineer, who is responsible to the superintendent for line or operating purposes and to the district engineer and engineering department for staff or administrative purposes. A superintendent maintenance of way equipment headquartered in St. Louis in the engineering department has general supervision over the distribution of work equipment and planning for maintenance, repairs, shopping and purchasing of work equipment.

Clamshells as well as other work equipment often work alone out on line of road. The operator is required to become proficient in maintaining the equipment and making necessary repairs so that the equipment will not be tied up waiting for a mechanic to arrive. The type of maintenance and light repairs performed by operators includes replacing the fuel pump. A motor car repairman will help the operator when available. As stated in Award 1874 (Referee Bailer) involving a claim filed by the system federation on this property,

"In addition to operating equipment or roadway machines such as the Multiple Tie-Tamper MT-13 here involved, employes in the Maintenance of Way Department have also been responsible, as a matter of past practice, for conducting day to day maintenance thereof, including minor or light repairs. The operators have performed this work with the assistance of motor car repairmen, who are members of the same department. When overhaul or major repairs have been necessary, carrier has sent such equipment to its Reclamation Plant at Sedalia, Missouri. Said major repairs have there been performed by shop craft employes in the Maintenance of Equipment Department."

The award makes it clear the operators of work equipment make repairs to their equipment with the assistance of motor car repairmen. Here the operator with the assistance of a motor car repairman replaced the fuel pump and cleaned the filters on the small, high speed diesel engine on the clamshell he was operating at the time the engine failed. This is nothing more than minor repairs of the type which operators make every day on this property. Here the clamshell was not out on line of road as is often the case, but moving through the train yard at Kansas City. The machinists do not object when the operator makes repairs on line of road miles from a terminal. As we shall show, it makes no difference in the application of the agreement that the clamshell was in the train yard in the Kansas City Terminal rather than on line of road far distant from a terminal when the work was performed so long as the work is performed outside the maintenance of equipment department.

The demarcation between the train yard where trains are yarded, switched and assembled and mechanical facilities such as diesel shop, power plant, test laboratory, fuel unloading track, outside inspection tracks and supporting facilities such as fueling and sanding stations and the separate car repair facility is easily ascertained and well known by those employed at Kansas City. Mechanical and transportation facilities are separated by designated switches. For example, the switches leading to the car repair facility from the train yard separating the mechanical department from the transportation department have special locks. Only mechanical department foremen have keys so that switch crews cannot use the tracks by mistake. It is readily apparent that the designated switches between the car repair facility and the train yard can be easily ascertained. The other designated switches can be as easily identified.

The fuel pump was replaced while the clamshell was under the jurisdiction of the maintenance of way department and while in the west train yard at Kansas City, a part of the transportation facilities. The agreement with the shop craft employes is limited as plainly stated on the cover and title page,

"to those who perform the work specified in the agreement in the Maintenance of Equipment Department."

The agreement does not give the employes the right to any work outside the mechanical department. The work performed in the maintenance of equipment department is classified as between the various crafts and prescribes rates of pay and working conditions. This does not mean, of course, that shop craft employes cannot be used elsewhere when needed. The agreement specifies how an employe is to be paid when sent out on line of road and the carmen have special rules relating to wrecking service and so forth. But the fact remains that the carrier has not contracted to shop craft employes exclusively any work outside the maintenance of equipment department. This question has been settled on this property by awards of your Board.

In Award 999, maintenance of way employes repaired a coal loader located outside the mechanical facilities in the Kansas City Terminal. Your Board denied a claim on behalf of two machinists and machinist helpers employed in the roundhouse because

"The evidence of record supports the conclusion that the work involved in this proceeding was not performed in the Maintenance of Equipment Department, subject to the controlling agreement effective July 1, 1936, and that its assignment to Maintenance of Way employes did not constitute a violation of that agreement."

In Award 3171, maintenance of way employes manufactured pallets in their own carpenter shop at DeSoto. Your Board denied the claim on behalf of carmen employed in the freight car facility because

"The shop craft agreement involved herein applied to those who performed the work specified in said agreement, in the Maintenance of Equipment Department, and therefore, would have no application here."

In Award 3172, bridge and building employes in the maintenance of way department at Kansas City and St. Louis repaired station trucks used in the freight houses. Your Board denied a claim on behalf of carmen in the Reclamation Plant at Sedalia because (after quoting the language found on the cover of the agreement)

"The work done on said trucks was not done in the Maintenance of Equipment Department, nor in the Reclamation Plant at Sedalia, Missouri. Neither of the said agreements therefore applied to the work that was done on said trucks on January 15, 1955 at either St. Louis or Kansas City, Missouri."

Applying the decisions in the above awards to the instant dispute, we see that the work of replacing the fuel pump was performed outside of maintenance of equipment department by a Maintenance of Way employe on a machine for which he was responsible. Under those circumstances, the shop craft agreement would have no application. The agreement was not violated.

The classification of work rule for machinists, Rule 52, is in harmony with the limitation on the application of the agreement as stated on the cover. Paragraph (c) of Rule 52 specifically recognizes that machinists have no contractual right to perform work on work equipment located outside of the maintenance of equipment department. The rule reads:

"This rule shall not be construed to prevent engineers, firemen, cranemen, operators of steam shovels, ditchers, clam shells, wrecking outfits, pile drivers and other similar equipment from making any repairs to such equipment as they are qualified to perform while away from back shops."

Note the rule includes operators of clamshells and states "This rule shall not be construed to prevent . . . operators of . . . clamshells . . . from making any repairs to such equipment as they are qualified to perform while away from back shops." The rule indicates the parties had no doubts about maintenance work being done by the operator but made the rule clear as to "repairs." Work equipment located in the transportation facilities in the Kansas City Terminal

is away from back shops and Rule 52 specifically recognizes operators may repair their equipment while working in the train yard.

The employes also cite some old correspondence and apparently want to construe the agreement as though the facilities still existed as they were 20 years ago. The Employes refer to a letter written August 2, 1938, by then Chief Mechanical Officer Garber and Assistant General Manager Clements in the days when the steam engine was still in its heyday and almost all work equipment was steam powered. To repair steam power, it was necessary to maintain back shops at key points because steam engines had to be completely disassembled, worn parts built up by welding and machined to correct tolerance, broken and missing parts made from specification, and the engine then reassembled by hand. The same was true of steam operated work equipment.

Today the steam engine has been replaced by the diesel locomotive. The clamshell X-1034 is powered by small, high speed, precision diesel engine. The back shop at Kansas City is gone. There are no back shop employes who used to do such work at Kansas City anymore. The shop craft employes are in the diesel facility which is comparable to the vanished roundhouse used for running repairs and routine servicing between trips. There are no employes in a back shop doing so-called dead work who can leave what they are doing temporarily and come back to it later. Mr. Garber and Mr. Clements wrote their letter in the light of the language of Rule 52 (c) and the conditions as they then existed, that is, when back shops were located at major maintenance points. In writing to the president and secretary of the system federation that maintenance of way work equipment will not be repaired by operators of such equipment when moving to or working in shop points they had reference to the points where the back shops referred to in Rule 52 (c) were located. A back shop is no longer located at Kansas City, and, therefore, Kansas City is not a "shop point" in the sense in which Mr. Garber and Mr. Clements used the term. The statement of policy in the letter of August 2, 1938, written in a by-gone era, no longer holds true in these days of revolutionary changes in the transportation industry.

The employes have also cited Award 1874 of this Division in support of their claim but the award does not support even their fallacious argument. We quoted above from that portion of the award which pointed out that operators with the assistance of motor car repairmen are responsible for the maintenance of and making light repairs to their equipment. Your Board went on to say

"It is clear that the essential distinction between repair work which may properly be performed by Maintenance of Way Employes and by members of the Maintenance of Equipment Department is whether or not such work involves light or heavy repairs. In fact, the intent of Machinist Rule 52 (c) of the controlling agreement is that normal maintenance and light repair work on equipment may be performed by operators and other employes away from the back shops, but that heavy repairs are to be performed in said shops by employes covered by the subject controlling agreement."

We believe your Board erred in holding that the work performed in that award was work which the carrier had contracted to the shop craft employes at Sedalia but, nevertheless, the findings made a distinction between "normal maintenance and light repairs (which) may be performed by operators and other (M of W) employes away from the back shops" and "heavy repairs (which) are to be performed in said shops by employes covered by the (Shop Craft) agreement." Here there can be no doubt that the replacing of the fuel pump is light repairs. The award clearly holds that the operator, with necessary

assistance, may perform light repairs. Award 1874 requires a denial of this claim.

The employes have argued all along that machinists were on duty and readily at hand in the diesel facility and should have been used to perform the work. It is inconsistent to make a monetary claim on behalf of a machinist employed on the night shift who not only was not on duty but was probably home in bed. No pretense is made to relate the rules and authorities cited to the machinist named in the claim. If the employes are sincere in their argument that machinists on duty should have been used to perform the work, then the monetary claim is nothing but a request by the employes seeking to induce your Board to assume the authority to penalize the carrier in an amount arbitrarily fixed by the employes for the machinist selected by them on what basis we do not know.

None of the rules in the shop craft agreement require the carrier to give Machinist Grisby four hours' pay at the straight time rate for January 6, 1960. Grisby has been properly paid for all work performed. Rule 4 (d), the so-called "call rule" sometimes cited by the Employes, is a pay rule applicable to "Employes called or required to report for work . . .” Grisby was not called nor did he report for work on January 6, 1960, outside of his regular assignment for which he has already been properly paid. Neither Rule 26 nor Rule 52 or any other rule contains a penalty provision which requires giving Grisby the money requested. Your Board has no authority to assess a penalty against the carrier, but is limited to the interpretation of the collective bargaining agreements.

Your Board is admittedly a creature of statute and as such cannot rise above its source. Having been established pursuant to the provisions of the Railway Labor Act, then your Board must look to said Act for its authority. A careful examination of the Railway Labor Act will reveal no provisions contained therein which authorize your Board to assess penalties in the absence of a rule providing therefor.

In the absence of a penalty provision in the agreement negotiated by the parues before the Board and in the absence of any authority having been given the Board by its creator to assess fines and/or penalties, then, obviously, this Board should be guided by the well settled law of the land and the principles which have found their acceptance in the common law, which, through the process of trial and error, has met the test of the centuries and has endured. The principles to which we have referred are that the measure of damages for a breach of a contract or agreement is a loss which directly and proximately flows from such a breach. Such damages do not include any loss which is indirect, remote, or speculative; neither do they include penalties as aptly stated by Referee F. L. Fox in First Division Award No. 5862

"When the breach occurs the law steps in and prescribes the method of compensation in damages."

The courts have generally refused to assess a penalty for the breach of a civil contract except when such penalty has been agreed upon between parties, and then only when the penalty agreed upon between parties is in lieu of undeterminable damages. As stated by Referee Grady Lewis in First Division Award No. 11463 in a dispute between this carrier and the Order of Railway Conductors

"What is this thing that has been determined by analysis to be odious? It is what is known in the law as a penalty. In the language