Award No. 5435 Docket No. 5300 2-GN-EW-'68

NATIONAL RAILROAD ADJUSTMENT BOARD

SECOND DIVISION

The Second Division consisted of the regular members and in

addition Referee Joseph S. Kane when award was rendered.

SYSTEM FEDERATION NO. 101, RAILWAY EMPLOYES'

DEPARTMENT, AFL-CIO (Electrical Workers)

GREAT NORTHERN RAILWAY COMPANY

DISPUTE: CLAIM OF EMPLOYES:

1. That Carrier has violated the rules of the current agreement when it failed to reimburse Electrician Francis L. Malsam as specified in the Schedule Rules for the entire amount of expenses which he incurred while performing service for the Carrier during the month of April, 1965.

2. That, accordingly, the Carrier be required to compensate the aforementioned employe in the amount of $38.25.

EMPLOYES' STATEMENT OF FACTS: Electrician Francis L. Malsam, hereinafter referred to as the Claimant, had been assigned by the Great Northern Railway Company, hereinafter referred to as the Carrier, to its System Electrical Crew No. 6. This crew is headquartered at Great Falls, Montana. During the month of April, 1965, the Claimant was assigned to work in his classification at points which included Essex, Havre, and Glasgow, Montana. Electrical Crew No. 6 had outfit cars for living purposes during the period in question, and the crew members purchased their meals at the locations where they happened to be working.

At the end of the month of April, 1965, the Claimant submitted an expense account in accord with carrier instructions and which was based on the daily rate as specified by the Schedule Rules. The Carrier elected to deduct the sum of $38.25 from the Claimant's April expense account. These 3eletions were for meal expenses incurred by the Claimant at the points of Essex, Havre, and Glasgow, Montana, and were as follows:

Havre, Montana - April 1, 1965 $3.75

Havre, Montana - April 2, 1965 3.75

Havre, Montana - April 8, 1965 3.75

Havre, Montana - April 19, 1965 3.75

FOURTH DIVISION AWARD 1487

Rwy. Employes' Dept. v. FGE (Referee Harold M. Weston)

"It is certainly not our province to rewrite the Agreement or to subject it to strained and artificial interpretations in order to reach a desired result, no matter how tempting it may be to do so in a particular case. The rules now under consideration, unlike any other collective bargaining agreements, fail to cover the point in issue and, inasmuch as the burden of proof in this case rests with Petitioner, the claim must be denied."

"There is no statement in Rule 22(c) `that the work of derailment having been completed.' This Board is without authority to revise the rule." (Emphasis ours.)

THE CLAIM OF THE ORGANIZATION, THEREFORE, IS WITHOUT MERIT FOR THE FOLLOWING REASONS:

1. The Organization has the burden of proving by positive evidence that Rule 65, solely relied upon in this case, specifically requires payment of the $38.25 meal allowance as claimed during April, 1965 while the claimant was living at his residence in Havre, Montana. The Carrier submits it has failed to carry this burden.

2. Under the plain meaning of the language used in Schedule Rule 65(b), the Carrier is obligated to reimburse only "employes in outfit cars" the specified $3.75 per day allowance "to purchase . . . meals." The claimant took himself out from under Rule 65 (b) on the dates above tabulated by residing in his own residence at Havre on those dates.

3. This Board has no authority to rewrite Rule 65(b) under the guise of interpretation. It must limit its function to applying the rule in accordance with the plain meaning of the language contained therein. As above stated, it has already confirmed this principle in its Award No. 4927, involving this Carrier.

(Exhibits not reproduced.)

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 waived right of appearance at hearing thereon.

This claim is for per diem payments at the rate of $3.75 per day incurred during the month of April, 1965, for meals while the claimant was assigned to an outfit car. The work performed during April was at Havre, Montana, the home of the claimant.

The Carrier refused to pay the per diem expenses as the claimant's residence was at Havre, and he incurred no expense for meals, as he had them at home.

The Claimants contended Rule 65 (b) applied:

"When meals are not furnished by the Carrier to employes in outfit cars, $3.75 per day will be allowed each employe to purchase his meals."

Thus, when the claimant was assigned to an outfit car the rule provided $3.75 per day allowance irrespective of where he took his meals.

The rule is clear and explicit that when meals are not furnished the employe will receive $3.75 per day allowance to purchase meals. No limitation is placed on the employe as to whether he has his meals at home or among friends.

Thus, the Board is of the opinion that under the Rule 65 (b) the claim should be sustained. The Claimant be paid per diem of $3.75 for the month of April, 1965, while he was stationed at Havre, Montana, with credit for previous payments.

AWARD

Claim sustained.

NATIONAL RAILROAD ADJUSTMENT R() k ., By Order of SECOND DIVISION