Form 1
NATIONAL RAILROAD
ADJUST'.E"NT
BOARD
SECOND DIVISION
The Second Division consisted of the regular members arid in
addition Referee Herbert L. tYRarx, Jr. when award was rendered.
Dispute : Claim of rrroloyes .
Award No.
8167
Docket No. ?M
2-CJ-~1:'l-Civt-
1
79
,,3tem Federation No.
76,
Railway Employes'
Department, A. F. of L. - C. I. 0.
(Carmen)
Chicago and North Western Transportation Company
Carmen Gene r,`'iller and Brian Bennett, Sioux City, Io;,ra, ;,sere
denied reimbursement for meal expenses vthile the;; were a;,aay
from home station on emergency road work. The dates and
amount's of meals purchased are as folluas
Gene 11.1iller
Gene 'filler
Brian Bennett
9/13/77
$2.55
9/24/77 $1.65
9/13/77 $2.89
2. That the Chicago and North 'Jestern Transportation Co..rmany ba
ordered to raimbarse Carmen Gene Miller and Brian Bennett for
real expenses incurred while a;°ray from home station on emergency
road work as 1 isted above, a:id for all meals similarly incurred
subseauent to the dates listed, as this is a continuous claim.
Findings
The Second Division of the Adjustment Board, upon the whole record and
all the evidence, finds that:
The carrier or carriers and the emplo;;e or employes involved in this
dispute are respec tively carrier and enmloye within the meaning of the
Rail-rray Labor Act as approved June 21, 1934.
This Division of the Adjustmant Board has jurisdiction over the dis_bute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
a i
Form 1 Award No.
8167
Page 2 Docket No. r90
2-C E~`.V-CA-' r9
This dispute involves a claim for reimbursement for meal expenses while
away from home station on road work, in which the circurbstances found the
Claimant's at work at their headquarters location at both the beginning and
end of the work day.
There is no dispute between the parties that the Claimants were "on the
road" during the Time of their lunch period and were not furnished meals by
the Carrier. Them is also no dispute as to the validity of the bills (:;?.53
and $1.65 for one Claimant and .2.89 for the other Claimant) indicating the
amount actually spent for lunch on the tyro dates in question.
The Board does not accept the Carrier's apparently belated argument that
one of the Claimants :-:as ::ithout a headquarter location. The record indicates
otherwise.
The rule involved is Rule 10, the first two paragraphs of which reads as
follows:
"An emloye regularly assigned at a shop, enginehouse,
repair track or insnection point, -ahen. called for
emergency road ;fork a,·ray from such shop, enginehouse,
repair track or inspection point, :gill be caid from. the
time ordered to leave home station, until his return for
all time worked in accordance with practice at home
station and will be paid straight tf_ me rates for traveling
or waiting except rest days and holidTjs .-,hich ,gill be
paid for at the rate of time and one-half.
If, during the 'time on the road a man is relieved from
duty and permitted to go to bed for five or more hours,
such relief time will not be paid for, provided that in
no case shall he be paid for a total of less than ei cht
hours each calendar day when such irregular service
prevents him from r^a=;ing his regular daily hours at home
station.
1'jh~°'_"e
T^nals and lod c:1-no' are not
',)rrJV'
C:?'i !)'r
the
r
1
+, n on ~P
be ' ~ ·? R
Mallj.
(Emahasis added)
Form 1 Award
No.
8167
Page 3 Docket No. 7990
2-C ~ 2f."l-C'M-' 79
The final sentence of the second paragraph might be said to be cr=ystal
clear and totally unambiguous. If this -Pre the case, no reference to past
practice as to such payments would be of assistance to either party. The
rule would prevail.
Nor need the Board be deflected in its reasoning by the agreement that
"meals and loding" must mean only the two item-, in conjunction and not
either separately. Co=n English usare dictates that either meals or
lodging nay, under appropriate cirC__:Stances, be reimbursed. The Carrier
agrees, for example, that
f
_t reimburses for a meal when an eumloye is a^ray
from headquarters location for lunch, does not return to headquarters at the
end of the work day, and yet i s not away from home a t night so as to incur
lodging expenses.
Nor need the word "necessary" in "actual necessar7 expenses" require a
diversion do:vn a tangential path. Three meals a day at reasonable cost can
be considered "necessary". Argument is raised by the Carrier as to internal
Revenue Ser-r3_ce definition of "necessary". But this merely distinguishes
bet,;reen deduct-ble business exile-se and taxable income -- a distinction
totally irrelevant to an interpretation of the provisions of the anolicable
collective bargainin171 agreement and one with
which
the Board is happily not
charged to interpret.
This brings the Board back to the possible am'higuity of the final
sentence of the second paragraph of Rule 10.
As a first interpretation, it can be vie,:red as an integral part of the
second paragraph
Mnich,
in the first extensive sentence. deals solely pith
employes relieved from duty ..:rhile or. the road and subject to "irregular
service". Taken in this 1 o-ical bat narro,,,r farhion, the allowance for ale
and lodging (if not provided by ,,ne.Carrier) ,would obviously not refer to an
employe (as in the present d isp a to) :ho begins and ends his day at his headquarters location and thus is at no tire "relieved from duty" while on the
road.
Alternatively, the sentence can be read in the context of the introductory paragraph of Rule 10, and therefore to the entire rule which refers
to any employee "regularly assigned" at a shop, etc. who is called for
emergency uorlc "a,%ray from such
shop",
etc. If this is the m~aning, then
the Claimants herein can rightly assert; coverage.
Thus, sufficient anisiguity is established to make reference to past
(and current) practice both necessary and relevant.
Form 1 Award N o
. 8167
Page 4 Docket No. 71-90
2 -C,°.-TN V-CTA- 179
The Organization urges its version to established practice in several
ways. It offers the statements of. four lo,,:g-term employees :oho state, in
effect, that they always received lunch reimbursement while on the road over
a long period of years. Not one of the statements, haxever, specifies that
such payments occurred ,vhen the employe began and ended his work day at
headquarters, leaving open the possibility that these four employes, on the
road, "always" stayed overnight, in which case all agree that meal re ~rbursement eras proper.
The Organization is on firz1,er ground in quoting one of the Carrier's
Assistant Division ':'anagers (22n a memo dated '.'arch 3, 1977, less than seven
months prior to the instant claim) that the Carrier .l.yas snendiz-q "Lnznecessary
money each month by paying expenses to road work drivers for lunch" (thus
establishing at least a local practice). Af ter ordering this to ceasecease, the
same official on ^pril 1, 1977, rescinded the order because "Carmen used to
perform road work are entitled to a real at Co_-,-pany expense".
The Board concurs with the Carrier that Agreement interpretation need
not be governed by -rulings of a subordinate official. But what the Or-anization here establishes is not in
ULrpr
atat:ion but the uncont-roverted existence
of a practice, ever: if only on one of the Carrier's divisions. Carrier
further states in its submission that "such erroneous payments had become
the practice a ; various points for a few years . . , but it has not been
the
practice at everj point" (Carrier's Submission, p. 14). Unlike certain
situations in work classification d_fsputes, practice need not be universal
to be considered as relevant.
The Carrier suggests one other established practice - namely, that steal
payments are made not only if e::,ployees :·rere array overnight, but also if
they "failed to return to their headquarters point at their usual quitting
time'' (Carrier's Submission, -a. 14). If the Carrier urges the applicability of real reiffcursement solely to conditions written in the second
paragraph of Rule 10, then tire Board -"ails to find sanction for such payment
where employees si-ply fail to return to headquarters at the end of t:le day -unless such payments are part of an established, mutually accepted practice
interpreting the rule.
The Board therefore finds an ambiguity in the application of the rule.
Turning to practice, the Organization makes a creditable case for its
position, while the Carrier has not shown, in its evidence offered on the
property, that such practice is non-existent.
Form 1 Award No.
8167
Page 5 Docket No. 7-31;0
2-C=WW-C-4-' 79
Both the Carrier and the Organization cited namerous other Awards
in which the rule wording is not identical and thus not instructive
here. Ho;lrever, Public La.~r Doard No. 2339
(C:1"? ?: IBT"l,
77eston) sustained
an identical claim under virtually identical lan-uage with the same
Carrier. For a si.,nilar conclusion, see Public Law Board No. 1540
(ICG °- IBT,7, Cull).
'r'I A R
r)
Claim sustained.
NATIONAL RAILROAD. ADJUST%~EN'T BOARD
By Order of Second Division
Attest: Executive Secretary
National Railroad Adjustmnt Board
By .~ \.
R
xfzl
osernarie Erasch - Administrative Assistant
Dated at Chicago, Illinois, this 14th day of Navember,
1979.