Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10089
SECOND DIVISION Docket No. 9736
2-BN-CM-184
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
( Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
( Burlington Northern Railroad Company
Dispute: Claim of Employes:
1. That the Burlington Northern, Inc. violated Rule 7(b) of our Current
Agreement effective April 1, 1970 when they failed to compensate
Minot Carman Marshall Gooch actual necessary meal expenses for the
months of May and June, 1981 incurred while performing road service
away from home point.
2. That, accordingly, the Burlington Northern, Inc. be ordered to
compensate Carman M. Gooch in the amount of $32.24 for the month of
may, 1981 and $54.59 for the month of June, 1981.
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 employes 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.
The Claimant, Carman Marshall Gooch, submitted an Employee Expense Account
for the months of May and June, 1981. Both were denied because noon meals were
included, and the Carrier ruled that such payment is made only in cases of
emergency.
The Organization asserts the Carrier violated the terms of the controlling
Agreement in refusing payment as provided for in Rule 7(b), which reads:
"(b) If, during the time on the road, a man is relieved from duty
and permitted to go to bed for five (5) or more hours, such relief
will not be paid for; provided that, in no case, shall he be paid for
a total of less than eight (8) hours each calendar day, when such
irregular service prevents the employee from working his regular
daily hours at home station. Where meals and lodging are not
provided by railroad, actual necessary expenses will be allowed.
Employees will be called as nearly as possible one (1) hour before
leaving time and on their return, will deliver tools at point
designated."
Form 1 Award No. 10089
Page 2 Docket No. 9736
2-BN-CM-184
The Organization contends there is no question the submitted expenses wee^e
actual and necessary. It argues that Rule 7(b) is clear and unambiguous and
that, when employes who are regularly assigned to shop or repair of track are
called to peform work away from their regular assigned point to make repairs to
cars which have been set out of a train because of defects, the repair of these
cars constitute an emergency. Arguing in the alternative, the Organization
claims the Carrier has always paid for the noon meal when carmen are sent from
their home point to repair cars which have been set out for mechanical defects.
This practice continued until 1979 when it was discontinued, according to the
organization, on five divisions. Nevertheless, it was continued on nine other
divisions until May, 1981. Thereafter, and in accordance with Public Law Board
No. 1540, involving another Carrier, the Organization states it was determined
that regular payment for noon meals over a sufficiently extended period represents
a past practice.
The record as reviewed by the Board establishes that the Carrier has, in
the past, paid for noon meals regardless of what work was performed. Rule 7,
as stated above, deals exclusively with emergency road work and associated
circumstances. The language is clear and unambiguous and, as such, its meaning
must be given full effect, and the actions of either party cannot change this
expressed intent.
From the inception of this claim, the Organization has made reference to
an emergency situation. Its initial denial Carrier made reference to "emergency
derailments," but subsequently this was properly amended to "cases of emergency."
Additionally, the Carrier has contended the Claimant did not perform emergency
road work on the dates in question. The Organization, as seen above, has advanced
two arguments in behalf of the Claimant asserting the assignments were emergency
situations and, in the alternative, claimed that Rule 7(b) makes no reference
to emergency, therefore it is applicable regardless of the work involved.
The record before the Board reveals no evidence to support a finding the
Claimant was engaged in work other than normal road work. Clearly, had we
found the work in question was of an emergency nature, we would have sustained
the claim. The Carrier, by its own admission, improperly allowed such payments
regardless of the work involved. The Organization acknowledges these payments
were terminated for all divisions by April 29, 1981. Faced with clear and
unambiguous language, this Board will not look beyond the clear intent of the
parties. Obviously, some road work may involve emergency situations and, in
such cases, payment is proper and should be forthcoming. We find no evidentiary
basis to so conclude for the work in question. We will, therefore, deny the
claim for the reasons set forth above.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest-: ,.
Nancy J ~ver - Executive Secretary
Dated at Chicago, Illinois, this 19th day of September 1984.