Form 1 NATIONAL RAILROAD ADI7USTMENT BOARD Award No. 10240
SECOND DIVISION Docket No. 9281
2-BN-CM-185
The Second Division consisted of the regular members and in
addition Referee Rodney E.
Dennis
when award was rendered.
( The Brotherhood Railway Carmen of the
( United States and Canada, A.F.L. - C. I. O.
Parties to Dispute:
( Burlington Northern, Inc.
Dispute: Claim of Onployes:
1. That the Burlington Northern, Inc. violated Rule 7(b) of our Current Agreement
effective April 1, 1970 when they failed to compensate Livingston Carmen L. S.
Blatter, J. S. Molyneau, H. E. Harper and A. S. Villburn actual necessary meal
expenses for the month of November, 1979 incurred while performing road service
away from home point.
2. That accordingly, the Burlington Northern, Inc., be ordered to compensate
Carman L. S. Blatter $4.55 for November 3, 1979, Carman J. S. Molyneau $8.64 for
November 20 and 22, 1979, Carman A. S. Villburn $11.60 for November 5, 6 and 8,
1979 and Carman H. E. Harper $45.50 for November 1 , 5 , 6 , 8 , 9 , 13 , 14 , 16 , 19 , 20 ,
21 and 26, 1979.
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.
Petitioner in this case contends that Carrier improperly withheld meal expenses
for the month of November 1979 from Carmen who performed road service away from
their home point. Petitioner relied on a portion of Rule 7(b) to support its
claim. That Rule reads as follows:
"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 pervents 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.****"
Form 1 Award No. 10240
Page 2 Docket No. 9281
2-BN-CM-185
Petitioner also argues that for many years prior to November 1979, whenever
Carmen were required to work away from their home point,. regardless of what work
was performed, they were always .reimbursed for the noon meal. It finally argues
that this long-standing practice gives meaning to Article 7(b) and that based on
that long-standing practice, the claim should be sustained.
Carrier on the other hand contends that Carmen should not be paid for the noon
meal just because they work on cars away from their home station. It argues that
Rule 7(b) relied on by the Organization is part of the Emergency Road Work Rule and
Section 7(b) must be read in conjunction with Section 7(a) of the Rule. The
complete Rule reads as follows:
"RULE 7 - EMERGENCY ROAD
WORK
(a) Other than as provided in paragraph (b) of this rule an
employee regularly assigned to work at a shop, engine house,
repair track or inspection point, when called for emergency
road work away from such point, will be paid for all time
from time ordered to leave home station until his return as
follows: for all time waiting or traveling, straight time
rate during home point working hours, time and one-half
during home point overtime hours; for all time working,
straight time rate during home point working hours, overtime rate as per Rule 6 during home point overtime hours.
(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."
Carrier states that all road work is not emergency work, so therefore, employes
who work on the road doing the ordinary work of Carmen are not entitled to meal
payments. Carrier further argues that even if Carmen have been reimbursed for noon
meal expenses in the past when they worked away from their home points, those
payments were in error and not approved by the people of the Railroad charged with
the responsibility of interpreting the Agreement.
We have carefully reviewed the record of this case and the awards submitted by
each side and must conclude that the basic labor relations principle applicable
here and the bulk of the prior awards support the Carrier's position.
Form 1
Page 3
Award No. 10240
Locket No. 9281
2-BN-CM-185
It is clear from a reading of all of the awards submitted, both denial awards
and sustaining awards, that they almost universally adopt the principle that not
all road work performed by Carmen away from their home point is emergency work.
This Division adopts that position.
It is also the opinion of this Division that only when an employe is called on
emergency road work does Rule 7(a) and (b) apply. It does not apply to Carmen when
they are performing road work not of an emergency nature.
Petitioner contends that for decades, Carmen have been paid for the noon meal
when working away from their home point regardless of the work performed. We do
not doubt that statement. In spite of it, that practice cannot be raised to the
level of a practice that modifies the clear language of the Agreement. The language
of Rule 7 is clear. It applies to Carmen when performing emergency road work. it
cannot be construed to apply when Carmen are only performing normal craft duties
away from their home point. In the instant case, the record reveals that the Claimants
involved reported to work at their usual reporting point and were transported to
the work site where the cars to be worked on were located. The work was performed,
or a day's work put in, and the Carmen were then transported to their reporting
point where they punched out and went home. The situation that exists here is not
of an emergency nature, as contemplated by Rule 7. We therefore shall deny this
claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Nancy
Executive Secretary
Dated at Chicago, Illinois, this 30th day of January 1985.