BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS,
FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: This is a claim of the System Committee of the Brotherhood that:
(1) The Carrier has violated and continues to violate the rules of the Clerks' Agreement by its failure to properly compensate Mr. E. M. Hawkins, and all other employes who have worked Relief Position No. 3 at Oakland subsequent to September 1, 1949, for waiting time at Stockton, California, when going to and returning from the position of Storekeeper at that point, on which they relieved two days each week.
(2) Mr. E. M. Hawkins and other employes affected shall now be compensated for travel and waiting time, as well as away from home expense and automobile allowance, to which they are entitled, less the allowance previously made for travel time.
EMPLOYES' STATEMENT OF FACTS: As a result of the Chicago Agreement of March 19, 1949, several disputes arose on this property with respect to the wording to be incorporated in some of our Rules in order to comply with the intent of that agreement. One of such disputes involved the question of how the agreement should be revised to conform with the intent of Article II, Section 3 (g) (Travel Time). As a result of this dispute the matter was referred to the Forty-Hour Week Committee which rendered its Decision No. 6, and as a result thereof, Rule 23 (d), hereinafter quoted, was adopted through Supplemental Agreement dated August 8, 1960, effective September 1, 1949.
Because of the inauguration of the 40-hour week, effective September 1, 1949, a Relief Position was created and advertised in Clerks' Circular No. 17 dated Sept. 1, 1949, (Employes' Exhibit "A") to perform relief service as follows:
Clerk Hawkins traveled to Stockton by Train No. 2 and has been compensated for travel time and waiting time from arrival at Stockton until he went to work at 7:30 A. M. the following morning, less overpayment of expenses under Paragraph 5 of Rule 23 (d).
The other claimants did not use the authorized means of travel but instead drove their private automobiles, arriving Stockton about 7:30 A. M. on Thursday and departing Friday after completion of work.
In attempting to reach some settlement of this dispute, several compromises were discussed in conferences but the final disagreement is expressed by the General Chairman in his letter dated July 21, 1953, as follows:
Employes have been allowed travel time but it is Carrier's position an employe is entitled to payment far only actual waiting time and not automatically entitled to payment for such time when he does no waiting.
Rule 23 (d), Paragraph 3, states, "If the time consumed in actual travel, including waiting time enroute, from the headquarters point to the work locations, together with necessary time spent waiting for the employe's shift to start . . . .
Nothing in the Rule provides any payment for constructive waiting time; that is, "had he waited". A different method of transportation was chosen unilaterally by the employe for his own convenience and he thus eliminated any waiting time at Stockton.
The claim here presented also reads to cover waiting time "returning" from position on which they relieved at Stockton. It is Carrier's understanding this portion of the claim had been settled in conference and that no disagreement exists on this issue. Employes were allowed expenses on Fridays, including lodgings when such was used on Friday night, and travel time. Such employes were unable to return to their headquarters at Oakland on Friday, and under Paragraph 5, Rule 23 (d), are only entitled to expenses and time actually working or traveling. Again, employes leaving by automobile upon completion of work on Friday did not have any waiting time for transportation.
The claim here presented includes, "with interest thereon at the rate of 6% per annum from September 11 1949 . .". There is no provision of the current Agreement providing for "interest" much less the rate of 6%". The General Chairman offers no Schedule Rule to support his claim in this respect. Under the Railway Labor Act, your Honorable Board is limited to disputes growing out of grievances, or out of interpretation or application of agreements, and this issue can only be considered a request for a new Rule which is a matter of negotiation beyond the jurisdiction of your Board.
You are urged to deny the claim here presented for non-existent waiting time, for any waiting time returning to headquarters, and for the demand for interest. There is no merit under the current Agreement for the demand for arbitrary payment of waiting time when the employe does not actually "wait," or for any interest payment whatsoever.
OPINION OF BOARD: The claim is for three separate allowances, (1) travel and waiting time, (2) away from home expense and (3) automobile allowance under different sections of Rule 23 (d). 6982-14 1300
This claim arose because subsequent to September 23, 1949 the Carrier provided rail and bus transportation and designated the trains and/or buses to be used between Oakland and Stockton, but some occupants of the position involved chose to use their own automobile instead of the transportation provided by the Carrier. It is here contended that such employes should be paid the same travel and waiting time as would accrue if they used the transportation provided by the Carrier. It will be noted that the rule provides pay for "actual" travel time and "necessary" waiting time so it does not support that contention.
The employe is entitled under the rule to actual travel time when using his automobile but, since there could then be no "necessary" waiting time, and since the rule oes not provide pay for constructive waiting time, he is not then entitled to be paid for any waiting time.
Subsection 5 of Rule 23 (d) governs payment for away from home expense. It reads as follows:
First it is contended that employes who chose to drive their own automobile from Oakland to Stockton on each of the days they performed relief at that point are entitled to away from home expense allowance. The rule provides for reimbursement for actual necessary" expense so it does not support that contention.
Next it is contended that meal and lodging expense is payable for two days but at all times there is only one 24 hour period, following the time when the employe's last shift began, involved in this assignment so the rule does not support that contention.
Finally it appears that the rule was agreed upon on August S, 1950 but made effective September 1, 1949, and that the Carrier declined to reimburse employes for meals and lodging except upon production of receipts for such expenses. Requiring receipts after notice is perfectly proper but there is no sound basis for requiring them retroactively. In accordance with the rule employes should be reimbursed for any actual necessary costs for that retroactive period.
Subsection 4 of Rule 23 (d) governs automobile and other transportation allowances. It reads as follows: 6982-15 1301
Subsequent to September 23, 1949 the Carrier provided transportation without charge and since the rule is in the alternative no claim for automobile allowance is valid thereafter. However for the period of time prior to that date the rule clearly requires the Carrier to reimburse employes who used their own private automobile on the basis of the established mileage allowance.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and