THIRD DIVISION
(Supplemental)
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: Mr. D. 0. Daigre was regularly assigned to the position of Trackman with headquarters at Port Gibson, Mississippi.
On January 22, 1958, the claimant was directed and assigned to relieve the regular Section Foreman at Sibley, Louisiana, effective as of January 23, 1958.
Since passenger train service was not available, the claimant used his personal automobile and consumed four hours in advance of and four hours following the regular work period on January 23 and February 7, 1958, in going from and returning to his regular headquarters and Sibley, Louisiana.
Although the claimant was allowed automobile mileage and meals and lodging expense in the amount of $77.88 covering the period from January 23 through February 7, 1958, the claimant was advised in a letter dated February 17, 1958 that the time consumed in going from and returning to his regular headquarters and Sibley, Louisiana, on January 23 and February 7, 1958 was disallowed and eliminated from the time rolls.
Consequently, the subject claim was presented and progressed in the usual and customary manner on the property, but was declined at all stages of the appeals procedure.
recognized as coming under the travel time pay provisions of Rule 41(b). Should the Organization attempt to do here what it did in the identical case now pending before the Board under Docket MW-10784-remain silent until its last written argument to the Board and then assert the practice in dispute to be diametrically opposed to the facts-the Board should consider the assertion as belated and improperly before it.
The Carrier submits that it has shown that the travel time pay requested here is not justified because:
OPINION OF BOARD: Claimant, Senior Section Laborer, D. 0. Daigre, filled a temporary vacancy of Section Foreman at Sibley, Louisiana, during the period from January 23,1958 to February 7, 1958. He traveled four hours to reach his assignment at Sibley and four more hours after the completion of the work to return to Port Gibson, Mississippi, his regular headquarters. Carrier allowed him automobile mileage and meals during the travel times.
Petitioner relies on Rule 41 to sustain his claim for payment for the eight hours consumed in traveling to and from the relief position.
Award 11442, which concerned an identical dispute and the same parties, sustained the claim. In the instant case Carrier reiterates the contentions submitted in that dispute, but in addition, it urges that the claim be denied because under past practice, Rule 41 has never been interpreted to allow payment for time consumed in traveling under similar circumstances. Claimant, on the other hand, argues that since the exhibits presented as evidence of the practice were not introduced during the handling of the claim on the property, they should not be considered by the Board. Moreover, he points out, that even if considered, the exhibits are not significant, because they do not provide evidence directly related to the situation under consideration.
We are not convinced from the record that Carrier has clearly established the existence of a past practice which does not allow payment for travel 12334-1s 60S
time under similar circumstances. After consideration of the other contentions presented by Carrier, urging its application of Rule 41, we find that we are in agreement with the interpretation of that Rule enunciated in Award 11442. Accordingly, we also hold that the Agreement was violated, and the claim has merit.
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
CARRIER MEMBERS' DISSENT TO AWARD 12334,
DOCKET MW-11700
The record clearly supports carrier's statements regarding past practice; however, such practice is unnecessary to deny this claim.
Under the clear provisions of Rule 41 (d), only those "who desire to fill" temporary vacancies could be used. Petitioner never disputed the fact that claimant had a free choice and in the exercise of that choice, voluntarily filled the vacancy, thereby exercising his seniority which precluded him from the provisions of Rule 41 (b), even if erroneously held that Rule 41 (d) was inapplicable.
The dissent to Award 11442 is hereby adopted and made a part of this dissent.