NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Because of inadequate passenger train schedules, the occupants of these relief assignments have for many years been authorized to utilize their personal automobiles for travel between stations in their assignments and have been allowed 7 cents per mile for such travel. Such allowance has always been computed on the basis of highway mileage between the successive stations in their relief assignment.
In the instance of Relief Assignment No. 28, the occupants of this position have been allowed 88 miles per week based on 44 miles travel from Owen to C. F. Yard, 32 miles from C. F, Yard to Thorp and 12 miles from Thorp to Owen each work week.
The occupants of Relief Assignment No. 33 have been allowed 94 miles per week based on 12 miles travel from Stevens Point to Junction City, 35 miles from Junction City to Spencer, 10 miles from Spencer to Marshfield and 37 miles from Marshfield to Stevens Point each work week.
Commencing with the month of February, 1963, claimants submitted automobile mileage expense accounts apparently based on daily round trip mileage between each station in their assignment and their "home station." Mr. Lis claimed round trip mileage from Owen for each day assigned to perform relief work at C. F. Yard or Thorp, and Mr. Vogt claimed round trip mileage from Stevens Point for each day assigned to perform relief work at Junction City, Spencer and Marshfield. In Mr. Lis's instance this amounted to 200 miles per week and in Mr. Vogt's, 192 miles per week.
These expense accounts were disallowed and revised accounts conforming to past practice and policy were submitted and honored.
Copies of schedule agreement between the parties to this dispute, effective July 1, 1956, and supplements thereto, are on file with the Board and are made a part of this record by reference. Nowhere in these agreements is there reference to or provision for designation or recognition of a "home station" or headquarters for regularly assigned relief employees whose assignments embrace more than one station.
OPINION OF BOARD: Claimant J. M. Vogt is occupant of Relief Position No. 33 residing at Stephens Point, Wisconsin, a station on Carrier's line where he works the first and last days of his work week, between which he works a day each in Junction City, Spencer and Marshfield, Wisconsin. No transportation is furnished him, he receives no expense allowance and he reaches the three points via his automobile for which he is paid mileage at the agreed rate for one round trip per week from Stephens Point to Spencer, the farthest point within his assignment.
Claimant Alois Lis is occupant of Relief Position No. 28 residing at Owen, Wisconsin where he works the first two days of his week, then relieving two days at Chippewa Falls, Wisconsin Yard and one day at Thorp, Wisconsin. He similarly receives no transportation or expense allowance, furnishes his own car and is paid one round trip from home to the farthest point, Chippewa Falls Yard.
Employees contend that Claimants are entitled to mileage at the agreed rate to and from their home station on each day of travel since no transportation for necessary travel is provided and no expense allowance is paid for remaining away from home and that paying only one round trip per week to
the farthest point is a violation of the free transportation requirement of Rule 27 of the Agreement, to wit:
Carrier responds that no home station has been designated for these positions. Therefore, there is no basis for such mileage computation. It is further urged that Carrier's method of payment has been unchanged for many years and that the fact that no previous claim has arisen constitutes binding acquiescence and that when Claimants bid into these positions they assumed all conditions of the position, presumably including such acquiescence.
Carrier urges that a recognition of the residence station of Claimants as home station would be invading the rights of the parties which can only be gained at the bargaining table, but such is not the case. Where no home station has been designated as here, Carrier could at any time make such designations without necessity of bargaining. In the opinion of the Board Carrier has effectively done so by the computation of mileage from the residence station of Claimants.
Claimants' home stations must be their residence stations unless otherwise designated by Carrier. Carrier cannot argue that they exist in a vacuum and thus avoid the Agreement simply because Carrier has not seen fit to exercise its right and has thus avoided its responsibility to formally designated a home station. (Award 10805).
To so argue would allow the Carrier on the one hand to contract for free transportation and on the other hand to withhold it. The fact that expense allowance is forbidden reinforces such interpretation.
As to acquiescence, Carrier has cited numerous awards dealing with grievances arising from alleged violations of various scope rules. Acquiescence and industry-wide practice have a particular relevance in scope rule matters, but in the one case cited dealing with compensation, Award 13864, this Board not only does not accept the finding as precedent but wholly rejects the opinion of that Board. When compensation in any form has been bargained for, the right to receive that compensation cannot be waived for an employee by his predecessor.
FINDINGS: The Third Division of the Adjustment Board, 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