NATIONAL RAILROAD ADJUSTMENT BOARD THIRD DIVISION

Joseph A.Sickles, Referee

Award Number 21125

Docket Number MW-21031

(Brotherhood of Maintenance of Way l!'mployes

PARTIES TO DISPUTE: (

(Burlington Northern Inc.

STATEMENT OF CLAIM:Claim of the System Committee of the Brotherhood that:

Because of the injuries sustained on Januaty 4, 1972, the Carrier should pay to Messrs.R.G.Almaguer and S.c.Artiaga the benefita set forth in Article V B(3) of "Appendix H"(System File 17-3/MW-46 5/17/72).

OPINION OP BOa\lU>: At about 12:15 a.m., on Januaty 4, 1972, the Galesburg Roadmaater, Jacobs, called Foreman Almaguer and advised

him to report to work for overtime service in the Galesburg ?e'ftllinal. Almaguer contacted Sectiomnen Artiaga and Vanskike. All three men were proceeding to work in Artiaga 's automobile·when it was involved in an accident which resulted in injuty to Almaguer and Artiaga, and the death of VanSkika.

This docket concerns the claims of Almaguer and Artiaga. 'nle claim

on behalf of VanSkike is before this Board in Docket MW-21026. Award No. 21126.

Rule 30.C specifies that:

"•••the time of an employe who ia called after release

f rom duty to report for work will begin at the time called•••"

There is no question,based upon the above-cited rule, that Claim­ ants were on the Carrier's payroll at the time of the accident. Article V A of the so-called "off-track vehicle agreement"between the parties provides t,hat:

"'nlis Article is intended to cover accidents involving employes covered by this Agreement while such employee are riding in, boarding, or alighting from off track vehicles authorized by the Carrier and are

(l) deadheading under orders or

( 2) being transported at Carrier expenae."

The "Exclusions" of Paragraph D i.J1clude:

"(6) While an employe i8 cOllllalting to and/or from his residence or place of business.n

carrier has attached to its Submission various documents which relate to civil litigation in this matter . The Organization objects to the inclusion of those documents because they do not constitute a part of

the handling of the matter on the property. While the documents are back­ ground infonnation and of interest to a better understanding of the circum­ stances which led to the claim, it is questionable that, in.the strict sense, they constitute a part of the precise handling on the property, as that con­ cept has developed before this Board. However, a consideration of the Court related documentation does not alter our final disposition of the dispute, and accordingly, for our purposes in this particular case, we have considered all of the documents in the docket.

As Carrier properly notes, we may not limit our review of the dis­ pute solely to the question of "exclusions",but rather, we tm1st assure that Claimants have presented evidence to support their conclusion that all basic elements for liability under the TUle are established.

In this regard, Carrier concedes that there was an accident which involved employes covered by the Agreement, and that the employee were riding in an off-track vehicle. But, the Carrier disputes that the use of a private automobile was "authorized" or that Claimants were deadheading under orders or being transported at Carrier expense. Accordingly, Carrier concludes that Claimants were merely "c0111DUting" from their residence, and that coverage is consequently excluded under the Agreement.

The record is rather clear that the employee were never reimbursed for travel expense when using their private vehicles in circumatances such as presented here. Although the Organization suggests that, nonetheless,

under this record the Board could conclude that there was a transportation at Carrier expense, we do not find it necessary to explore that concept. Under the rule, it is not necessary to find a "deadheading under orders",2 a trans­ portation at Carrier expense. Our disposition of the "deadheading" question renders further exploration of the "transportation at Carrier expense" argu­

ment unnecessary.

At Page 30 of its Submission to this Board, Carrier concedes that the tule:

"•••creates a certain degree of ambiguity as to precisely what 1Dll8t be 'authorized by the Carrier'•••"

Moreover, the Carrier concedes that the rule does not mandate a specific, direct statement of precise authority to operate a certain designated vehicle. Rather, it is recognized that "authority" can reasonably be inferred

from statements and actions. We agree with Carrier that the record does not show that its agents had specifically authorized the use of Artiaga''s 1969 Volkswagen Squareback on the day in question. But that omission is not fatal to the Claimants'case.

Whatever may have been the Claimants 'nonnal mode of transportation conceniing regular duty hours is not particularly relevant to this dispute. However,baaed upon the "under pay" concepts of Rule 30.C, we feel that 'know­ ledge on the part of the Carrier of Claimants'normal practices when called for the type of overtime here in issue is quite important to the question of "authority.11 The record is singularly clear that the two Claimants here, and the individual involved in·Award No.21126, when called for overtime, always

used a personal vehicle of one of the three to journey the 15 or 16 miles fTom their residences to the Galesburg Terminal. There was no Carrier paHenger or freight train service reasonably available at the times of the calls •and no indication of reasonable availability of other types of public transportation at hours such &JJ involved here. If the Claimants bad not employed the means of private vehicles, it is questionable that they would have been able to re­ spond to overtime calls in norm&l circumstances, and rather obvious that they could not have responded on the night in question.

Of equal significance is the Carrier's knowledge of these factors.

The rather extensive records before m fails to include any statements from Road.master Jacobs - who called the crew on January 4, 1972• or from other Carrier Officials who might customarily perform similar functions. Thus,we must draw all inferences reasonably concluded from the evidence, and find

that Carrier knew, or reasonably should have known, that there was an absence

of Carrier (or public) transportation and that the employee would drive private vehicles to report for overtime work. A't'llled with that knowledge, Carrier placed Rule 30.C into operation •and thus, placed the men t.m.der pay. It is reasonable to conclude that not only did the Carrier "authorize" the employee

to utilize private transportation,but, in fact, under all of the circumstances, they "encouraged" it - as the only reasonably available meana to facilitate

the reporting to perform productive work, and to mtn1mize undue expenditures of money for the "unproductive" time consumed in reporting to the work sites.

Carrier denies that the employee were "deadheading under orders." While it is questionable that said defense was raised, in those tems,while this matter was the subject of specific handling on the ptoperty, it was raised in Award No.-21126. In addition, that argument is directly related to the properly raised defense of "coumuting" so as to be properly before us. The Carrier freely concedes that there have been very few Awards which have dealt with a definition of the term "deadheading." We have considered the few that were cited, but find that they are of little aaaistance. It may be that certain

Award Number 21125 Docket Number MW-21031

Page 4

of the Awards used the term in a restrictive sense and spoke in terms of "points on the railroad." But, as we have considered those Awards, they did not focus upon an issue such ·as this, and we feel that their conclusions are rather neutral to our consideration.

We have noted Carrier's statement, at Page 37 of its Submission, that the word "deadheading11 ".. • i.s not used anywhere in the BN•BMWE Agree..

ment,. except in the Off..Track Ve ticle Article." We obviouslzcannot su!?_scr:i.be, however, to its next stated conclusion that such a concept Ldeadheading/ "•.. manifestly does not exist in this contract or in this context." In point of fact, because the term is not modified elsewhere in the·Agreement, we would appear to have a wider latitude in applying it to a given set of circumstances.

In defining the term, it is important to recognize the put'J)ose of the Article in question. It is to cover accidents to employee riding in "off-track vehicles." Obviously then, the parties did not intend a limited definition dealing solely with transportation via rail. The existence of Rule 30.C leads us to conclude that the Cla:f.Jnants fell within the contemplation of the rule.

Had they not been under pay, then other considerations - such as the exclu­ sionary language - would be of paramount importance. But, as of the time of the calls, the employee were on the active payroll of Carrier .. at premium

rates .. and were traveling at the authority of Carrier. Surely, various con­ cepts of agency were il'l existence as a result of the call-in, and agency con"

cepts may not be limited solely to Carrier-owned property. Not only do we fin that they were deadheading, but, based upon our discussion of "authority", dis­ cussed above, we feel that they were "under orders.11

Carrir suggests that the application of Rule 30.C is not material to

a resolution of this dispute, and notes that an employe may be under pay conceni• ing all of the exclusions. We do not read the :rule as being so eaaily defined.

It may be that an employe is under pay while riding in an- off-track vehicle, au thorized by Carrier,but be excluded from coverag because of ·Paragraph D(4). At the same time, an employe might not be under pay,but still be covered because

he is being transported at Carrier expense. In short, we do not feel that we reach the exclusion of Paragraph D(6)because the aeaert:ed exclusion concerning "coamiting" has been disposed. of by our findings regarding "deadheading." As noted, but for Rule 30.C, we might be inclined to agree that the employee were not entitled to recovery. But, simply stated, when an hourly rated employe is "on the payroll",we do not feel that he is 11c011111Uting11 ·1n the accepted sense of the word. Nor do we feel that we are in conflict with the cited IRS considera­ tions. Bile 30.C converts this dispute into quite another matter than a personal

choice of location of private residence.

The claim seeks benefits set forth in Article V B(3)of "Appendix H." We read the claim as seeking only benefits to which they are entitled under their individual circumstances.

Award Number Docket Number

21125

MW-21031

Page 5

FINDINGS :The Third Division of the Adjustment Board, upon the whole record and all the evidence,finds and holds:

'that the parties waived oral hearing;

That the Carrier·and the Employes involved in this dispute are respectively Carr.I.er and Emp1oyes 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

That the Agreement was violated.

A W A R. D

. ATTEST:

Claim sustained·.

&.

(J,/,11. ..1

Executive ecretary

NATIONAL M.ILIOAD ADJUS'.lMENT BOAIU>

By Order of thiri Dlviaioo

Dated at Chicago, Illinois, this 16th day of July 1976.

DISSENT O.F CARR!ER M.F-1,ffiERS‌

to

AWARD 21125 lXlCKEl' J.fW-21031 nnd AWAilD 21126 IOCKE".'T MS-21026

{Referee Sickl.es)

The majority in this case found Ru.le 30 (c) to be determinative of the resu1t on every material issue. Such extensive reliance on that single prevision was, in the final ana.lysis, misplaced. Such a narrmr focus led the majority to substitute a chain of questionable inferences for an affirmative showing, o overlook the most obvious source of precedent in defining a key term,

and to bruoh aside logic, and even dictionary definitions, in defining another key term.

1he majority found that the use of Mr.Artiaga's 1969 Volkswagen vas "authorized by the carrier." This finding was based on a whole chain of inferences: the claiml\!lt 1s norm., l mode of transportation when called fer overtime 'Work, and the Currier's ::mpposed knowledge of s:1.me; the length

oi' the journey which they would ha.ve to undertake, a.nd the Carrier's supposed know.ledge of same; the non-availability of train service , and the Carrier 's supposed knowledge of same; the non-availability of' alternative i'orms of -public transportation, ani:::. the Carrier's supposed lmowledge of same. All of these infrences, taken together, were cumulated, and culminated, in the holding that:

the Carrier kn.ew, or reasonably should have known ··tha.t the employes -would drive private vt::hiclea to report .for overtime work.

The result was a. "shoi.Jing" on the "authorized by the carrier" con:iition, that was tenuous in the extreme.

The majority 's holding that the claimants were "dead.heading under orders" is gxounded on the very existence of Rule 30 (c), and the resu1ting fact that the claimants were under pay while on their journey. But, in so holding, certain pertinent factors are either glossed over, or entirely ignored.

The fact of the matter is that the Off-Track Vehicle Agreement -was initially negotiated with the Brotherhood of .Railroad Trainmen, and was·drpfted in

the terms and contexts applicable to that craft. There, "dea.dhcading under orders" is a commonly understood term, and something that most nny trainman does, whether by rail,bus or private auto, ith at least

1·easonable f requency.

('1C::C i!itO

the non-oper..:rting craf t cont. ext 11ichout 11:r.ls:.n,. e. iJot one ·,.'.ox·d wa.o c:1s.nGed. A.s a conseq1..:.ence, tiOmeof the J.ang1.1s\gef its less than ec,:oz1"1).01u1ly irrto its ne,; cc11trcc··t/u;: 1. ,) ·:text .-

A1though p.i.r_i::sorting to the cmTtr::.i:ry, the ,\wu.rd d.oe:3 r:ot d.c,.f in, th(: term l!deacitleading under orderH 11 in the Maintenance of WTy context. Rather, j t. simply holds that these ele.:irn::u1t8 were "cleadhc.:3.ding under 01·ders. 11 Tn' j_ r, utilitar j_1.m 11de:f inition 11 succeeds ln eliding the ra.ct that, at lee.st tn the original cont ractual ccmtext, tht:! travel here Wt>.s not 11deadhea1Ung under ord.ers ." It -was not tre.vel, by private auto, bus, or cthe:t"\1ise, f rom one :9oint on the-railroad ( the hes1.d­

q_uart ers ) to lmcther ( the ;,mrk site) . Tht'l.t sort of travel is 11dead­ he11ding. II See Award Ho. 8 of Public Law:&Jard no. 120 , u•:(lT-=I<: v.CNW

( B1uckwell)';Award 1818 of Speclal Board of Ad,ju stm•:mt No. 235, 'iJ'fU v c:NWI1 ( Clm,ter) , A-ward No. J. of Puhl.ic La•..1 J)::;Ard Ho. 546 U;I'U v PC

( Haller}, and Third Division Award t35Tl, ORCB v Pullman (:3,,::nxpliner).

Correspondingly, this _w, ,'2 t r:v.rel f rom bome to the hee.dmlcirter!J point .

f\-i.:L .3 J ::: rt of "t t,,., J"-1rel is not d.eEtdl'xe:rtd Lns'> S;?c; F1 i (-- t:1t Dt· .r1t> 5.e:n .f.\su .l''(l

,. ('... 'i \>'jr_.,I' 1.X.JJ..a...J T.....;'',Il'..?i V

[' 4"10

• •;,,.,'I'.. .i.t.

(d·.,";.:-:; c-..lL.<-l.le' d ,n.d.1,. .l1..,.J·;, }0<'A'..+V

r. <1.>,,.. 1',...........;,:::;-,;;.. ";i:-.''1,,.4",>' 4.i..l',>-J."\-H,,4.J.l,;1"_.\J ,

,,o.. !,J, .

""hJ..:t'd··

'',-. c). 9 'DT ,ii' 1 ·,,,TV ( P,).'sd )

Di.vls::l.on Jrna:cd 15831, '.£C_EU v :.cUIR ( Ives ) , Award 39 of Pnl:lic Law Eoo.1:'d

,;., ·J • 1 .L>.....,,,.l J:AJ D .-... J •

'l'hn.t the c1aima.nt s vere 1mder pay while engagul in th.i.G jou.rn Y, <loes

not t r;e,.nst'orr:'.t ·t:he treved. into r;om,, t h h;g it, c.therwL,e ls not o In the

,·;,-r:: c1. ati.Df;· c:i. c:>Sts, an crnploye can b1"! !'l?:ceiYing l.eld-nway-from.Abome­ t.errninal rl8.:rr:2.,:: 1ts wh.tle :.nn.ldng the ,jou:tnfY f :c o: 1 his hoo.e ( or the nu1t,1b.L(? ltJ<l{ing) to tl1e t:r't r1 .y o.rd. } ov.r rt1T!X'_, tIH1.t t:rr;.ve1. h,iJ.s 1te·­

·pe·atei:tl:f beer1 !:H:l(l .!:.1<Jt t(l ·:::rJnr3't ittt t, 11 d.et .D b St:::, .l\.i1nrd. 1\k, 8

of i'ublic Law Hoard Ne • .1J14o, U'I"J ·r J?.n (:Sr'C\m ) , J:,:,;:;;.,nI 20',?. of dfH?ci nlBon:niof Ad,jtwtment No. 5C/:, uru v Cl\W (E·.)yd ) and JT1rst Division Am".rd. 22879, BLT v. BH ( D)lnick ) .

The concept of deadheo.ding is more than a little alien to the non­ operating crs,f t context .. In that sltna.tion, it "s;ould see::1 n:ost app.copriate to draw on the principler, that have been e.Luclclated,

over time, in the context where "deadheadingn hB.s vitt>.lity. To take

the paucity o:t' contractual provisior.s on a subject as a license to

a. vider lati'tutle in applying it 11 io a. novel approach, to say the lea.st. But, by finding that the condition applies -without even def ining it, the Award t akes ,just such latitude.

Another serious error cr.itmnitt ed by the ren.,jority relates to th;dr con­ clusion that ''Had they not t een under p".l.y, then other cons idern.tions - such as the exclusionary language .. would be of paramount i.mporta.nce. ''

2

'J:i:1 2 f act ti:F\t e.nploycs arc unc:.,.··r :p::y is viholly i:t·relcv: .1t to the issue rcgardir:.1; the applic.::i.t ion of L:1e: c:::;.::lu:;ior:ci:,.:r .lc i:,c,,:.1:1 2. 1\sswning O.:CGJ.lendo, the majority convincingly established that clairrnts were covered by

A rticle V, Paragraph ( n) , i.e., t!:ley -were ernployes covered by the Acree• ment vho l.ere riding in vehicles 2.utr.orl?..vl by Crrier and were either deadr,r,;t,.d.ir,g under era.er,, or ,J c.:inG tr<'ms1:1or tr::d at Ca.:·rier expense, then you determine i:f thE:·y were covered by any of the exclusions. For example,

a.n employe deadheading under po.y in an authorized vehicle who is in­ toxicated, is exclude1 from coverage under Paragraph ( d) (4); or the same employe under the same circumstances engaged in a. speed contest is excluded under Paragraph (d) (5), or the same employe under the same circumstances -who is commuting is excluded under Para.graph (d) (6).

Tn' e majority 's holding that -when he is deadhea.ding under pay he is not commuting, completely wipes out; the exception under such circumstances. If dea.d.hcadiug under pay or being transport ed at Carrier expense 'Would not be co::1rr.ating then there va.s no need :for the exception to the general rule. In short, the ma.jority f inds that •,1hen the general rule is applicH.ble, one of the exceptions will not apply.

The ma,jority completely ignored the cardinal rule oi' contract construction that meaning should be given to all parts of the contract so they a.re consistent, harmonious and sensible and that various sections of nn agreerr..ent are to be construed. torether and the language of 'isolated provisiori'3 must be considered in connection ,lith other pE!rtinent provisions o:t' the cont,ract . Award 18379 (O 'Brien) .

It is t1'ue the ma jority concer:led Pc..r,:>.grph ( d) ( l;.) might exclucle the claimant:;; 1'ro!l covcr"r'.ge under the f acts of this case and we can surmise that the same coneer,.:, ion would be n.pplicable to ( d) ( 5) but if so, then why the state:;1er.t; !iwe do not f eel that we reach the exclusion of Para.gr::i.r,,:1 (d) (6) because the asa crted exclusion concerning • commuting• has beer1 disposed of by our f indings regarding dead.heading."

The purpo.se of the exclusions was to carve out exceptions -where the employes would othe:r..:ise be covered by the general rule. Tn' e majority's conclusions in this case that they do not reach the exceptions because the general. rule is applicable, emasculate3 the Agreement and m'.l.k.cs a mockery of the interpretive processes. In other cases, the majority exercising the same license of authorship, could quite logically ex­ punge other exceptions until eventually there a1·e none remaining. It

is pointless for Carriers to :nuke agreements specif ically prese1-dng

some benefits if thoae benefits a.re diluted by interpretation.

To paraphrase Third Division Award 21064, BRS v LN (S:1.ckles), if the parties bad intended to limit the "commuting" exclusion to cases -where the emnloyes were not under pay, it was incumbent upon the Petitioner to submit- evidence to-support such a conclusion. Here, the record is

bereft of such evidence!

3

7:I' ).f1ese rc-a.Go11:;, t',.ntl in 1rJc;-;; o.C t11e r·v - s:r1t i.JJ. i! }Jlicat ions oi.. these

holdingn, we must respectfully dissent.

"

u·;

/, l \

G.M .Youhn

. /

- I '

_,,,,· ,/

/

/ .

w.F.Euker