NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Joseph A.Sickles, Referee


Award Number 21126 Docket Number MW•21026


(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:(

(Burlington Northern Inc.

STATEMENT OF CLAIM :Claim of the System Colmlittee of the Brotherhood that : The Carrier should pay to the widow of Sectionman Gerald w.Van

Skike tne benefits set forth in "Appendix H",namely the sum of $100,000 less

any amounts payable under group Policy Contract GA-23000 of the Travelers In• surance Company or any other medical or insurance policy or plui paid for in its entirety by the Carrier (System File 17•3/MW-46 9/18/72).


OPINION OF BRD:

The fact•and circumatancee contained in thie record are essentially the same as those set forth and considered in

our Award No.21125. In that Award, we contemplated the various arguments and defenses of the parties and disposed of same. No purpose is served by detailed repetition in this document. Suffice it to say that the 'contents of Award No.21125 are incorporated herein by reference.


FINDINGS:'nle 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 Employee involved in this dispute are respectively carrier and Employee 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.

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A W A R D


Claim sustained.


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It 9'


NATIONAL BAILROAD ADJUSTMENT BOARD

By ONeT of Thi,:d Diviaion


ATrEST:


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1pf

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Executive Secretary


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.


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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 .-


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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

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

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'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

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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!


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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.


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G.M .Youhn


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w.F.Euker


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