Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27192
THIRD DIVISION Docket No. MW-26729
88-3-85-3-486
The Third Division consisted of the regular members and in
addition Referee Marty E. Zusman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Chesapeake and Ohio Railway Company (Northern Region)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused to
compensate Messrs. R. Cotto, F. Figueroa, Jr., M. Diaz, F. Cruz, T. Haff, B.
Glaspy, B. Blackburn, L. Mulero, H. Cann, P. Bitler, A. Gallarzo, A. Matox, M.
Cruz, M. Hernandez, G. Carters, J. Blanco, M. Ramez, M. Ramirez, H. Diaz, F.
Alarcon, G. Chaidez, J. Carrero, V. Torres, A. Diaz, A. Velazquez, J. Studt,
T. Velazquez, R. Sheffer, A. Herrera, M. Buss, R. Halls, J. Kimble, J.
Maycott, P. Seath, J. Gonyon, H. Nelson, E. Ritchie for the overtime service
they performed from 2:30 P.M. to 7:30 P.M. on June 27, 1984 (System File
C-TC-2160(a)/MG-4841).
(2) The Claimants listed in Part (1) hereof shall each be allowed
five (5) hours of pay at their respective time and one-half rates."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or employees involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
On June 27, 1984, the Large Tie Unit was moved from Port Huron,
Michigan. The record indicates that the force was notified that their new
headquarters was to be Sebewaing, Michigan. The force reported for work at
6:00 AM at Port Huron and was transported by the Carrier to Sebewaing. There
is no dispute that they arrived at Sebewaing at 2:30 PM and found no camp cars
waiting for them. The Production Supervisor ended their day at 2:30 PM allowing them a lodging allow
arrived.
Form 1 Award No. 27192
Page 2 Docket No. MW-26729
88-3-85-3-486
By letter of August 13, 1984, the Organization filed a time claim on
behalf of all members of the force, in that they were not paid continuously
until the camp cars arrived at 7:30 PM. The Organization argues that Carrier
violated Rule 28 which states:
"RULE 28 BEGINNING AND END OF DAY
Employees' time will start _and _end _at designated
tool houses, camp cars or shops, except employees
not housed in camp cars, whose time will start and
end at designated locations which shall not be
changed without first giving thirty-six (36) hours'
notice." (emphasis added)
It is the Carrier's position that Claimants received proper notice
that their headquarters was to be changed, received eight hours pay to the
time they arrived at Sebewaing and a lodging allowance since the camp cars
were not there. Our review of the Agreement finds that the allowance was paid
under Rule 51 which states in pertinent part:
"RULE 51 CAMP CARS
(D) For employees who are employed in a type of
service, the nature of which regularly requires
them throughout their work week to live away from
home in camp cars..., if lodging is not furnished
by the Railway Company, the employee shall be
reimbursed for the actual reasonable expense of
such lodging...
It is the Carrier's position that there has been no violation of any part of
the Agreement. The Carrier argues that Rule 28 does not require payment "at
the overtime rate account waiting for their camp cars."
The Board finds that the Organization's position fails. It is clear
from Rule 28 that the designated beginning and end of the employees day is the
camp car. It is clear that such must be provided by the Carrier. If, as in
the instant case, the Carrier fails to provide a camp car, the parties have
negotiated a reimbursed expense which was paid by the Carrier herein. We find
no evidence of record or from the Agreement as a whole that the parties intended to require the Carr
cars arrived. We find no such Rule which requires this Carrier action.
Unlike Third Division Award 2453 wherein the parties agreed under
their Rules that payment was due, no agreement exists herein under these
instant Rules. This Board finds that under these circumstances Carrier's use
of Rule 51 was correct as lodging was not furnished. While in a theoretical
sense the Carrier "furnished" lodging, it was clearly unavailable for use. It
was neither handy nor made available such as would constitute the meaning of
being provided or furnished. As such, the Claim must be denied.
Form 1 Award No. 27192
Page 3 Docket No. MW-26729
88-3-85-3-486
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:,
Nancy J. -Executive Secretary
Dated at Chicago, Illinois, this 23rd day of June 1988.