Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27916
THIRD DIVISION Docket No. MW-27247
89-3-86-3-336
The Third Division consisted of the regular members and in
addition Referee Joseph A. Sickles when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Delaware and Hudson Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed and refused
to reimburse System Equipment Operator F. Lipka for travel, meal and lodging
expenses he incurred while working away from home (System Case 16.85/BMWE-1785).
(2) The claimant shall be reimbursed for the travel, meal and lodging expenses described in Part
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 employes 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.
In 1980, the Carrier and Organization agreed to a new classification
of System Equipment Operator who would be required to protect assignments
systemwide. The parties also agreed to a schedule of payments for employee
expenses when a System Equipment Operator was assigned to work at a location
distant from the designated headquarters.
Pertinent parts of the 1980 Agreement provide:
"When such payments for away from home and traveling expenses are made (i.e., when employes are
required to work away from their assigned headquarters), the System Equipment Operator will be
required to report to the assigned location of work
at the required starting time.
*x*
Form 1 Award No. 27916
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B.1 System Equipment Operators required to travel
more than fifty (50) miles, one way, from home to
work location, will receive actual reasonable ex
penses not to exceed $15.00 each day for lodging
and $10.00 each day for meals.
Bona fide receipts will be required with expense
accounts for payment.
2 Traveling allowance for use of personal vehicle
will be paid at the actual allowance for mileage
and System Equipment Operators will be allowed time
at the hourly rate of pay of the assigned position
he is traveling to or from, at the rate of forty
(40) miles per hour from home to the work location,
on the first and last days of the assignment or
work week for traveling, either within or outside
the hours of the normal tour of duty."
Claimant has submitted expenses totalling $1,150.70 for January and
February 1985 under the 1980 Agreement. Carrier has declined to pay the
expenses.
According to the Carrier, personal expenses are payable only when the
employee is instructed to report directly to a work site away from headquarters. To interpret
the employee's personal expenses simply for reporting to work. The Carrier
asserts that the Claimant reported to his headquarters each day of the claim
period and, therefore, is not entitled to personal expenses.
According to the Organization, for the first two years following the
1980 Agreement, System Equipment Operators were reimbursed for expenses
whenever assigned to work away from the headquarters, regardless if they first
reported to headquarters. In 1982, when the Carrier's Chief Engineer retired
and a new man assumed his position, the Carrier unilaterally changed the interpretation of the 1980
The Organization argues that the Claimant's expenses are eligible for
reimbursement since he was assigned work away from his headquarters. In any
case, the Organization states, in this instance the Claimant did not report to
headquarters on a daily basis, so he would be entitled to reimbursement even
under the Carrier's more restrictive interpretation.
We will defer for the moment the contradictory assertions of the
parties concerning whether the Claimant reported directly to his headquarters
during the claim period. We will address first the issue of what the 1980
Agreement requires.
Form 1 Award No. 27916
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The Organization maintains that a consistent past practice developed
during the first two years of the Agreement whereby System Equipment Operators
"were considered as having reported directly to their machines, rather than
their 'headquarters,' on a daily basis and were reimbursed for expenses accordingly." The Carrier ma
of this practice, the Organization asserts, so it must be accepted as the parties' understanding of
In its rebuttal Submission, the Carrier disputes the alleged past
practice, insisting that employees consistently have been reimbursed only when
instructed at the end of the day to report back directly to the same nonheadquarter location the fol
if the Organization's alleged practice existed, it cannot overcome clear and
unambiguous language to the contrary.
To the extent that the Agreement's language is clear and unambiguous,
it does not support the Carrier's interpretation. The unnumbered paragraph in
the Agreement provides expense payments when employees are assigned to work at
non-headquarters locations and required to report there at the "required starting time." Paragra
vehicle "either within or outside the hours of the normal tour of duty."
Therefore, the "required starting time" referred to in the unnumbered paragraph may be a time "withi
not unambiguously preclude expense payments when an employee starts his tour
of duty by reporting to headquarters.
Since the Agreement is neither clear nor unambiguous, we must consider past practice to ascertai
asserted the existence of a two-year practice at an early step in the handling
on the property. The Carrier made no attempt to refute this assertion until
its rebuttal Submission. Neither party has offered any documentary evidence
to support its position. Therefore, we shall accept the Organization's position, since it was uncont
Consequently, the established practice between 1980 and 1982 indicates that the intent of the Ag
outlined when a System Equipment Operator is assigned to a work location away
from his headquarters, and we shall so order. There is no need for us to
attempt to resolve the question of whether or not the Claimant reported to
headquarters daily.
Note should be made of an additional argument raised by the Carrier.
The Claimant had indicated on his expense reports that he had stayed in
Borealis and Esquire, New York during this two-month period. The Carrier
insists that Claimant was never assigned to work at these locations. However,
Claimant's expense reports clearly indicate only that he took lodging at
Borealis and Esquire; his work sites were at various other locations listed on
the second page of the expense report. Therefore, the Carrier's objection on
this basis is without foundation.
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A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
4a/n"cyJ.
PIV-
Executive Secretary
Dated at Chicago, Illinois, this 18th day of May 1989.