Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27998
THIRD DIVISION Docket No. M4- 26476
89-3-85-3-209
The Third Division consisted of the regular members and in
addition Referee Dana 8. Eischen when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE: (
(Union Pacific Railroad Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused to
reimburse Mr. T. J. Watson for the expenses he incurred while traveling at the
direction of the Carrier on a round trip between Oroville, California and
Grand Island, Nebraska on February 4, 5, 6, 7, 8, 9, 10 and 11, 1984 (System
File 5-18-13-14-541013-210-48).
(2) As a consequence of the aforesaid violation, Mr. T. J. Watson
shall be allowed nine hundred eighty dollars and three cents ($980.03) reimbursement for the mileage, meal and lodging expense he incurred from February
4 through 11, 1984."
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.
This Claim for reimbursement of expenses arises out of disciplinary
proceedings brought against Claimant by Carrier for alleged theft of Carrier
property. The facts behind these charges and logistics of two (2) separate
Hearings are set forth in detail in recent Third Division Award 26155.
The propriety of Claimant's discharge was upheld in Third Division
Award 26155 and also in PLB 3241, Award No. 2. The Claim before us is for
reimbursement of expenses incurred by Claimant in attending the Hearing at
Grand Island, Nebraska, which necessitated round trip travel from his residence at Oroville, California.
Form 1
Page 2
Award No
Docket No. MW--26476
89-3-85-3-209
In a long line of Awards, this Board has consistently denied similar
Claims in the absence of clear contract language or proven past practice
requiring such payments. Typical of these decisions is Third Division Award
21320, which stated;
..The issue is whether an employs required to attend
a discipline investigation in which he is a party charged
and subsequently found guilty is contractually entitled
to be paid far days) of attendance at the hearing.
In the absence of a specific provision in an agree-
ment that a charged party shall be paid for attendance
at a discipline investigation hearing it is the practice
_in the railroad industry that the
emploXe is
ns~t con-
tractually entitled to sera for
time
_in attendence at the
hearing. The confronting Agreement contains no such'
specific provision; and further, the record before the
Board contains no evidence of probative value that on the
property here involved payment to a charged party has been
historically and customarily paid.
In the industry, provisions of agreement such as Rule
1$(c) have generaly been held to apply to non-charged emplayes that are required to attend a discipline investigation hearing to testify as witnesses." (Underscoring
added)
See also Second Division Award 8225, Third Division Award 22506, Fourth
Division Award 1971.
There is no express contractual language or demonstrated past pracsuch payments shown on this record. The thrust of the present claim
to be an extra-contractual promissory estoppel theory, based upon al-
rice of
appears
leged representations made to Claimant by his farmer Supervisor at Oroville,
California. Claimant asserts that this Carrier Representative assured him
that Carrier would reimburse ham for expenses of attending the Grand Island,
Nebraska Hearing. A party seeking to recover in promissory estoppel must show
that he has "clean hands" and that he was misled into changing his position,
to his detriment and damage, by misrepresentations of another or an authorized
representation of another, upon which he reasonably relied. In this particular ease, Claimant and the Organization failed to carry that burden of
proof. Bare assertions by Claimant that he sought and obtained permission to
drive his vehicle and a promise of reimbursement for expenses were not buttressed by supporting evidence an the property and are denied by Carrier. An undated handwritten note from Claimant setting forth the details of this alleged
conversation was not brought forward on the property but was presented de nova
in the Submission to this Board. Carrier properly objected to this document
and it cannot be considered as evidence in this proceedings. We must deny
this Claim far failure of proof.
Form 1 Award No. 27998
Page 3 Docket No. MW-26476
89-3-85-3-209
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest _
gNancy J, ear`--Executive Secretary
Dated at Chicago, Illinois, this 31st day of July 1989.