Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28620
THIRD DIVISION Docket No. MW-26887
90-3-85-3-719
The Third Division consisted of the regular members and in
addition Referee Elliott H. Goldstein when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


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 the members of System Track Gangs 806, 807, 1827 and 832 and Roadway Equipment Operators D. D. Dickinson, G. G. Pischel and C. D. Stueben for travel time in connection with moves made on certain dates between May 16, 1984 and October 15, 1984 (System Files M-74/013-210-36; M-77/013-210-36; M-81/013-210-36 and M-82/013-210-36).

(2) The employes assigned to System Track Gangs 806 and 807 on September 4, 7, 19, 20 and October 10, 1984, shall be compensated for a total of fifty-four (54) hours each at their respective straight time rates; Claimants M. J. Germer, R. L. O'Neil, J. C. Gruber, R. D. Flanagan, R. L. Britt, M. S. Anglin, R. G. Schuyler, D. G. Swanek, J. C. Rivera, G. L. Keaty and R. S. Mostek (System Track Gang 1827) shall be compensated for a total of five and one-half (5 1/2) hour each at their respective straight time rates; Claimants B. A. Hirschburnner, B. D. Gamble, J. L. Woita, J. Gonzales, L. Shields, G. T. Thomas, W. R. Nelson, Jr., R. L. Nielson, P. Smith, G. A. Hinker, E. Thomas, S. R. Silos, D. L. Wengler, D. J. Orender, D. S. Middleton, V. L. Warren, S. G. Gunderson, R. L. Paul, S. C. Haley, M. A. Silos, J. Madrano, C. Chie, H. Thompson, J. Maize, M. E. Cynova, W. J. Twyman, T. L. Bogenrief and G. Romig (System Track Gang 832) shall be compensated for a total of twenty-two (22) hours each at their respective straight time rates and Claimants D. D. Dickinson, G. G. Pischel-and C. D. Stueben shall be compensated for a total of f straight time rates because of the violations referred to in Part (1) hereof."

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.


Form 1 Award No. 28620
Page 2 Docket No. MW-26887
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On the dates this dispute arose, the Claimants were regularly assigned or working with System Ga headquartered in outfits.

The members of System Gangs X806 and X807, Claimants D. D. Dickinson, G. G. Pischel and C. D. Stueben, were required by the Carrier to expend travel time when their outfit was moved from one work point to another outside their regularly assigned hours as follows:

_Date Location Miles
from to
5-16-84 Laramie, Wy. Medicine Bow. Wy. 57
5-22-84 Medicine Bow Walcott, Wy. 39
5-25-84 Walcott, Wy. Rawlins, Wy. 23
6-1-84 Rawlins Riner, Wy. 18
6-8-84 Riner Wamsutter, Wy. 24
6-12-84 Wamsutter Rock Springs, Wy. 78
6-14-84 Rock Springs Granger, Wy. 45
6-20-84 Granger Bridger, Wy. 28
6-28-84 Bridger Altamont, Wy. 19
7-3-84 Altamont Evanston, Wy. 13
7-16-84 Evanston Echo, Ut. 35
7-24-84 Echo, Ut. Hammett, Id. 343
8-3-84 Hammett, Id. Rock Island, Or. 150
8-14-84 Rock Island Portland, Or. 396
9-4-84 Portland Briggs 103
9-7-84 Briggs, Or. Nephi, Ut. 867
9-19-84 Nephi Paxley, Ut. 31
9-20-84 Paxley, Ut. Lynndyl, Ut. 15
10-5-84 Lynndyl, Ut. Delphos, Ks. 1,100

Claimants M. J. Germer, R. L. O'Neil, J. C. Gruber, R. D. Flanagan, R. L. Britt, M. S. Anglin, R. G. Schuyler, D. G. Swanek, J. C. Rivera, G. L. Keaty and R. S. Mostek were required to expend travel time when their outfit-was moved from Frankfor assigned hours on October 15, 1984.

Claimants B. A. Hirschburnner _ B. D. Gamble, J. L. Woita, J. Gonzales, L. Shields, C. T. Thomas, W. R. Nelson, Jr., R. R. Nielson, P. Smith, G. A. Hinker, E. Thomas, S. R. Silos, D. L. Wengler, D. J. Orender, D. S. Middleton, V. L. Warren, S. G. Gunderson, R. L. Paul, S. C. Haley, M. A. Silos, J. Madrano, C. Chie, H. Thompsonr J. Maize, M. E. Cynova, W. J. Twyman, T. L. Bogenrief and C. Romig were required to expend travel time when their outfit was moved from Solomon, Kansas, to Plainville, Kansas, outside of their regularly assigned hours on September 27, 1984.
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The Organization contends that Claimants were not compensated for
travel time as required by Rule 36, Section 2, which reads:











The Organization argues that Rule 36, Section 2, specifically stipulates that employees assigned with outfits as headquarters, except as provided in Sections 1, 3, 4 and 5, shall be paid for time spent traveling when moves are made from one work point to another outside of regularly assigned hours at their pro rata rate computed on the basis of forty (40) miles per hour for normal traveled road miles between the work location from which the move commenced and the new work loqation. The exceptions thereto have no application here, the Organization maintains. Moreover, it is a well established principle of contract construction that where one or more exceptions to a provision are implied, and that principle applies here, according to the Organization.

Carrier contends that Rule 36, Section 3 of the current Agreement pertains to Division Extra Gangs and that it has historically applied this Rule when changing division gang work locations. That language reads as follows:
Form 1 Award No. 28620
Page 4 Docket No. MW-26887
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"Section 3 - Extra Gang Assignment - Traveling In or
With Outfit Cars:
(a) Employes assigned to outfit cars which are
considered their headquarters will be compensated as
follows when their outfit cars are moved on or off
their assigned seniority district whether they ride
the outfit cars or use other means of transportation
to the location where outfit cars are being moved.
(b) When a move occurs on a regular work day,
employes involved will be allowed straight time for
any portion of the move which occurs during their
regular assigned hours.
(c) When a move occurs on a rest day, employes
involved who performed compensated service on the
work days immediately preceding and following such
rest day, will be allowed straight time on the basis
of one hour for each 40 miles or fraction thereof for
any portion of the move which occurs during hours
established for work periods on other days. The
maximum time allowance under this Section (c) shall
be 8 hours per day.
(d) As pertains to employes using others means
of transportation to the location where outfit cars
are being moved, in 'case outfits are diverted, or
work performed enroute, no allowance will be made for
any time lost.
(e) In computing time under this rule, fraction
of less than one-half hour shall be dropped and
one-half hour or more shall be counted as an hour."

Carrier emphasizes that for the past 17 years, since the inception of the Rule, all division and system extra gang employees have been compensated under the provisions of Section 3 of Rule 36 for any and all travel service. In the Carrier's view, the Organization is attempting here to secure through the claim process what it has been unsuccessful in obtaining at the bargaining table.

Carrier further alleges that the claim is improper and vague and, therefore, defective. We have reviewed the claim as it was presented and processed on the property and do not find Carrier's arguments in that regard to be well-founded.
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What is clear, however, is that there are two recent precedent Awards which have considered this same issue and which have reached divergent results. In Public Law Board system tie gang employees seeking compensation for travel time to a new work site and for time spent waiting for their outfit cars to arrive. The Board concluded therein that the language of Section 3, Rule 36 was ambiguous because it was unclear whether the reference to "seniority districts" meant seniority groups in a general sense or seniority districts. Given its finding that there was ambiguity in the language, the Board looked to past practice and found that Carrier had consistently denied similar claims under Section 3 in the past. On that basis, the claim was denied. Carrier argues that the same reasoning applies here and that this prior Award should be considered _res udicata.

A contrary conclusion was reached by Third Division Award 26818. Therein, the Board concluded:







We have reviewed both Awards as well as the arguments of both parties and find the Carrier's position persuasive. We note that Claimants were assigned to system extra gangs, and although the Organization argues that the language of Section 3 was intended to apply only to division extra gangs, the fact remains that this section of the Ag;eement in its title refers to "extra gangs" and makes no distinction between ':division" and "system" extra gangs. Moreover, we concur with PLB 4219, Case No. 4 that there was sufficiently convincing evidence of past practice presented by the Carrier to show that Section 3 has been applied with equal force both to division and system extra gangs. On that basis, we must rule to deny the claims.
Form 1 Award No. 28620
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        Claims denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest:
      Nancy J. D 6v -Executive Secretary


Dated at Chicago, Illinois, this 17th day of December 1990.