Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29388
THIRD DIVISION Docket No. MW-29180
92-3-90-3-36
The Third Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(CSX Transportation, Inc. former Louisville &
( Nashville Railroad Company [former Monon Railroad])
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed to permit the
employes assigned to B&B Gang 6K76 to eat their noon meal at their camp cars
each work day beginning October 3, 1988 [System File 12(89-186) LNR].
(2) As a consequence of the aforesaid violation, the employes assigned to B&B Gang 6K76 shal
permitted to return to their camp cars for their noon meal beginning October
3, 1988 and continuing."
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.
The Organization maintains that one of Carrier's Assistant B&B Supervisors agreed to an arra
their camp cars for their midday meal would be paid $5.00 for each occurrence.
This arrangement, the Organization contends, commenced.in August 1982, and was
discontinued in late 1988. This arrangement, the Organization insists, cannot
be unilaterally terminated by Carrier. It cites several Awards which have
concluded that a practice once established remains such until it is specifically abrogated by the pa
Carrier characterizes these payments as gratuities and acknowledges
that such payments were made, however, it insists that they were done so
improperly. Carrier stresses that there exist no ambiguities in the Rules
Form 1 Award No. 29388
Page 2 Docket No. MW-29180
92-3-90-3-36
governing this dispute. The Rules clearly provide certain entitlements to
employees who work out of camp cars and are regularly required to live away
from home. These Rules do not entitle them to payment of an additional $5.00
for each occasion that they are not returned to the camp car site for their
noon meal. Carrier insists that the gratuities that were paid resulted from
an arrangement made by persons unauthorized to effectuate changes in the
working Agreement and, as such, were not binding and could be discontinued at
will by either party. In support of its arguments it cites a number of Awards
which hold that gratuitous practices providing payments beyond those required
by Agreement terms do not become an established custom which could not be discontinued at any time.<
The arrangement of paying $5.00 to employees who were not returned to
their camp cars for their noon meal was only in place for approximately six
years. It only occurred on one Division of the Carrier. The frequency of
occurrences has not been established in this record. Thus, it is questionable
if the payments could be characterized as long-standing. However, even if
such payments were to be characterized as long-standing, the Rules covering
payments for meal allowances, etc., when working out of camp cars, are clear
and umambiguous. Accordingly, they are not subject to interpretation on the
basis of the parties' practices. (See Third Division Award 28034).
Additionally, the arrangement for payment was entered into by a representative of-the Carrier wh
existing Agreements. In such situations this Board has held that carriers are
not bound to continue unauthorized and erroneous past payments made improperly
by subordinate officials. (See Second Division Award 9049).
The Claim is without merit.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
ancy J. -Executive Secretary
Dated at Chicago, Illinois, this 17th day of September 1992.