The Third Division consisted of the regular members and in addition Referee Edwin H. Benn when award was rendered.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant is a Machine Operator in the Track Subdepartment. During the period in dispute, Claimant worked on the Carrier's Northern Division with a Monday through Friday work week. During that period, Claimant was assigned to work with a mobile gang working over 400 miles from his home in Tripoli, Wisconsin. On the dates set forth in the claim, which were Claimant's rest days, the Carrier did not reimburse Claimant for lodging expenses.
Because this is a contract dispute, the Organization must carry the burden to demonstrate a violation of the relevant language. It has not done so. As far as lodging reimbursement is concerned, Rule 35 clearly only focuses upon the "work week". In this claim, Claimant seeks reimbursement for his rest days when those expenses were voluntarily incurred by Claimant. Notwithstanding the equities of the situation which could require claimant to travel great distances on his rest days to return home to avoid having to pay for rest day lodging, this Board does not have the authority to change the clear language of the rule. Form 1 Award No. 31359
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.
LABOR MEMBER'S DISSENT
TO
AWARD 31359, DOCKET NO. MW-30799
(Referee Benn)
The Neutral Member has clearly made a mistake in this case. Whether that mistake was solely because of clever and misleading advocacy by the Carrier or whether the organization must bear some responsibility for failing to clearly shine the light of reason on this case is no longer material. The critical point is that a mistake has been made and must be corrected because important national rules are at stake. Hence, this dissent is filed not to blame or castigate, but to shine the light of reason to ensure that the mistake will not be perpetuated.
Award 31359 is in direct conflict with the plain language of one national rule and the written interpretation of another national rule. These two national rules - the Forty Hour Week Rule and the Award of Arbitration Board No. 298 (Award 298) - have been in existence for 47 years and 29 years, respectively. In all of this time, no other carrier has applied these rules as Soo applied them in this case. Hence, no other neutral has accepted such application as being correct as the Majority has here. Since this award is so clearly in conflict with the plain language of a fundamental national rule, i.e., the Forty Hour Week Rule and with the written interpretation of Award 298, it rises to the standard of being "palpably erroneous°. As such, it can have no precedential value. Labor Member's Dissent
The Majority's error in this case is founded upon its interpretation of the term "work week" in Rule 35. Rule 35 of the
Soo Agreement is an adoption of the national rule known as Award 298 which was arrived at through a national arbitration award dated September 30, 1967. However, the term "work week" had been defined in the railroad industry for all non-operating crafts, including BMWE, long before Award 298. The March 19, 1949 National Forty Hour Week Rule, which has been adopted as Rule 26 in the Soo Agreement, defined a "work week" as follows:
Contrary to the findings of the Majority in this case, a work week is a consecutive seven day period consisting of five workdays and two rest days. If any ambiguity could be imputed to the term "work week" in Rule 35, that ambiguity is definitively resolved by reading Rule 35 in the context of Rule 26, which is the seminal national rule on work weeks. Moreover, it is clear that Arbitration Board No. 298 was not unmindful of the national Forty Hour week Rule as is evidenced by the fact that the Forty Hour Week Rule is referenced in the Award of Board 298.
Further error in Award 31359 is evidenced by a review of Rule 35 (A) (2) which the majority quotes and then promptly misinterprets. Rule 35 (A) (2) provides lodging reimbursement for "the actual reasonable expense thereof not in excess of $13.75 per day". Rule 35(A)(2) clearly contemplates reimbursement for actual reasonable expenses for each "day" such expenses are incurred rather than each work day. If the drafters had meant work day rather than day that is what they would have written. However, they clearly chose not to write work day and the majority is prohibited from so changing the Agreement through the guise of interpretation. Labor Member's Dissent
Finally, it should be noted that the parties themselves have never interpreted Award 298, from which Rule 35 was adopted, in the manner suggested by the Majority. In the case decided by Arbitration Board No. 298, the National Carriers Conference Committee's (NCCC) lead counsel was Mr. C. I. Hopkins, Jr., who later became the chairman of the NCCC. In recent litigation between BMWE and most of the nation's rail carriers in the United States District Court For The District of Columbia (Alton & Southern Railway, et al. v. BMWE, Civil Action 94-2365-TFH), Mr. Hopkins submitted an affidavit in which he stated:
Mr. Hopkins' affidavit speaks for itself and it is clearly and inexorably in conflict with the Majority's findings in Award 31359. Labor Member's Dissent
it is beyond question that the capable Neutral member was misled in this case. If the organization must share some of the blame for not rising above the Carrier's clever advocacy and clearly debunking the Carrier's case, then so be it. However, whatever the cause, it is clear that the outcome is palpably erroneous and therefore has no precedential value. Indeed, the Majority recognized that the results of its findings were inequitable and it would be a travesty to visit those inequities on the employes when the contract language so plainly does not contemplate such inequities.