The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee 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.
At the time of the incidents in question, Claimant B. C. Spooner was assigned as a Mobile Machine Operator on Gang 1952. Claimants T. Kennedy and D. E. Ness were also assigned by bulletin as Mobile Machine Operators. The Claimants were assigned and working their respective positions on the dates immediately preceding and following the dates involved in this dispute.
On Saturday, March 22, 1997, the Carrier called and assigned Mobile Machine Operator Spooner to the weekend overtime duty of repairing track following a derailment at Laurel Yard in Laurel, Montana.
On Saturday, January 11, Saturday, January 25 and Sunday, January 26, 1997, the Carrier called and assigned Mobile Machine Operator Kennedy to the weekend overtime duty of snow removal at Laurel Yard.
On Sunday, January 19,1997 and Sunday, January 26, 1997, the Carrier called and assigned Mobile Machine Operator Ness to the weekend overtime duty of snow removal at Laurel Yard.
Rules A-9 and A-11 are relevant in this matter. In relevant part, these Rules indicate: Form 1 Award No. 35847
It is undisputed that the mobile crew stipend was increased to $41.00 per day in the parties' October 3, 1994 Letter of Agreement.
It appears to be undisputed that in all three cases, the Claimants were normally assigned to mobile gangs and were observing a rest day when they were called to perform overtime service at Laurel Yard. In each of the three cases, the Claimants were paid at their proper overtime rate, but did not receive the daily stipend. That is the dispute in this matter. Claimant Spooner worked one day, Claimant Kennedy worked three days and Claimant Ness worked two days. All of the Claimants lived in the Laurel area and thus did not have to travel away from home to get to Laurel Yard.
The Organization contends that the Claimants are Mobile Machine Operators who were not provided lodging. Thus, the Organization claims that they are entitled to the daily stipend for Mobile Machine Operators which is $41.00 per day. Regardless of the fact that they were working at Laurel Yard, and lived nearby, the Organization maintains that the Claimants were working and were paid as Mobile Machine Operators. As such, they are entitled to the stipend of $41.00 per day for each day worked. Form 1 Award No. 35847
The Carrier takes the position that the Organization has not met its burden of proof in this matter. The Carrier takes the position that simply because an employee is regularly assigned to a mobile gang eligible to receive a daily stipend, this does not mean that all service rendered by the employee must be accompanied by the payment of a daily stipend. In this case, the Claimants were called on their rest days for overtime service on the Laurel section crew. They accepted the call and they therefore accepted the conditions of that assignment. They replaced employees on a Section Crew which does not receive the stipend. Thus, the Claimants, accepting the work of a Section Crew are not entitled to a stipend. Further, the Carrier argues that the mobile crews to which the Claimants were assigned were not required to work and therefore, there was no opportunity for these crews to receive the stipend.
After a careful review of the evidence, the Board finds that the Organization has sustained its burden of proof in this matter. We find that the Carrier's interpretation would place a limitation on the payment of the per diem where none exists. When a Board is called upon to interpret provisions that have a plain and certain meaning, we need not resort to implication, but must enforce the provisions as written. Here, the Claimants were all assigned as Mobile Machine Operators, positions that entitled them to a per diem payment of $41.00 per day worked. On all days worked by the Claimants, they were paid as Mobile Machine Operators and compensated at the appropriate daily overtime rate. Their overtime work as a member of a Section Crew did not convert their employment to an employee of a Section Crew. Thus, they are entitled to the relevant stipend of $41.00 per day worked.
We also note that the Claimants all lived in the Laurel area and did not have to travel beyond their home to do this work. This does not affect the outcome. Part of Rule A-11 provides:
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
CARRIER MEMBERS' DISSENT
TO
THIRD DIVISION AWARD 35847; Docket MW-34469
(Referee Steven M. Bierig)
In our opinion, the instant claim before the Board involved the same controlling facts and the same contractual provisions as were submitted for adjudication in denial Third Division Award 35576, which is incorporated herein by reference. Clearly, any differences between the two are so insignificant as to be meaningless as to the facts and issues involved.
While the Board has recognized on more than one occasion that we, as a Board, would not be hesitant to reach a different conclusion were we to be absolutely convinced that a prior Award was palpably wrong, the Board has also recognized that precedent cannot be lightly regarded, because to do so would endanger the prompt and orderly settlement of disputes on the property as contemplated by the Railway Labor Act. In this regard, the Board held as follows in Second Division Award 3991 rendered on May 31, 1962:
Subsequent to the Referee having heard the parties' arguments in the instant case on April 27, 2001, and before he rendered his decision, Docket MW-35104 was argued CARRIER MEMBERS' DISSENT THIRD DIVISION AWARD 35847 Page 2
before Referee Ann Kenis on May 10, 2001 and she promptly rendered her denial decision, which was adopted as Third Division Award 35576 on July 24, 2001.
We are confident that had Third Division Award 35576 been before him at the time the case was argued, no doubt he would have found nothing in the instant record that would justify a different ruling and he would have followed the then existing precedent. This is so, because the Board has consistently held that such is the appropriate course of action, even ifthe subsequent Referee might have ruled differently had it been his decision to make in the first instance, so as to promote harmonious labor/management relations and not indefinitely invite further litigation or forum shopping.
Given the foregoing scenario, at worst, the "score" is "one to one." However, for the reasons set forth above, in the event the Organization files yet another identical dispute before this Board, we would strongly urge the third neutral to follow longestablished Board