The Third Division consisted of the regular members and in addition Referee Dana E. Eischen when award was rendered.
The Third Division of the Adjustment Board, upon the whole record and all the evidence, rinds 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.
During the period of July 1, through December 31,1995, the 27 Claimants listed in this dispute were assigned to various positions for which the assignment bulletins specified, in pertinent part: "Headquartered mobile. No Outfit. Rule 38 to apply." The contract language at issue in this case reads as follows:
disputed that those payments were approved by the appropriate Roadmaster(s), in accordancewith instructions issued on July28,1988, by then Manager, Region Accounting, T. P. Sullivan, which read, in pertinent part:
In mid-February 1996, however, apparently because of recommendations from internal financial auditors, the Carrier notified the Claimants that the "30 cent linen allowance not payable." The instant claim arose when, in the paycheck for the first half of February 1996, payable February 28,1996, the Carrier "recovered" the 30 cents per diem linen allowance previously paid to the Claimants. After the deductions were made from pay checks issued February 28, 1996, the Organization tiled this claim on behalf of the named Claimants, under date of April 12, 1996, alleging violation of Rules 21, 22 and 38 of the Agreement. The Organization premised its claims on the plain language of the first sentence of Rule 38.A(2), supra , and "past practice" thereunder, as memorialized in the Sullivan Memorandum of July 28,1988. The Carrier denied the claims and disavowed the Sullivan Memorandum; asserting that prior such linen allowance payments had been made "in error" and that such payments were not required under a "common sense" reading of the plain language of Rule 38 of the Agreement.
Careful consideration of the record evidence and the respective positions of the Parties convinces us that the Organization must prevail in this case. When conflicting interpretations of a contract are plausibly demonstrated, as they are under the language of Rule 38, the language in dispute must be considered to be ambiguous. If the language of a Collective Bargaining Agreement is ambiguous, parol evidence of mutual intent may appropriately be utilized to resolve a dispute as to the meaning of the unclear contract language, especially including mutually recognized and accepted "past practice." In United Steelworkers of America v. Warrior & Gulf Navigation Co., 363 U.S. 574, 578-82, 80 S.Ct. 1347, 46 LRRM 24161960), the Supreme Court of the United States recognized the efficacy of clear, consistent and mutually recognized past practice for resolving disputes over the mutual intent underlying ambiguous contract language:
So far as the record shows, since at least July 1988 the Carrier paid the $.30 per diem linen "for each day that per diem meal allowance is paid," in strict accordance with the literal language of the first sentence of Rule38.A(2). [The second sentence of Rule38.A(2) has no application in the facts of this case]. Notwithstanding arguable latent ambiguity or inconsistencies in other parts of Rule 38 regarding such payments, prior to February 1996 that mutually recognized past practice, as memorialized in the Carrier- authored Sullivan Memorandum of July 28, 1988, supra, was accepted by both Parties as the proper interpretation and application of Rule 38 to employees in the Claimants' situation. Latter day revisionist reading of the controlling contract language by internal financial auditors does not justify the Carrier's unilateral abrogation of the mutually recognized and accepted interpretation and application of that contract language in this case. Because the Organization persuasively demonstrated that the Carrier violated Rule 38 and the established past practice thereunder in the factual record in this case, the claims are sustained.
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 ANard 35981 (Docket NIW-34943)
(Referee Eischen)
\'1'e understand the majority's conclusion of coupling the linen allowance with the payment of the per diem meal allowance. If one looked at Rule 38A (1) and (2) as separate entities, then one goes with the other.
However, Rule 38(A) is not separate provisions but one. The condition precedent is clear, "If lodging is furnished by the Company ...." the enumerated facilities and services are to be provided. If lodging is not provided, then the employees are compensated in accordance with paragraph (C) of the rule. That is what was done here. Paragraph (A) and (C) of Rule 38 are mutually exclusive. It was never the intent of the parties that employees would be entitled to both provisions at the same time.
The quoting of Rule 38 (A) at pages 2-3 of the Award, including the indentation of items (1) and (2) under paragraph (A) substantiates that paragraph (A) covers both subsections. Further the $.30 cent allowance was for the employees "furnishing and laundering " their bed linen. There is no evidence in this record that any of the Claimants furnished or laundered any bed linen for themselves. That was provided by the motel. Obviously, since the Claimants N ere not required to provide or launder any bed linen the raison d'etre for the linen allowance ceased to exist. And regardless of who, other than the employees, provided the bed linen, the expense allowance would not apply per the second sentence of Rule 38 (A)(2).
The reliance of the majority on a 1988 memorandum, quoted at pages 4-5, and on "past practice" ignores the foregoing. That the allowance had been paid in the past, erroneously or not, does not warrant the continued payment of the allowance when the purpose for it ceases. Possibly, the Carrier could have recouped the money differently but the fact remains that none of the Claimants was required to secure his own bed linen and certainly none of them laundered it.