Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36074
Docket No. MW-35771
02-3-99-3-717
The Third Division consisted of the regular members and in addition Referee
Ann S. Kenis when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company (former Missouri
( Kansas-Texas Railroad Company)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed and refused
to pay System Gang employee C. L. Brown travel allowance for the
round trips made in May, 1997 as provided in Article XIV, Section
1 of the September 26, 1996 Mediation Agreement (Carrier's File
1085368 MKT).
(2) The Agreement was violated when the Carrier failed and refused
to pay System Gang employee C. L. Brown travel allowance for the
round trips made in June, 1997 as provided in Article XIV, Section
1 of the September 26, 1996 Mediation Agreement (Carrier's File
1085355).
(3) The Agreement was violated when the Carrier failed and refused
to pay System Gang employee C. L. Brown travel allowance for the
round trips made in July, 1997 as provided in Article XIV, Section
1 of the September 26, 1996 Mediation Agreement (Carrier's File
1085364).
(4) The Agreement was violated when the Carrier failed and refused
to pay System Gang employee C. L. Brown travel allowance for the
round trips made in August, 1997 as provided in Article XIV,
Section 1 of the September 26, 1996 Mediation Agreement
(Carrier's File 1095933).
Form 1 Award No. 36074
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02-3-99-3-717
(5) The Agreement was violated when the Carrier failed and refused
to pay System Gang employee C. L. Brown travel allowance for the
round trips made in September, 1997 as provided in Article XIV,
Section 1 of the September 26, 1996 Mediation Agreement
(Carrier's File 1101143).
(6) The Agreement was violated when the Carrier failed and refused
to pay System Gang employee C. L. Brown travel allowance for the
round trips made in October, 1997 as provided in Article XIV,
Section 1 of the September 26, 1996 Mediation Agreement
(Carrier's File 1111314).
(7) The Agreement was violated when the Carrier failed and refused
to pay System Gang employee C. L. Brown travel allowance for the
round tripsmade in November, 1997 as provided in Article XIV,
Section 1 of the September 26, 1996 Mediation Agreement
(Carrier's File 1116106).
(8) The Agreement was violated when the Carrier failed and refused
to pay System Gang employee C. L. Brown travel allowance for the
round trips made in December, 1997 as provided in Article XIV,
Section 1 of the September 26, 1996 Mediation Agreement
(Carrier's File 1121787).
(9) As a consequence of the violation referred to in Part (1) above, Mr.
C. L. Brown shall be allowed a travel allowance of eight hundred
twenty-five dollars ($825.00).
(10) As a consequence of the violation referred to in Part (2) above, Mr.
C. L. Brown shall be allowed a travel allowance of six hundred
dollars (S600.00).
(11) As a consequence of the violation referred to in Part (3) above, Mr.
C. L. Brown shall be allowed a travel allowance of six hundred
seventy-five dollars ($675.00).
Form 1 Award No. 36074
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02-3-99-3-717
(12) As a consequence of the violation referred to in Part (4) above, Mr.
C. L. Brown shall be allowed a travel allowance of seven hundred
twenty-five dollars ($725.00).
(13) As a consequence of the violation referred to in Part (5) above, Mr.
C. L. Brown shall be allowed a travel allowance of eight hundred
fifty dollars ($850.00).
(14) As a consequence of the violation referred to in Part (6) above, Mr.
C. L. Brown shall be allowed a travel allowance of eight hundred
fifty dollars ($850.00).
(15) As a consequence of the violation referred to in Part (7) above, Mr.
C. L. Brown shall be allowed a travel allowance of eight hundred
fifty dollars ($850.00).
(16) As a consequence of the violation referred to in Part (8) above, Mr.
C. L. Brown shall be allowed a travel allowance of eight hundred
fifty dollars ($850.00)."
FINDINGS:
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.
Parties to said dispute were given due notice of hearing thereon.
This case consolidates eight successive claims filed by the Organization on behalf
of the Claimant for unpaid travel allowances in connection with expenses incurred by
the Claimant when he made weekend trips home during the months of May though
December 1997. In support of its claims, the Organization relies upon Article XIV
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Travel Allowance, newly adopted in the 1996 National Mediation Agreement. That
provision states in pertinent part:
"Section 1
(a) At the beginning
of
the work season employees are required to
travel from their homes to the initial reporting location, and at the
end of the season they will return home. This location could be
hundreds
of
miles from their residences. During the work season
the carriers' service may place them hundreds
of
miles away from
home at the end
of
each work week. Accordingly, the Carriers will
pay each employee a minimum travel allowance as follows for all
miles actually traveled by the most direct highway route for each
round trip ...."
The Carrier initially denied the claims on the merits for two reasons. First, the
Carrier contended that the Claimant was not eligible for travel allowance because
Article XIV applied only to employees on regional or system production gangs and the
Claimant was not assigned to either one
of
those kinds
of
gangs. Second, the Carrier
alleged that the Claimant was not eligible for travel allowance because he had moved
his residence off his home territory. According to correspondence exchanged on the
property, the Claimant moved his residence from Greenville, Texas, to Jeffersonville,
Indiana, in April 1997. The Carrier maintained that it had no rail operations within
the vicinity
of
the Claimant's new residence and that the closest rail point within the
Claimant's seniority territory was hundreds
of
miles away in Kansas. The Carrier
argued that it was not contractually obligated to allow travel allowances for employees
who move so far away from their seniority territory. A procedural objection based on
untimeliness was also raised by the Carrier for the claim submitted by the Organization
for travel expenses incurred in May 1997.
The first reason for declining the claims was resolved by NMB Arbitration Board
No. 1114. National Carriers' Conference Committee and The Brotherhood
of
Maintenance
of
Way EmplQyes (Kasher,1999), and the second reason for declining the
claims was resolved by Public Law Board No. 6302, Award 20 (Malin, 2000). In the
latter case, as here, the claimant moved his residence outside his seniority territory.
Concluding that Article XIV contained no express limitations requiring an employee
to live within or near his seniority territory to qualify for the travel allowance, the
Board stated:
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02-3-99-3-717
"Nevertheless, Carrier presents a parade of horribles it maintains will
result from failing to restrict travel allowances to employees who do not
move off their seniority territories. Carrier expresses concern that
employees will claim to have moved to Alaska or Hawaii and then, under
Article XIV, Section 2, be entitled to airfare `home' every third week.
Carrier's concerns are already met in the Agreement. The Agreement
provides for travel allowance for employees who travel home for their rest
days. To be entitled to a travel allowance the employee must actually
travel to his home, i.e. his bona fide place of residence. Where an
employee claims to have moved to Alaska or Hawaii or some other exotic
location, or where Carrier has other reasons to suspect the bona fides of
a purported move. Carrier will be within its rights to require the
employee to document the bona fides of his claimed residence. It should
not be burdensome for the employee to. produce a lease or other rental
agreement or documentation of home ownership. An employee who fails
to do so would be acting at his peril." (Emphasis added)
Against that backdrop, we come to the dispute in the instant case. The Carrier
argues that, consistent with Public Law Board No. 6302, Award 20, the Claimant
should have submitted documentation during the on-property handling of the case that
would have verified his residence in Jeffersonville, Indiana. The Carrier asserts that
the Organization has the burden of proving not only that the Agreement was violated,
but that the requested remedy is both proper and reasonable. In the absence of any
evidence that the Claimant actually lived in Jeffersonville, Indiana, the Carrier submits
that the Organization failed to meet its evidentiary burden with respect to a monetary
remedy.
Careful examination of Public Law Board No. 6302, Award 20 does not support
the Carrier's argument. As the Board in that case made clear, the Carrier may require
documentation regarding residence in two circumstances: where an employee claims
to live in an exotic location, or where the Carrier has reason to suspect the bona fides
of a move to a different residence. Based on our examination of the instant case as it
was developed on the property, neither circumstance is present here. Put another way,
proof of residence may be required from the Claimant, but only if it is first put in issue
by the Carrier. A fair reading of the record in this matter indicates that the bona fides
of the Claimant's residence were never in dispute, and therefore we conclude that, with
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02-3-99-3-717
one exception, the claims have merit and the requested remedy for reimbursement must
be granted.
The one exception refers to the claim submitted for travel allowance in May
1997. For the first time in its Submission before the Board, the Organization offered
various arguments disputing the Carrier's untimeliness defense. We require no citation
for the well-established principle that the Board is permitted to consider only those
arguments the parties themselves considered on the property. Because the
Organization during the handling
of
the claim did not refute the Carrier's contention
that the May 1997 claim was untimely filed, we are compelled to deny that claim.
Accordingly, paragraphs one and nine are denied; the remaining paragraphs
comprising the Organization's statement
of
claim are sustained.
AWARD
Claim sustained in accordance with the Findings.
ORDER
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order
of
Third Division
Dated at Chicago, Illinois, this 18th day of June, 2002.