positions for various System Production Gangs (tie, surfacing, etc.) throughout its territory. In anticipation of the 1999 work season, the Carrier bulletined and assigned positions for System Gang 9011 in late 1998. In its original iteration, that particular gang was assigned to work a Monday through 1 uursuay workweek, LCL hours per day, with Friday, Saturday and Sunday designated as rest days. As initially bulletined, said gang began work on or about January 4, 1999, a time when Claimant G. J. Morgan, who had established and held seniority in various classes within the Track Subdepartment, was in furlough status.
After just two weeks, however, the Carrier rebulletined the four-day positions of System Ganz 9011; using the same System Gang number but changing the workweek and hours to Monday through Friday from 7:30 A.M. until 4:00 P.M., with Saturday and Sunday designated as rest days. Only about ten of the incumbents of the originally bulletined four-day-position of System Gang 9011 .,lo..*o.i to rr.moin nn thn rnh_nntinnrl tll7n_(i9V_nnvltlnn of qvQtpm C-'nnv 9(111_ The 1n1L.lLV.u LV a..a.._au vu aaav w.u_ay...aa.ra. aaw. a w..vm v. _____ `._. _.._,_. _~_ Claimant bid on one of the advertised System Gang Laborer positions and, by assignment bulletin effective January 21, 1999, was awarded one of 26 Laborer Form 1 Award No. 37053
positions. As thus reconstituted, System Gang 9011 began working the new five-day schedule effective January 25, 1999.
On Monday, January 25, 1999, the Claimant reported to the start up location of reiterated System Gang 9011 at Jamesport, Missouri, having traveled via personal vehicle from his home in Prewitt, New Mexico. The distance between Prewitt, New Mexico, and Jamesport, Missouri, via the most direct highway route is 964 miles. The Claimant filed a claim for travel allowance, invoking the language of Ar tile xr_V of the qr_ptrmher 26; 1996 National Agreement which, in pertinent part, reads:
In the particular facts and circumstance presented on this record, we are persuaded that the Claimant was entitled by the language and the manifest intent of the above-quoted contract provision to receive $225.00 travel allowance.
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 37053 (Docket MW-36208)
the claim should have been $225. Even more importantly, on May 15, 2000, jusi tell nays ucr_mc filing its Notice of Intent, the Organization conceded the fact that Gang 9013 was not the Gang involved and changed the Gang to 9011. The Board should have dismissed the claim which was not the same as initially handled on the property. See Third Division Award 25967 (Eischen).
With respect to the merits the dispute involves Article XIV Section 1(b) of the 1996 Agreement. It provides:
In the handling of the dispute on the property, the Carrier provided evidence that Gang 9011 was in existence at the time Claimant bid for a position on it and that the bulletin bid by the Claimant specifically stated that the bulletin was intended to fill existing vacancies caused by some employees transferring to other gangs. In addition, it should be noted that 26 employees were assigned to 34 member-Gang 9011 by bulletin at the time the Claimant was assigned. There is no evidence that anyone other than the Claimant filed a claim for travel allowance.
All that occurred in this dispute is that the hours of existing Gang 9011 were changed, many employees of the Gang bid off for other positions and the Claimant was a successful bidder for one of the existing vacancies. There is no evidence that the Agreement provided that such occurrence be considered "the start up" of a gang. The claim should have been denied on the merits - if reached. We dissent.
LABOR MEMBER'S RESPONSE
TO
CARRIER MEMBERS' DISSENT
TO
AWARD 37053. DOCKET MW-36150
(Referee Eischen)
The Dissent of the Carrier Members complains that the Board did not dismiss the claim because it was allegedly not the same claim as was progressed on the property. While it is true that there was a dispute insofar as what the gang number was and how many miles were driven by the Claimant, the matter was cleared up during the handling of the dispute on the property. The important point is that what was ultimately determined to be due the Claimant was completed during the on-property handling. It is clear that the Claimant did not change nor did the date of the claimed violation change. The monetary remedy was reduced and such did not change the subject of the initial claim, i.e., the Claimant was denied start-up allowance in accordance with Article XIV of the September 26, 1996 Mediation Agreement. Hence, the Carrier's protestations are nothing more than sour grapes.
Apparently, the Carrier is contending that because the Claimant was not fortunate enough to be awarded a position on the gang when the first bulletins went out, he is not entitled to start-up travel allowance when he eventually was assigned to the gang. In other words, the Carrier is contending that only those employes who bid on the original jobs are entitled to start-up travel allowance. Of course, the able neutral read through the Carrier's smoke screen and properly determined that the "manifest intent" of Article XIV travel allowance was that the Claimant was entitled to the start-up travel allowance.
Next the Carrier Members allege that no other employe laid claim to the start-up travel allowance. Whatever the relevance that has to this dispute is unknown. It could be that the other successful applicants could have been working on another gang connected with the same project and had already received start-up travel allowance; or they may not have traveled more than fiftyone (51) miles for the start-up travel allowance to be applicable; or they may have been paid the appropriate start-up travel allowance. We do not know the answers to those questions and because we do not does not make this claim invalid. The Majority's findings in this case are correct and sound. The Dissent is nothing more than a thinly veiled attempt to shroud the Carrier's blatant violation of the Agreement. The award is correct in every respect and I concur with the findings,