Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 37667
Docket No. MW-36641
05-3-01-3-175

The Third Division consisted of the regular members and in addition Referee Steven M. Bierig when award was rendered.

(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:


STATEMENT OF CLAIM:





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.
Form 1 Award No. 37667
Page 2 Docket No. MW-36641




The facts of this matter are not in dispute. We note that this is a companion case to Third Division Award 37665. On the dates pertinent hereto, the Claimant was regularly assigned to a position on a system gang and had previously met the requirements for the $1.00 allowance provided by Section 7 of the August 1, 1998 Consolidated System Gang Agreement.


The issue in this case involves the interpretation of Section 7 of the August 1, 1998 Consolidated System Gang Agreement, which reads, in relevant part, as follows:





The Organization contends that the Claimant is entitled to $1.00 per hour for each hour for which he was compensated, including holidays, vacation days and personal days. It contends that the plain language specifically provides that the $1.00 shall be paid not just for time worked, but for all hours compensated. Conversely, the Carrier contends that the burden is on the Organization to prove that the intent of the parties was that all hours were to be considered, and not just those worked. The Carrier contends that the matter has already been resolved by Public Law Board No. 6430, Awards 2 and 4.




Form 1 Award No. 37667
Page 3 Docket No. MW-36641
05-3-01-3-175
particular, the Organization asserts that the clause `straight time
compensation' requires the Carrier to pay eligible employees one
dollar per hour for holidays, personal leave, and vacation that derive
from the actual hours that such employees work in any Group 20, 26
or 27 position(s) for a period of six (6) months. In contrast, the
Carrier maintains that the clause `straight time compensation' does
not require such payments because `straight time compensation'
only covers hours that such employees actually work. The Carrier
adds that the parties knew how provide greater precision when they
intended to extend certain benefits as reflected in Rule 39(e), which
relates to per diem allowances. The Carrier therefore reasons that
the absence of such explicit language in Section 7 precludes a finding
that Section 7 extends to holidays, personal leave, and vacations.
A careful review of the record indicates that the clause `straight time
compensation' is silent in this regard. As a result, the clause
`straight time compensation" also is arguably ambiguous because it
is susceptible to either the interpretation offered by the
Organization or the interpretation offered by the Carrier. No other
evidence set forth in the present record provides suitable guidance to
resolve this uncertainty. In the absence of greater clarity in the
record, this Board lacks the authority to create, devise, or formulate
a proper meaning or interpretation for the clause "straight time
compensation" in Section 7. Such a determination is a matter for
collective bargaining, not arbitration. As a result, the Organization
necessarily failed to meet its burden of proof in the present case . . . ."

After a review of the evidence and the positions of the parties, the Board finds that the Organization has not been able to meet its burden of proof. We agree with the Carrier that the same matter has been addressed by Public Law Board No. 6430. While we agree that there are minor differences between the cited cases and the instant case, they are not sufficiently distinguishable to modify the result. The claim is, therefore, denied.

Form 1 Award No. 37667
Page 4 Docket No. MW-36641
05-3-01-3-175



      Claim denied.


                          ORDER


This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

                      NAT71ONAL RAILROAD ADJUSTMENT BOARD

                      By Order of Third Division


Dated at Chicago, Illinois, this 21st day of December 2005.