In its July 24, 2001 claim letter, the Organization asserted that the Carrier had violated Rules 37, 70 and 80 of the Agreement when it denied the Claimant reimbursement for his expenses for driving his personal vehicle to and from work. It maintained that another employee who lived farther away from the territory on which both he and the Claimant worked was permitted to take a Carrier vehicle to his residence. The Organization noted that the Claimant was senior to the man taking the Carrier vehicle and had a shorter distance to travel. The Rules cited read as follows:
As noted above, the preceding claim was filed on July 24, 2001. Its companion claim, flied May 4 and May 6, 2001 (by the Vice General Chairman and the General Chairman, respectively) regarded exactly the same issue (failure to compensate for mileage expenses) and included a request for an Unjust Treatment Hearing pursuant to Rule 70.
In its September 17, 2001 denial of the claim at issue in this case, the Carrier contended that Rule 80 was not applicable in this matter. It asserted that there was nothing in the Agreement regarding the Carrier's provision of transportation to and from an employee's personal residence. Thus, the Carrier maintained, there was no loss of earnings.
The Organization appealed the Carrier's denial on October 26, 2001. It disputed the Carrier's position and insisted that allowing a junior employee to use a Carrier vehicle while denying the Claimant reimbursement was not only a violation of the Agreement as argued in the initial claim, but also a waste of Carrier funds, because the distance from the Claimant's territory was less than one fourth the distance of the junior employee who was allowed to use a Carrier vehicle. In that appeal, the Organization also reiterated its position that the Claimant had been unjustly treated. In a follow-up letter dated November 8, 2001, the Organization additionally protested that the Carrier had disregarded the Claimant's request for an Unjust Treatment Hearing (letters of May 4 and May 6, 2001).
By letter dated January 3, 2002, the Carrier denied the Organization's appeal. In that denial, the Carrier reiterated its position that nothing in the Agreement provided for reimbursement for the Claimant on account of his driving his own, rather than a Carrier, vehicle to work each day. It also pointed out that only employees who are available for call may take a Company vehicle home. If employees are not going to be available for call during the period they are at home, they are instructed to leave the company vehicle on the property and to use their own vehicle to return to their private residence. The Carrier also contended:
The Carrier also included in that denial a copy of a memorandum dated December 26, 2000, in which the Carrier notified employees that they must leave the company vehicle at their headquarters if they would not be available for calls.
With respect to the merits of the monetary claim, the Board reviewed the record and finds no evidence to contradict the Carrier's position that the only employees, regardless of seniority, who are allowed to use Company vehicles to return to their residences are those who will be available for call. There is no documentation in this record to suggest that the Claimant was available for call, but was denied the use of a Company vehicle. Thus the Board finds that that portion of the claim must be denied.
However, despite the Carrier's cavalier attitude regarding the Unjust Treatment Hearing, it does not have the latitude to simply ignore such a request, if timely made. To allow such discretion would be to irreparably damage the plain contract language in Rule 70. The purpose of that Rule is to allow an employee who believes - rightly or wrongly - that he or she has been unjustly treated to request a hearing into the matter. Nowhere in that Rule does it provide for the Carrier to pre-judge the matter and ignore a claimant's request based simply upon its best guess regarding the validity of the claim.
Accordingly, the Board finds, albeit too late to benefit the Claimant - even procedurally - that the Claimant was entitled to an Unjust Treatment Hearing as requested, and that the Carrier violated Rule 70 by ignoring that request.
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.