Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38099
Docket No. SG-37870
07-3-03-3-243
The Third Division consisted of the regular members and in addition Referee
Elizabeth C. Wesman when award was rendered.
(Brotherhood of Railroad Signalmen
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim on behalf of the General Committee of the Brotherhood of
Railroad Signalmen on the Union Pacific (UP):
Claim on behalf of Assistant Signalman S. R. McCoy, for actual and
necessary expenses; eight hours at the straight time rate for
traveling on Sunday, his rest day; and for Article XII benefits, until
he has completed his Assistant Signalman Training Program,
account Carrier violated the current Signalmen's Agreement,
particularly Rule 55 and Appendix S when on March 8, 2002, it
force assigned the Claimant to a position on Gang 4536 located in
Kansas City, MO, from his position on Gang 8654 located in Waco,
Texas, which was his designated headquarters and then refused to
properly compensate him beginning March 17, 2002, and continuing
until he has completed his training program. The claim was filed as
a continuing claim. Carrier's File No. 1317317. General
Chairman's File No. S-55-Appendix-S-274. BRS File Case No.
12639-UP."
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.
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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 involves a dispute concerning the application and interpretation of
Rule 55 - NO VALID BIDS RECEIVED and Appendix S of the Agreement between
the parties.
Rule 55 reads, in pertinent part, as follows:
"When a position is advertised for bid, no valid bids are received,
and the position is to be filled, the junior unassigned signalman will
be assigned. If there is no junior unassigned signalman available,
the available senior assistant signalman with a minimum of one year
of signal service will be assigned.
If the position is to be abolished, the notice of abolishment will be
included on the next advertisement or assignment notice as
information to the employees.
An employee force-assigned to a position under the provision of this
rule will be eligible for Article XII benefits."
Section 4 of Appendix S reads, in pertinent part, as follows:
"(a) Assistant Signalmen who are required at the direction of
management to travel between work locations account being rotated
to gain work experience will be paid travel time at their pro rata
rate for actual time spent traveling including waiting time in route,
not to exceed eight hours in any given day. For the purpose of
computing time under this provision a day, including rest days and
holidays, will be considered as commencing at the normal starting
time of the employee's regular assignment.
(b) Assistant Signalmen, who are required at the direction of
management to travel and who are not furnished a means of
transportation by the company will be reimbursed for the cost of
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any authorized public transportation. If an employee is authorized
to use his/her personal vehicle for transportation, he/she will be paid
an allowance at the authorized rate per mile for normal roadway
travel miles by the imost direct route.
(c) Each Assistant Signalman and Assistant Signalman Candidate
will be designated a headquarters point and home station on his/her
seniority district which will remain unchanged until they have
completed the training program and have been promoted to a Class
1 position. Assistant Signalmen and Assistant Signalmen
Candidates who request a change in the headquarters assignment or
who exercise their seniority in a normal manner to acquire a
position at another location will do so without expense to the carrier
and will assume the expense or per diem rules applicable to their
new assignment. Assistant Signalmen and Assistant Signalmen
Candidates who are rotated to gain the required work experience
will assume the hours of service, the general working conditions, and
the expense or per diem rules, if any, of employees or gangs to which
they are assigned. When Assistant Signalmen or Assistant
Signalmen Candidates are assigned to work with an employee who is
assigned a fixed headquarters location away from their assigned
headquarters, they will be reimbursed for actual necessary expenses
incurred."
On March 8, 2002, the Claimant was force-assigned to a position on Gang No.
4536 in Kansas City, Missouri. At the time, the Claimant was an Assistant
Signalman on Gang No. 8654 in Waco, Texas, and that was his designated
headquarters. On April :;0, 2002, the Organization filed the above claim on his
behalf. The Organization alleged that because the Claimant had been forceassigned to a position, he was eligible for Article XII benefits. The Organization
also noted that because the Claimant had not completed his training program,
under the provisions of Section 4(c) (quoted above) he was entitled to have his
seniority district remain unchanged until he had completed his training program.
In sum, the Organization insisted that, because the Claimant used his own vehicle to
drive from his residence to Independence, Missouri, rented a. room for the weeks he
was there, and incurred meal expenses, he was entitled to be reimbursed in
accordance with Section 4(c).
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The Carrier denied the claim on June 18, 2002. It contended that the
Claimant was force-assigned per Rule 55, and that training was not applicable in his
situation. It further contended that the Claimant was not covered under Appendix
S, Section 4(c) and was, therefore, not entitled to reimbursement as requested in the
claim.
Article XII, referenced in Rule 55, reads, in pertinent part, as follows:
"When a carrier makes a technological, operational, or
organizational change requiring an employee to transfer to a new
point of employment requiring him to move his residence, such
transfer and change of residence shall he subject to the benefits
contained in Sections 10 and 11 of the Washington Job Protection
Agreement, notwithstanding anything to the contrary contained in
said provisions, except that the employee shall be granted 5 working
days instead of `two working days' provided in Section 10(a) of said
Agreement; and in addition to such benefits the employee shall
receive a transfer allowance of $800. Under this provision, change
of residence shall not be considered `required' if the reporting point
to which the employee is changed is not more than 30 miles from his
former reporting point."
In its appeal of the Carrier's denial, the Organization pointed out that
Appendix S provided that the Claimant's seniority district should have remained
unchanged until he had completed his training program and was promoted to a
Class I position. It argued that because the Claimant had not finished his training
program, he was entitled to actual necessary expenses incurred when the Carrier
required him to change his headquarters point.
It is clear from this record that the Claimant had not finished his training
program. Further, he was not actually required to change his residence - i.e., sell
his house and move himself and his family from Waco, Texas, to Kansas City,
Missouri. Accordingly, he does not technically fall under the provisions of Article
XII with respect to entitlement to a "transfer allowance." However, in the narrow
circumstances of this case, the Claimant is entitled to reimbursement for "actual
necessary expenses incurred" under Section 4(c) of Appendix S.
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The present case is not dissimilar from the matter considered by the Board in
Fourth Division Award 4691. In that case the Board found:
"The Claimant's transfer obviously required, at least for
employment purposes, a change in residence. Whether he chose to
move his fancily is not relevant since he, as an individual, had to at
least take up residence in Missouri in order to protect his
assignment. Thus, this is not a situation where an employee, after a
transfer, elects to commute between his home and the new point of
employment and tries to unjustly gain moving benefits... As noted above, due to the particular narrow circumstances of this case, the
Claimant is entitled to reimbursement for actual necessary expenses incurred
(receipts provided). The Board notes that the Claimant bid on and received a
Signalman position on Gang 1495 and was released on April 30, 2002. Accordingly,
reimbursement shall cease as of that date. All other remedies are rejected account
not supported by the parties' Agreement.
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 21st day of February 2007.