Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 38204
Docket No. MW-37758
07-3-03-3-120
The Third Division consisted of the regular members and in addition Referee
Elizabeth C. Wesman when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Soo Line Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused
to allow Machine Operator T. A. Blumhagen the proper
mileage reimbursement for all miles incurred in using his
personal vehicle for transportation between his designated
(lodging) assemble points and work points during the month of
July 2001 (System File 81.698/8-003196-383).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant T. A. Blumhagen shall now receive mileage
reimbursement for the equivalent of five hundred seventy-two
(572) miles at thirty-four and one-half cents (.345¢) per mile in
the amount of one hundred ninety-seven dollars and thirty-four
cents ($197.34)."
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.
Form 1 Award No. 38204
Page 2 Docket No. MW-37758
07-3-03-3-120
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
At the time this claim was filed, the Claimant was assigned as a Tamper
Operator working Monday through Thursday on the Portal Subdivision. The
Organization contended that the Claimant had been erroneously denied corporate
lodging at Harvey, North Dakota, and was forced to drive from his home in Velva,
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Annamoose. The Organization maintained that the Claimant's residence had,
therefore, become his designated lodging or assembly point, and he was entitled to
full payment of mileage reimbursement from his home to the respective job sites.
The claim pointed out that the Claimant traveled 42 miles each way for five days
from Velva to Martin (a total of 84 miles each time) and 35 miles each way from
Velva to Annamoose. It noted that the Carrier allowed the Claimant only the
mileage from the lodging facility at Harvey, North Dakota, to Martin and to
Annamoose, rather than for the entire distance from his home to the work site.
In support of its position the Organization cited Rule 35 - Travel Time and
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Week. The applicable portions of that Rule - the preamble and 35(c) - read, in
pertinent part, as follows:
"The railroad Company shall provide for employe who are
employed in a type of service, the nature of which regularly requires
them throughout their work week to live away from home in camp
cars, camps, highway trailers, campers, hotels or motels as follows:
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shall be furnished with free transportation by the Company in
traveling from his headquarters point to another point, and
return, or from one point to another. If such transportation is
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Award No.
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Page 3 Docket No. MW-37758
07-3-03-3-120
not furnished, he will be reimbursed for the cost of rail fare if
he travels on other rail lines or the cost of other public
transportation used in making the trip; or if he has an
autnmnhile which he
is willina to _en
and
thn Cnmnanxr
authorizes him to use said automobile, he will be paid an
allowance of seventeen (17) cents for each mile or in accordance
with applicable Company policy, in traveling from his
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ueauquariers point to the work point, and return, or from one
work point to another."
In its denial of the claim the Carrier disputed the Organization's allegation
that the Claimant had been denied lodging. It stated that lodging was provided
within a 30-mile radius of the assembly point. However, the Claimant chose to
travel home instead. The Carrier also protested that there is nothing in the
Aureement that provides that if an employee elects to stay at home- then
his
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becomes his assembly point. It contended that there was no violation of Rule 35,
because the Claimant was not required to live away from home, "inasmuch as his
home was within close proximity to the work location," and he was not compelled to
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radius of his work location persuaded him to live at home.
The Board reviewed this case and the applicable Agreement language
carefully. Initially, it must be noted that there is no indication, save the
Organization's unproven assertion, that the Claimant was denied lodging at
Harvey. We concur with the Carrier that the Claimant is not free to designate his
own assembly point - in this case his own home - and then claim mileage for the
distance from his home to the job site. The Carrier paid the Claimant mileage from
the Carrier's designated assembly point and the job site. There is no indication in
the record that the Carrier has, at any time, allowed employees to designate their
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Agreement. The Board concurs with the finding in Third Division Award 23317:
". . . it
would be unreasonable to interpret [this rule] to arbitrarily
fax claimant's designated assembly point at the location he chose for
lodging."
Form 1 Award No. 38204
Page 4 Docket No. MW-37758
07-3-03-3-120
Moreover, we concur with similar findings contained in Third Division
Award 38013, in which the Board noted:
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the dispute involves the controlling language
negotiated above, i.e., `the nearest available lodging facility . . . .' For
the Organization to prevail, it has the burden of proving that the
language selected permitted a reading that 'nearest' referred to any
number of locations."
As in those cases, we find that the Claimant's preference for living at home,
rather than at a designated lodginpr facilitv nearer the artnal
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not obligate the Carrier to reimburse him for mileage he incurred because he chose
to remain at his own home.
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimants) not be made.
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By Order of Third Division
Dated at Chicago, Illinois, this 18th day of May 2007.