Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39277
Docket No. MW-38294
08-3-NRAB-00003-040189
(04-3-189)
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed and
refused to allow System Gang employe R. G. Fox the per diem
allowance for the dates of March 1, 2, 3, 4, 5, 6 and 7, 2003
(System File C-0339-103/1362443).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant R. G. Fox shall now receive the per diem allowance
for the aforesaid dates for a total per diem allowance of three
hundred sixty-four dollars ($364.00)."
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. 39277
Page 2 Docket No. MW-38294
08-3-NRAB-00003-040189
(04-3-189)
Parties to said dispute were given due notice of hearing thereon.
The Claimant was regularly assigned to on-line Gang 8581 working
consecutive compressed halves pursuant to Rule 40(a). The Claimant observed
assigned rest days of March I through 7, 2003. Per the Claimant's request, the
Claimant then took March 8, 9 and 10, 2003 (ten hour days) as vacation days,
returning to work on March 11, 2003. Although initially told that he would be
compensated rest day per diem allowance for his rest days March 1 through 7, 2003,
the Carrier subsequently determined that the Claimant would not be entitled to that
compensation. This claim followed.
Rule 39 - PER DIEM ALLOWANCES reads, in relevant part, as follows:
"(e) On-line Service. Employes assigned with headquarters on-line
as referenced in Rule 29, will be allowed a daily per diem allowance
of $48.00 ($52.00 effective July 1, 2002 and $57.00 effective July 1,
2005) to help defray expenses for lodging, meals and travel.
The foregoing per diem allowance will be paid for each day of the
calendar week, including rest days, holidays and personal leave
days, except it will not be payable for workdays on which the
employe is voluntarily absent from service, or for rest days, holidays
or personal leave days when the employe is voluntarily absent from
service when work is available to him on the workday immediately
preceding or the workday immediately following said rest days,
holidays or personal leave days. No elimination of days for per diem
allowances or vacation credits will occur when a gang is assigned a
compressed work week, such as four (4) ten-hour days."
Under Rule 39(e) the per diem allowance ". . . will not be payable . . . when
the employe is voluntarily absent from service when work is available to him on the
workday.. . immediately following said rest days . . . ." Under this Rule, because he
took vacation days on March 8, 9 and 10, 2003 immediately following his rest days,
the Claimant was not entitled to the per diem allowance sought by the Organization
Form 1 Award No. 39277
Page 3 Docket No. MW-38294
08-3-NRAB-00003-040189
(04-3-189)
on his behalf. See e.g., Third Division Awards 37163 and 37105, as well as Public
Law Board No. 6302, Award 14.
AWARD
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 21st day of July 2008.