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.
Prior to the commencement of Gang 9066's rest days, on October 17, 2002, the Claimant was displaced off of his Laborer's position on Gang 9066. Thereafter, the Claimant did not exercise his seniority until October 22 when he exercised his seniority to Gang 9012. The Claimant took October 18 through and including October 20 as rest days, followed by the use of a single vacation day on October 21.
As a result of the Claimant's acts described above, the Organization now seeks three days of per diem allowance covering a three rest day period (October 18, 19 & 20) and a single vacation day which the Claimant elected to take on October 21, 2002, immediately following this three rest day period, together with Travel Allowance monies. The Carrier viewed the Claimant's use of one single vacation day as akin to voluntarily absenting himself, thereby denying the Claimant the per diem amount for his rest days as well as the single day of vacation taken. In support of this position, the Carrier asserts that historically, it has not paid the per diem allowance for rest days where the employee has taken less than 40-hour vacation increments, i.e., has taken "single-day vacations" on the work day immediately preceding or following the rest day period. In addition, the Carrier asserts that the Claimant is not entitled to the round-trip travel allowance he seeks because he did not meet the conditions of Rule 36, Section 7. In addition, the Carrier asserts that the claim for Travel Allowance should be summarily denied due to the fact that the Organization failed to raise this claim at any time during the on-property handling.
In support of the Claimants, the Organization asserts that the Carrier's action violated Rule 36 (Travel Allowance) 39(e) (Per Diem Allowance) Appendix X-I (Side Form 1 Award No. 39506
Letter) and Article VIII of the 1996 National Vacation Agreement which provides for single-day vacations, the latter of which is currently incorporated into the Agreement as Rule 44(c). The Organization also asserted that the Claimant's observance of scheduled vacation does not reasonably fit the express exceptions set forth in Role 39(e) and accordingly, the Carrier's decision to withhold the per diem allowances at issue violates the Agreement. This is so, the Organization maintains, due the fact that ". . . vacations of less than a full week are not always for the benefit of the employee but on many occasions the Carrier is happy to allow less than a full week of vacation so the position is not vacant for an entire week." Finally, the Organization maintains that Public Law Board No. 6302, Award 14 is not "directly on point" as the Carrier asserts because the facts in the instant matter are distinguishable from Award 14, and that the pertinent Agreement provisions involved herein did not exist at that time.
In addition to the foregoing arguments, both parties make equity arguments: the Carrier asserts that per diem was specifcally designed to defray employees' expenses when they are working away from home and is not to be treated as ordinary income for periods when they are at home. For its part, the Organization maintains that the per diem allowance is not sufficient to cover daily expenses and employees should not be deprived of income merely because they take contractuallypermitted vacations. Respectfully, the positions espoused by the Carrier and the Organization are irrelevant here. The only issue before the Board is whether per diem payments for rest days are required by the Agreement when a vacation period of less than one week is taken adjacent to those rest days.
Following a careful review of the record, with particular attention paid to the cases cited by the Carrier as well as the Organization in support of their respective positions, and for the reasons that follow, we find that the issue in the claims before us have been litigated by the Organization in the past without success.
As an initial note, it is apparent that the Claimant did not qualify for Gang 9066's rest days due to the fact that he had been displaced from Gang 9066 prior to the beginning of Gang 9066's rest days. Accordingly, at the time he was displaced, the Claimant forfeited all working conditions associated with Gang 9066, including its rest days. This point notwithstanding however, for the reasons noted and discussed below, even had the Claimant been entitled to Gang 9066 rest days, the fact that he took a Form 1 Award No. 39506
The Carrier asserts that most recent on-property Third Division Awards 39294, 39298, 39323, 39324, 39328, and 39331 have upheld the Carrier's recoupment and/or denial of rest day per diem allowances under substantially identical circumstances as present herein. Invoking the affirmative defense of collateral estoppel, the Carrier argues that the above Awards are controlling precedent which the Board is compelled to follow. It therefore urges that the Board deny the instant claim.
Following our review of the facts and arguments in the parties' Submissions to the Board, we rind from our close review of the entire record that the instant claim is indeed substantially identical to the cases considered by the Board as noted above. It is significant in reaching our decision in this case that the instant matter as well as those Third Division cases noted above is governed by the identical Agreement Rules. It is also significant that each of these decisions carefully considered the findings and conclusions in Award 14 of Public Law Board No. 6302 and, having done so, incorporated Award 14 thereby concluding that Award 14 was controlling precedent. Indeed, in Awards 39328 and 39331, the Board concluded:
As an initial note, the Claimant is not entitled to his demand for Travel Allowance due to the fact that the Board can find no evidence that the Organization Form 1 Award No. 39506
In the instant matter, the Claimant was notified of his displacement from Gang 9066 on October 17, but chose not to exercise his seniority until October 22, 2002 when he exercised his seniority to Gang 9012. Given this scenario, it is clear that the Claimant's delay in exercising his seniority rights deprived him of the Travel Allowance he now seeks.
Finally, and totally apart from the reasoning noted above, the Claimant is not entitled to the round-trip allowance claimed because he did not meet the conditions of Rule 36 (Travel Allowance) at Section 7 (End of Work Week Travel Allowance for Traveling Gangs) in that his reporting to Gang 9012 was not for the start-up of that Gang, his departure from Gang 9066 was not occasioned by the shut-down of that Gang, and the Claimant did not make a round-trip leaving Gang 9066 and returning to Gang 9066. Instead, the Claimant, through his exercise of seniority, moved from Gang 9066 to Gang 9012, an act for which the Carrier bears no expense under Rule 18(b). Form 1 Award No. 39506
In conclusion, relative to the claim for per diem allowance, we hold that given the factual record before the Board, the Third Division Awards noted above are controlling precedent, and pursuant to the doctrine of collateral estoppel this case does not merit a sustaining award. There is no evidence in the record that the above Awards, deemed relevant by the Board, are palpably erroneous, thus warranting their rejection by the Board. Given the identity of the parties, facts and Rules, the Board finds that the above cited Third Division Awards together with Award 14 of Public Law Board No. 6302 are controlling, as the Carrier has asserted, and the holdings of each must be followed in the instant cases.
Relative to the claim for Travel Allowance, whereas the Claimant has not met the conditions outlined in Rule 36, Section 7, this fact, together with case precedent, must result in the denial of this portion of the Organization's claim.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.