Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40102
Docket No. MW-40443
08-3-NRAB-00003-080272
The Third Division consisted of the red members and in addition Referee
Sherwood Malamud when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
( IBT Rail Conference
PARTIES TO DISPUTE: (
(Union Pacific Railroad Company (former Missouri
( Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier recovered and
refer to allow per diem allowance payment that had been
made to Mr. K. Nunn while assigned to on-line Gang #3807
from December 22 through December 31, 2006 (System File
MW-07-39!1469139 MPR).
(2) As a consequence of the violation referred to in Part (1) above,
Claimant K. Nunn shall now receive payment of the per diem
allowance for the aforesaid dates for a total of five hundred
seventy dollars ($570.00). "
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.
Form I
Page 2
Award No. 40102
Docket No. MW-40443
08-3-NRAB-00003-080272
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
Claimant K. Kuhn exercised his seniority on December 21,
and
displaced C. Etheridge (the Claimant in Third Division Award 40101) as a Truck
Driver on an on-line gang. The Claimant worked only one day of the compressed
half before the Carrier belatedly discovered that the Claimant did not meet the
qualifications for the position of Truck Driver because he did not possess a Class B
CDL license as required. The Claimant did not return to this Truck Driver position
on tang 3807. Pursuant to Rule 36, the payment of the per diem ceases when the
employee no longer works on an on-line gang. The Claimant was not entitled to the
per diem paid to him and later recouped by the Carrier. Accordingly, the instant
claim is denied.
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.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 19th day of November 2009.