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.
Claimant M. Crossley was a Trackman assigned to on-line Gang 9113 in December 2007. The assembly point for Gang 9113 was near Rosenberg, Texas. Gang 9113 worked a compressed schedule. The gang's rest days began on December 19 and its new work cycle began on January 3, 2008 at Rosenberg, Texas.
The Claimant had five vacation days and a personal leave day to be observed by the end of the year. The Organization asserted in its correspondence on the property that the Carrier insisted that he observe his vacation and personal leave day before observing his accumulated rest days. The Carrier did not dispute the Organization's assertion that it compelled the Claimant to observe his remaining vacation and personal leave day before the end of the year. Because this is an undisputed material fact, the Board finds and relies on this assertion as fact (Third Division Award 35773).
As required by the Carrier, the Claimant observed five vacation days during the period of December 13 through 17. He observed his personal leave day on December 18. He observed his accumulated rest days and holidays from December 19 through January 2, 2008.
On December 21, the Claimant learned that his bid for a position to on-line Gang 9558 was successful. He attempted to contact his supervisor on Gang 9113 in order to be released from that gang so he could travel on January 3 from his home Form 1 Award No. 41185
in Ft. Worth, Texas, to his new gang's assembly point in the area of Canadian, Texas. He could not reach his supervisor. The Claimant left a message, but his call was not returned.
Because he had not been released from Gang 9113, he reported to the assembly point for Gang 9113 on January 3, 2008. After roll call, the supervisor released him. He did not allow the Claimant to work on January 3. The Claimant then traveled from Rosenberg to Canadian, Texas, a distance of approximately 591 miles. He reported to Gang 9558 on January 4. Gang 9558 worked a compressed schedule. Its work cycle began on January 2.
The Claimant seeks payment of per diem for the rest days that fell during the period of December 19, 2007 through January 2, 2008. This claim requests a travel allowance for the trip in December from Rosenberg, Texas, to his home in Ft. Worth and from Ft. Worth to Rosenberg and then on to Canadian, Texas, on January 3. The claim for per diem for the rest days amounts to $855.00. The Organization also contends that the Claimant is entitled to eight hours pay because his supervisor did not permit him to work on January 3, 2008. The Board addresses each of these issues seriatim.
Rule 36 (b) (1) and (2) governs the determination of the claim for per diem. It reads, in relevant part, as follows:
The Organization argues that the Claimant was not voluntarily absent when he observed his vacation and personal leave day during the period of December 1318. The Carrier required him to observe those days before observing his rest days. Because the Carrier required him to observe the days, there is no break in compensated time. The Claimant was not "absent from service when work was available to him" on the workday immediately preceding such rest days.
to work on January 3. The fact pattern conforms to the contractual language. The Carrier violated this provision, when it refused to pay him the per diem.
Conversely, the Carrier argues that in accordance with past practice on this property, once an employee exercises his seniority and bids off of a gang, his assignment to that gang ends on the last day of compensated service on that gang. His assignment on the new gang and any entitlement to per diem, if the gang on which he bids is an on-line gang subject to payment of per diem, only begins when he reports to the new gang. The Carrier refers to several manager statements; one was made in 2004 by Timekeeping Supervisor Darrold Nord:
T. Epperson describes the practice on the Missouri Pacific Railroad, as follows:
The Carrier's principle defense is based on the stare decisis doctrine. In Public Law Board No. 7156, Award 2, Referee Benn determined that vacation constitutes a voluntary absence within the meaning of Rule 36 (b) (2). When the vacation precedes or follows rest days it precludes the payment of per diem, he ruled.
The stare decisis doctrine may not apply in this case. The Organization argues that the Carrier's insistence that the Claimant observe his vacation and personal leave day before his accumulated rest days renders the vacation and the personal leave day an involuntary absence. Neither the Carrier nor the Organization cited any Awards that addressed the question whether vacation or personal leave observed under compulsion remains voluntary in the context of the language of Rule 36 (b) (2).
The Board concludes that it need not determine this portion of the claim on the basis of the voluntary/involuntary arguments. The language of the Rule does not directly address the question of when the employee's responsibility and benefits end when he changes gangs through the exercise of his seniority to a position on a different gang that requires dislocation to another area. It is appropriate, therefore, to look to past practice to ascertain how the parties dealt with this particular factual pattern. The Board finds that the Carrier has established the existence of a practice on the former Missouri Pacific property. As succinctly stated by Supervisor Loggins, "Off day per diem is not allowed when bidding from one gang to another." This practice is determinative, and it serves as a basis to deny the claim for per diem.
Rule 37 (a) (1) governs the determination of travel allowance portion of the claim. It reads as follows: Form 1 Page 6
"At the beginning of the work season employees are required to travel from their home to the initial reporting location, and at the end of the season they will return home. This location could be hundreds of miles from their residence. During the work season the Carrier's service may place them hundreds of miles away from home at the end of each workweek. Accordingly, the Carrier will pay each employee a minimum travel allowance as follows for all miles actually traveled by the most direct highway route for each round trip."
The Claimant observed a personal leave day immediately preceding the rest days observed by Gang 9113. The travel allowance is paid when the travel to and from home brackets the rest days. The Organization argues that the Claimant traveled from Rosenberg to his home, when he completed service in December and returned to Rosenberg from his home in Ft. Worth when he reported to the assembly point for Gang 9113 on January 3, 2008. The Organization expands its claim to have the travel allowance cover the ensuing travel from Rosenberg to Canadian, Texas.
With regard to the Organization's claim for mileage from Rosenberg to Canadian, Texas, Rule 17 precludes the inclusion of this mileage in the calculation of the travel allowance. Rule 17 provides as follows:
The trip to Canadian, Texas, came about as a result of the Claimant having exercised his seniority to change from Gang 9113 in Rosenberg to Gang 9558 located in Canadian, Texas. Therefore, this leg of the trip and portion of the claim for travel allowance would generate extra expense for the Carrier. Consequently, this portion of the claim lacks merit and is denied.
When the Claimant's supervisor failed to respond to his request to be released from Gang 9113 upon learning of his successful bid on December 21, the Claimant completed one portion of the round trip when he reported to Rosenberg, Texas, on January 3. In the on-property exchange, the Carrier at one point asserted Form 1 Award No. 41185
that the supervisor informed members of the gang that if any of their bids to positions on other gangs were awarded during the rest days, they should consider themselves released. However, the Carrier failed to provide any proof, such as, a statement from the supervisor attesting to what he allegedly told the members of the gang.
The Board treats the Carrier's attempt at an affirmative defense as a mere assertion without proof. It treats the Claimant's travel from his home in Ft. Worth to Rosenberg as one leg of the round trip. With respect to this last point, the Carrier attached Public Law Board No. 6867, Award 16 which appears to determine whether just reporting to the assembly point of the original gang without the performance of any service constitutes a leg of the round trip. Award 16 relies on the analysis in Award 13 which is not in the record before the Board. In any event, the instant claim is determined on the basis of the first leg of the trip in December. If either leg does not fall within the qualifications for the travel allowance, the claim fails.
On the day before the commencement of the rest days, on December 18, the Claimant took a personal leave day. In Public Law Board No. 7156, Award 2, Referee Benn concluded that:
The Organization counters that the Claimant was compelled to take the personal leave day. However, the purpose of the travel allowance is to provide the scheduled payment for a round trip from the work location where an employee is in service to the Carrier to the employee's home for the weekend/rest days on a compressed schedule.
The personal leave intervenes. When personal leave is observed on the day before rest days are observed, the travel occurs after the personal leave day. The Form 1 Award No. 41185
travel is from the Claimant's location on his personal leave day; it does not immediately follow the work day. It may not be from his work location. The travel, therefore, cannot be considered to be a leg of the round trip, work location to home to same gang work location. Thus, this portion of the claim must be denied.
Lastly, the Organization argues that when the Claimant reported for work on January 3, the Carrier had no reason to prevent him from working that day. The Claimant's supervisor had the discretion to hold him over on Gang 9113 for January 3. Similarly, the supervisor had the discretion to release the Claimant immediately so as to allow him to travel to the assembly area of the gang to which he bid. The Organization cites no Rule that requires the supervisor to hold the Claimant to work that day. Thus, there is no Rule support for this portion of the claim. Because the Organization failed to meet its burden of proof, the instant claim lacks merit and must be denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.