Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44103 Docket No. MW-43009
20-3-NRAB-00003-190356
The Third Division consisted of the regular members and in addition Referee Jeanne Charles when award was rendered.
(Brotherhood of Maintenance of Way Employes Division (IBT Rail Conference
(Union Pacific Railroad Company STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when Claimants B. Shannon, Jr., G. Willey and G. Bishop, III reported for duty to Gang 9076 on November 8, 2013 but were not allowed to work and when the Carrier subsequently failed and refused to allow them per diem allowance for said day (System File J-1439U-501/1597865 UPS).
As a consequence of the violation referred to in Part (1) above, Claimants B. Shannon, Jr., G. Willey and G. Bishop, III shall each be compensated ‘*** for one hundred eighteen dollars and forty seven cents ($118.47) non-taxed Per Diem for being sent home at the direction of management and not allowed to work.’”
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.
Parties to said dispute were given due notice of hearing thereon.
Claimants B. Shannon, Jr., G. Willey and G. Bishop, III all established and maintained seniority in the Carrier's Maintenance of Way and Structures Department. In November 2013, they were all regularly assigned and working on Consolidated System Gang 9068, an online production gang which was working a T-1 consecutive compressed half work period schedule. Under such a schedule, the gang was assigned to work consecutive workdays, and then assigned to observe consecutive rest days during each half of the month. In this manner, Gang 9068 was scheduled to work November 1 through November 8, 2013 and then observe rest days from November 9 through November 15, 2013.
The Claimants reported as directed on November l, 2013 and worked Gang 9068 T-1 's schedule without issue through November 7, 2013. During this time, they received their standard rate of pay for hours worked, as well as per diem for the scheduled workday. At the close of shift on November 7, 2013, the Carrier abolished the Claimant’s positions. On the morning of November 8, the Claimants reported to Consolidated System Gang 9076 and exercised their seniority and displaced onto Gang 9076. The Claimants were not allowed to work and were directed to go home and observe vacation.
Based on the Carrier's refusal to provide the Claimants with per diem for November 8, 2013, by letter dated January 2, 2014, the Organization filed a timely claim on behalf the Claimant. The Carrier denied the claim taking the position that the Claimants had taken vacation on November 8, 2013, and therefore were not entitled to per diem.
The claim was properly handled by the Organization at all stages of the appeal up to and including the Carrier’s highest appellate officer. The matter was not resolved and is now before this Board for resolution.
In reaching its decision, the Board has considered the record evidence and arguments of the parties, whether specifically addressed herein or not. As the moving party, it was the Organization’s responsibility to meet its burden to prove by a
preponderance of evidence that the Carrier committed the alleged violation(s). After careful review of the record, the Board finds the Organization has met its burden.
The April 25, 2012 National Local Agreement states, in part:
“Per diem allowances provided to employees headquartered on-line or in other mobile service will only be paid on days when compensated service is performed and days scheduled but not worked at the direction of management (e.g. Hours of Service required rest for CDL drivers, inclement weather).”
The plain language of the Agreement provides that employees are entitled to per diem allowances for days scheduled but not worked at the direction of management. The Claimants were scheduled to work on November 8, 2013. However, the Claimants were directed to leave the worksite and take vacation. Therefore, the Claimants are entitled to the per diem allowances. The Carrier’s failure to pay the per diem violated the Agreement.
Claim sustained.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division Dated at Chicago, Illinois, this 11th day of August 2020.