Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 44106 Docket No. MW-43020
20-3-NRAB-00003-190359
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 the Carrier failed and refused to properly compensate Group 26 System Truck Driver R. Arevalo at his overtime rate of pay for reporting as instructed to participate in a respirator fit test examination on December 2, 2013 and when it failed and refused to compensate him at the appropriate rate for mileage incurred in traveling from his residence to Salt Lake City, Utah and returning to his residence in connection with attending said training and testing service (System File D-1435U-302/1598997 UPS).
As a consequence of the violation referred to in Part (1) above, Claimant R. Arevalo ‘*** shall be paid for three (3) hours at his overtime rate of pay to compensate him for his time utilized on his rest day in the service of the Company, or one hundred eighteen dollars and seventy one cents ($118.71). The Claimant shall further be reimbursed for his round trip, or sixty (60) miles at the Carrier’s authorized rate, or thirty three dollars and ninety cents ($33.90). This is compensation the Claimant would have been entitled to absent the violation of the Collective Bargaining Agreement.’”
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.
Claimant R. Arevalo established and maintains Group 26 seniority as a System Truck Driver. Subsequent to the date giving rise to the instant dispute, he was assigned and working as such on Gang 8957. In November 2013, the Claimant was notified by the Carrier that he needed to participate in certain physical exams, including a respirator fit exam, in order to remain compliant with Carrier policies. The Carrier has vans that attend town hall meetings, safety meetings and gang headquarters to provide employees the opportunity to complete their testing during working hours. Employees are also provided notice 90, 60 and 30 days prior to the expiration of their last test. The Claimant complied with the testing requirement by making an appointment on his rest day to participate in a respirator fit exam and drove his personal vehicle to a Carrier- designated facility located approximately thirty (30) miles from his residence in Salt Lake City, Utah.
After the Claimant was examined, he requested reimbursement for time, travel expenses and exam costs incurred in connection with taking the respirator fit exam at the facility in Salt Lake City, Utah. The Claimant's supervisor denied his request for reimbursement.
On January 27, 2014, a claim was submitted to the Carrier on behalf of the Claimant requesting three (3) hours' pay at the Claimant's respective overtime rate of pay as well as reimbursement for the costs of the sixty (60) mile round trip the Claimant incurred traveling to and from the testing facility.
By letter dated February 20, 2014, the Carrier denied the Claimant's reimbursement request on the grounds that the Agreement did not require such payments. The parties thereafter attempted to resolve the dispute in the customary and usual manner, including a claims conference on August 21, 2014. 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 is the Organization’s responsibility 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 not met its burden.
Rule 14(b) of the Agreement provides, “The Company will bear the expense of physical examination of applicants of the classes included in this Agreement who are required under the Company’s rules to undergo a physical examination to determine their fitness for the work required, and to protect the health and safety of employees.” The Board finds no violation of the alleged contract provision because the Claimant was not directed by the Carrier to take the respirator fit test at the place or time the test was taken.
The Claimant was provided notice of the need to take the test at 90, 60 and 30- day intervals prior to the due date for the test which is mandated by the Occupational Safety and Health Administration. The Carrier made available access to a facility where employees could be tested during regularly scheduled work hours. Had the Claimant decided to take the test at one of these facilities, he would not have incurred any travel expenses or had to be tested on a rest day. The Carrier determined that it was due to the Claimant’s lack of action or delay that he was forced to take the test on his rest day. This Board finds nothing in the record to rebut this view. Additionally, the relevant language in Rule 14(b) does not specify that the Carrier will pay travel expenses for mandated tests. The Carrier did pay for the test as required by Rule 14(b). Accordingly, there was no contract violation.
Claim denied.
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 11th day of August 2020.