Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 45081 Docket No. MW-47037
24-3-NRAB-00003-220085
The Third Division consisted of the regular members and in addition Referee Patricia T. Bittel when award was rendered.
(Brotherhood of Maintenance of Way Employes Division – (IBT Rail Conference
PARTIES TO DISPUTE: (
(Keolis Commuter Services STATEMENT OF CLAIM:
“Claim of the System Committee of the Brotherhood that:
The Agreement was violated when the Carrier failed and refused to allow Mr. A. Labao travel time and mileage in connection with work outside of his regularly assigned schedule on multiple dates beginning on November 14, 2020 and continuing until the violation ceases to exist (System File S-2032K-321/ BMWE 13/2021 KLS).
As a consequence of the violation referred to in Part (1) above, Claimant A. Labao shall now be ‘*** properly compensated for all missed travel time compensation. ***’ and be ‘*** allowed an additional
$25.00 for each day of travel for which they (sic) are not properly compensated in accordance with Rule 32. This Claim is also continuous and inclusive of all violations until the violation ceases to exist. ***’”
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.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
Parties to said dispute were given due notice of hearing thereon.
The Organization maintains Claimant was directed to travel outside of his regularly assigned hours using his personal vehicle, yet the Carrier improperly declined to compensate him with travel time and mileage. The resulting claim has been processed through the grievance procedure to consideration by this Board.
The applicable contract provision is Rule 11 regarding Travel Time. It states as follows in pertinent part:
Except as otherwise provided, the following rule will apply.
An employee waiting, or traveling by direction of MBCR by passenger train, motor car or any other method of transportation, will be allowed straight time for actual time waiting and/or traveling during or outside of the regularly assigned hours.
When authorized to use their personal vehicle, the employee will receive the standard MBCR/IRS authorized mileage reimbursement.
This rule does not apply to employees waiting or traveling in the exercise of their seniority rights.
On multiple dates beginning November 14, 2020 and continuing, Claimant was directed by the Carrier to utilize his personal vehicle to travel outside of his regularly assigned hours to report to his assigned location in connection with the performance of overtime service. There is no dispute that Claimant used his personal vehicle outside of his regularly assigned hours and reported to his assigned location in connection with the performance of overtime service. In accordance with the clear and unambiguous language of Rule 32 of the Agreement, he is entitled to be compensated for travel time and mileage in connection with working outside his regularly assigned hours on the claimed dates.
It is important to note that the Carrier does not dispute the above facts. Despite being well aware of the decision rendered by this Board in Award 43455, the Carrier chose to defend against the claim by asserting that Claimant was not entitled to travel time and mileage because the overtime was voluntary. Notably, Award 43455 held that Rule 32 does not have an exception for cases where the overtime is voluntary.
Presently, when the Carrier directs an employee to utilize a personal vehicle to travel for work, it pays for travel time and reimburses mileage, and is contractually required to do so. The plain wording of the Rule 32 does not envision compensation when the employee is not explicitly directed by the Carrier to perform work. When an employee elects to perform voluntary overtime assignments, that employee exercises seniority over other employees. Rule 32 explicitly excepts the payment of travel time under those circumstance: “This rule does not apply to employees waiting or traveling in the exercise of their seniority rights.”
Claimant’s only allegation is that he is owed travel time in conjunction with voluntary overtime which he achieved by exercising his seniority over other potential candidates to perform work. Rule 32 has no application to the circumstances as set forth in the claim and Claimant has no right to travel time or mileage.
The contract language here concerned has two points requiring interpretation. The first is whether the limitation of mileage and travel allowance to trips taken “by direction of” the employer applies to voluntary overtime. Awards have been issued both ways. One point of view is that the employee is voluntarily opting to take on the travel and therefore is not traveling “by direction of” the Carrier. The other interpretation is that the employee is traveling to a location selected by the Carrier and therefore must be deemed to be traveling “by direction of” the Carrier. We find the former reading to be the more accurate one. The employee, in agreeing to work the overtime, chooses to go where the work is located, and therefore agrees to go work there. The Carrier is not directing the employee to do so, since the employee has the option of declining the overtime for any reason, including a disinclination to engage in the travel.
The second aspect of the contract language in controversy is the language at the end of Rule 11 stating: “This rule does not apply to employees waiting or traveling in the exercise of their seniority rights.” We find the acceptance of overtime to be an exercise of seniority rights. See Award 43619 and 43620 which held accepting overtime was an exercise of seniority. Opportunities for overtime are offered in order of seniority, and a less senior employee has no right to an overtime opportunity taken by a more senior employee. The senior employee has a seniority right to accept or decline the overtime, and exercises that right upon acceptance of an overtime opportunity. It follows that there is an express exception to the right to travel allowance and mileage when the employee, in the exercise of seniority, opts to accept an overtime opportunity, thereby precluding less senior employees from working the time.
AWARD
Claim denied.
ORDER
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 31st day of October 2023.