PUBLIC LAW BOARD N0. 3460
Award Nos. 76 & 77
Case Nos. 76 & 77
PARTIES Brotherhood of Maintenance of- Way Employes · -
TO and
DISPUTE: Burlington Northern Railroad Co_
STATEMENT "1. The Carrier violated the Agreement when it
OF CLAIM: failed and refused to reimburse Division
Welder, B. J. Kooren, for noon meal expense
incurred during March, April and May, 1983-at
Helena, Montana.
2. Because of the aforesaid violation, Claimant
8. J. Kooren shall be allowed two hundred and
thirty-six dollars and seventy cents ($236.70)
noon meal expenses."
FINDINGS
Upon the whole record, after hearing, the Board finds that the
parties herein are Carrier and Employees within the meaning of the
Railway Labor Act, as amended, and that this Board is duly
constituted under Public Law 89-456 and -has jurisdiction of the
parties and the subject matter.
Claimant herein had a seniority date of June 15, 1953 and had been
employed by one of Carrier's predecessor railroads, the former
Northern Pacific Railway Co. During his tenure with Northern
Pacific Railway Co., Claimant did not carry his noonday lunch but
customarily received reimbursement for meal expenses from Carrier,
whether or not he was required to be away from his regular
headquarters. Following the merger of the Northern Pacific into
the Burlington Northern in 1970, Carrier continued the practice of
reimbursing Claimant for the cost of his mid-day lunch until
March, 1983 when it refused to continue the reimbursement practice
for expenses Incurred during March, April and May, 1983.
Petitioner insists that the thirty-year practice of Claimant being
reimbursed for his noon day lunch cannot be arbitrarily and
unilaterally disturbed by Carrier. It is noted by Petitioner that
the Agreement is devoid of any provision which would preclude
such payment under the circumstances. Neither Rule 36 of the
current Agreement nor former Rule 49, under the Northern Pacific
Agreement, addressed the type of situation involved. In short,
Petitioner relies entirely upon the long-established past practice
to support its claim. Rule 49 of the old Northern Pacific
Agreement provides as follows:
"Actual, necessary expenses incurred in purchasing meals and
lodging, while away from regular section, headquarters or
outfits, to work at the direction of the railway company,
will be allowed, except that no expense will be allowed for
the first mid-day lunch while away from regular section,
headquarters or outfits, to work if customarily carried by
the employee."
Rule 36 of the current schedule contains the following language:
"A. Employees, other than those covered by Section B of this
Rule, will be reimbursed for cost of meals and lodging
incurred while away from their regular outfits or regular
headquarters by direction of the Company, -whether off or on
their assigned territory. This Rule not to apply to mid-day
lunch customarily carried by employees nor to employees
travelling in exercise of their seniority rights. Note: It
is understood that the phrase "mid-day lunch customarily
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carried by employees" applies to those employees whose
program
of
work takes them out and back each day so that they
can eat their morning and evening meals at headquarters and
prepare their lunch before leaving in the morning. Also,
that under those circumstances, an employee is not entitled
to reimbursement for the noon day meal, regardless
of
where
he eats it. On the other hand, an employee whose duties take -
him away from headquarters and/or regular outfits for lodging
will be reimbursed for the cost for all regular meals away
from headquarters or outfits the day he leaves as well as
other days while on a trip."
Carrier argues that nothing in the former Northern Pacific nor -
current expense rules specifies that employees will be reimbursed
for expenses for noon lunches when they are returning to their
headquarters or outfit point each day. Therefore, even proof of a
past practice
of
reimbursing this type of meal would not
contravene the clear language of the Agreement. The practice is
particularly inappropriate to rely on, according to Carrier, since
there is absolutely no evidence that this past practice was done
with the knowledge and approval
of
Carrier's highest designated
officers. Carrier notes further that there is not only no rule
support for the claim herein but the issue has been resolved on
this property between the parties in Award No. 48 of Public Law
Board No. 2206.
It is important to note the reasoning of the Board in Award No. 48
referred to supra. In that award, the Board stated:
"Thus, the initial step to determine whether Claimant had a
"pre-existing right" to reimbursement for all non-lunch
expense which could be preserved by Rule 60 (c) is to
determine whether 38 (a) on the former 5P & S was silent or,
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ambiguous on the subject of meals customarily carried by
employees. A lot of phrases have been interpreted to mean
that, if an employee had the opportunity to carry his lunch
from home in the morning, even if he chose to buy his lunch,
should not be reimbursed for the cost of such lunch (see PLB
1844-25). We conclude that the language of former Rule 38
(a), just as present Rule 36, precluded noon meal expense
reimbursement unless the employee is lodged away from
headquarters. Accordingly, the practice under Rule 38 (a) is
not controlling and could not create a pre-existing right
which is preserved in Rules 1 (c) and 69 (c) ....
The Board believes that since the issue has been resolved by the
Board decision indicated above between the parties, no useful
purpose could be served in discussing it further. The principle
of stare decisis is appropriate and applicable in this instance.
The claim must be denied. -
AWARD _
Claim denied.
I. M. Lieberman, tJeutral-Chairman
W. Hodynsky, Ca ^ier ember F. H. Funk, Employee Member
9~a/~B
St. Paul, Minnesota
1988
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