' BROTHERHOOD OF MAINTENANCE '
 Parties OF WAY EMPLOYES '
 to the Case No. 4
 Dispute VS. Award No. 4
 ' MAINE CENTRAL RAILROAD COMPANY-PORTLAND '
 ' TERMINAL COMPANY '























                  OPINION OF THE BOARD


This claim arises out of the same set of circumstances discussed in Award No. 3 of this Public Law Board. The Organization seeks away-from-home expenses for members of a tie gang (whom it has now been determined were working spare) headquartered at Oakland. The central issue in this dispute is whether crews working spare are entitled to away-from-home expenses. (The right to cancel an advertisement, as well as the Organization's objection to the manner in which Carrier responded to the initial claim were disposed of in Award No. 2.)
 In his response to the claim, Engineer of Track D. C. Eldridge pointed out that "In an agreement between Mr. Daniel A. LaPointe and myself, all employees who traveled from Oakland to any other point where the tie crew worked were allowed [only],mileage to the job and return to Oakland." The Organization objected to the statement, contending that if in fact there was such an agreement, those making it were without authority to do so. The Organization argued that it would have been in violation of the current Schedule Agreement. If, upon a review of the Scheduled Agreement, it becomes apparent that there is provision for away-from-home expenses for employes working spare, then the Organization is correct in maintaining that that provision takes precedent over any oral agreement. (In a response

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to Carrier's denial of the claim, General Chairman John J. Lattanzio contended that "The provisions of the agreement and away-from-home expenses pertain to all employees no matter what the Carrier considers their employment status when employed in the nature of work which would not allow them to return to their designated headquarters.) There are several documents that must be considered to determine if that in fact is the case.
 The first is Award No. 298, dated September 1967, certain provisions of which (applicable to Maintenance of Way employes) were incorporated by Carrier in the Agreement. This Award, in Section II, clearly deals with "employees filling relief assignments or performing extra or temporary service," as well as regular employes. The pertinent language is as follows:

          II. Employees (other than those referred to in Section I above and other than dining car employees) who are required in the course of their employment to be away from their headquarters point as designated by the carrier, including employees filling relief assignments or performing extra or temporary service, shall be compensated as follows:


          [Employes referred to in Section I are those "employed in a type of service, the nature of which regularly requires them throughout their work week to live away from home in camp cars...," etc.]


      A. The carrier shall designate a headquarters point for

      each regular position and each regular assigned relief

      position. For employees, other than those serving in

      regular positions or in regular assigned relief positions,

      the carrier shall designate a headquarters point for

      each employee. No designated headquarters point may

      be changed more frequently than once each 60 days and

      only after at least 15 days' written notiqe to the

      employee affected.

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          B. when employees are unable to return to their headquarters point on any day they shall be reimbursed for the actual reasonable cost of meals and lodging away from their headquarters point not in excess of $7.00 per day.


          C. An employee in such service shall be furnished with free transportation by the railroad company in traveling from his headquarters point to another point, and return, or from one point to another. If such transportation is not furnished, he will be reimbursed for the cost of rail fare if he travels on other rail lines, or. the cost of other public transportation used in making the trip; or if he has an automobile which he is willing to use and the carrier authorizes him to use said automobile, he will be paid an allowance of nine cents for each mile in traveling from his headquarters point to the work point, and return, or from one work point to another.


          D. If the time consumed in actual travel, including waiting time enroute, from the headquarters point to the work location, together with necessary time spent waiting for the employee's shift to start, exceeds one hour, or if on completion of his shift necessary time spent waiting for transportation plus the time of travel, including waiting time enroute, necessary to return to his headquarters point -or to the next work location exceeds one hour, then the excess over one hour in each case shall be paid for as working time at the straight time rate of the job to which traveled. When employees are traveling by private automobile time shall be computed at the rate of two minutes per mile traveled.


    Other relevant documents are the Schedule Agreement and the Memor-


andum of Agreement Maine Central Railroad Company, Portland Terminal

 Company and the BMWE, dated September 16, 1983. Rule 32 of the Schedule

 Agreement requires Carrier to designate a headquarters point:
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        Management shall designate a headquarters point for each regular position and each regular assigned relief position. For employees, other than those serving in regular positions or in regular assigned relief positions, management shall designate a headquarters point for each employee. No designated headquarters point may be changed more frequently than once each 60 days and only after at least 15 days written notice.

Rule 35 speaks of benefits provided for employes who are required to live away from home during the week:

        Management shall provide for employees who are employed in a type of service, the nature of which regularly requires them throughout their work week to live away from home in camp cars, camps, highway trailers, hotels or motels as follows:


Rule 5 (i) of the Memorandum, on the establishment of spare work lists, reads as follows:

        The Carrier shall establish two (2) spare work lists for each division. The spare work list territories will be of approximately the same size. All furloughed roster-rated Trackmen who make written request within (10) days from being furloughed may sign up for spare work and shall have the option of signing up for either or both Division spare work lists on the division on which they hold seniority.

In correspondence on the property and on its submission, Carrier made several arguments in relation to the headquarters it establishes and to its obligation to pay away-from-home expenses:

        (1)...the selection of spare work list by laid off employees, in effect, establishes a headquarters point for each individual. Thus, management's obligation to assign a headquarters point for each man is negated by the man's decision to go on a specific spare work board or boards.

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        (2) The only time that lodging is furnished to a

        spare man is when the vacancy he is filling is in a

        crew headquartered in outfit cars. In all other cases,

        no lodging is available or furnished. The nature of

        their service does not require them to be away from

        home during the week. If they are away from home

        during the week, that is their option. By signing

        up on the spare work list, employees are indicating

        that they are willing to take any work and meals

        and lodging are not a prerequisite.


        (3) In addition, employees in a furloughed status

        elected a spare work list location within each division.

        This selection established a region in which to perform

        spare work and to be called for same. Employees so

        called to work spare within the elected territory are

        not required to "live away from home" as contemplated in

        Rule 35. Since the spare employees could elect where

        they worked, outfit cars or daily away-from-home expenses

        were not required. They were not "away-from-home" and

        cannot demand such expenses. By their willingness to

        sign up to work in a specific territory these away-from

        home expenses do not apply.


This Board does not agree with Carrier's statement that "Management's obligation to assign a headquarters point for each man [working spare] is negated by the man's decision to go on a specific spare work board or boards." The fact that Carrier gives these employes the option of selecting one of two headquarters does not relieve it of the obligation to establish a headquarters.
 Carrier's statement that "the only time that lodging is furnished to a spare man is when the vacancy he is filling is in a crew headquartered in outfit cars" is not supported by Award No. 298. That Award provides that "When employees [including employees filling relief assignments or performing extra or temporary service -- and not
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living away from home in camp cars, etc.] are unable to return to their headquarters point on any day they shall be reimbursed for the actual reasonable cost of meals and lodging away from their headquarters point ...." Carrier at no time indicated that this requirement was ever abrogated. From this language, we cannot conclude that "By signing up on the spare work list, employees are indicating that they are willing to take any work and meals and lodging are not a prerequisite." Nor can we assume that "By their willingness to sign up to work in a specific territory these away-from-home expenses do not apply." For employes to give up such a basic contractual right by electing 'a specific territory, it would be necessary for there to be an express agreement to that effect. We find no such agreement.
 Thus, we must conclude that the Organization's claim in this instance has merit and we so award:

                        AWARD


              Claim sustained. Claim satisfied with the payment of $21.75 per day plus 20 minutes per day per Claimant.


                  C


                C. H. Gold (_!e tral Chairman


B. L. Peters', Carrier Member W. E. LaRue, Employe Member

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 Dat of option