PUBLIC LAW BOARD No. 4381: CASE No. 7
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES

 v.

 BURLINGTON NORTHERN RAILROAD

1. The Carrier violated the Agreement when it failed to properly compensate
 Grinder Operators J. R. Puhak and J. D. Meacham for wage loss suffered
 as the result of being improperly withheld from service from November 7, 1985
 until November 22, 1985 and November 7, 1985 until November 27, 1985,
 respectively.

3. As a result of the above-described violations:





The Claimants, Mr. Jack R. Puhak and Mr. Joey D. Meacham, were removed from service on November 6, 1985, pending completion of an investigation. However, due to defects in Cho investigation procedure, Mr. Pubsk and Mr. Meacham were restored to service, as of November 22, 1985. Mr. Pubak returned to work an November 22, 1985 and Mr. Meacham returned on November 27, 1985.
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    Both men were returned to service under terms of Rule 40G which states:


      "If it is found that an employe has been unjustly disciplined or dismissed, such discipline shall be sec aside and removed from the record. He shall be reinstated with his seniority rights unimpaired, and be compensated for wage loss, if any, suffered by him, resulting from such discipline or suspension."


The main issue in dispute between the parties is the meaning of "wage loss." The Carrier contends that "wage" is limited to only straight time wage races. The Organization contends that the meal and lodging allowance provided for in Rule 38G and the mileage reimbursement provided for is Rule 353 are also properly a part of the "wage loss" restitution.
The overall purpose of Rule 40G is clear, and represents a traditional remedy in collective bargaining where an employee has been unjustly disciplined or dismissed. The disciplinary action is rescinded. the employe's personnel record cleared, the employs restored to his former position with unimpaired seniority, and made whole for lost wages. To do less than make the employs fully whole. would be to penalize the employs where no loss is warranted or justified. In the context of Rule 40G, the words "wage loss" are ambiguous and can only be given applicable meaning within the overall purpose of Rule 40G.

 The Organization persuasively argues that the meal and lodging allowance is uniquely linked to wage rates. An employe assigned to a position subject to per dies payment per Rule 38 (applicable to Mr. Puhek and Mr. Meacham) receives such payment without regard to actual expenses incurred. Moreover, this allowance is paid "... for each day of the calendar week, including rest days and holidays... except when the employe is voluntarily absent" , (emphasis added). Clearly, an employe is a designated position, who is available for scheduled work, is paid both the applicable wage rate and the Rule 38 allowance. To fairly and fully provide restitution for Mr. Puhek and Mr. Meacham, they must be paid the money due them under Rule 38.

 While there is a veil established principle in collective bargaining for wage restitution when an employs is made whole for rescinded discipline, the treatment of overtime pay is far from settled. In the absence of evidence that the Carrier and the Organization intended to include overtime pay in a make whole situation, this Board will not so order.

 During the period of their removal from service, Mr. Puhsk and Mr. Meacham were ordered by the Carrier to travel to meet with the Carrier's Superintendent at his office in Spokane. Washington. The Claimants had to use their personal vehicles. This travel was directly related to the rescinded disciplinary action, therefore, the Claimants should be reimbursed in accordance with Rule 353.

 Finally, the Claimants were restored to service as of November 22, 1985. Mr. Puhek returned to work on that date; Mr. Meacham did not report until November 27th. The Organization has provided no convincing reason why Mr. Meacham should be compensated (including the Rule 38 allowance) for the period of November 22nd to November 27th.
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                      AWARD


Mr. Jack R. Puhek and Mr. Joey D. Meacham shall be paid their regular, straight-time wage rate and applicable Rule 38 allowance for the period of November 6, 1985 to November 22, 1985. Mr. Puhek and Mr. Meacham are to be reimbursed in accordance with Rule 35B for travel between Libby, Montana and Spokane, Washington.

              Ronald L. Miller

              Chairman and Neutral Member


Maxima M. Timbetman Karl P. Kau an
 Carrier Member X ;Organization Member

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                      Date