PUBLIC LAW BOARD NO. 4768
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
BURLINGTON NORTHERN RAILWAY COMPANY
AWARD NO. 32
Carrier File No. MWA 89-06-15
Organization File No. C-89-0020-8
STATEMENT OF CLAIM
1. The Agreement was violated when Machine Operator
G. L. Reed was instructed to work away from his assigned
headquarters for an extended period of time and required
to report for duty and end his work day at Aalberg,
Missouri instead of Chillicothe, Missouri beginning on
February 22, 1989 and continuing.
2. Claimant G. L. Reed shall be allowed one and
one-half hours (1.5) pay at his time and one-half rate
for each work day beginning on February 22, 1989 until
the violation ceases.
F I N D I N G S
The applicable rule in this dispute is Rule 26, which reads as
follows:
RULE 26: STARTING POINT
A. Time of employes will start and end at designated
assembling point. Designated assembling or starting
point will be interpreted as follows:
(1) Section Forces - Tool House.
(2) Employes who are provided with outfit cars or
highway trailers, the assembling point shall be the tool
or material car provided such employes. If a tool or
material car is not furnished, or is located away from
the outfit cars or highway trailers, the assembling point
shall be the location of the outfit cars or highway
trailers.
(3) Employes under the provisions of Rule 38 who are
not furnished outfit cars or highway trailers, the
assembling point shall be the station on the Carrier
closest to the work location where meals and lodging are
available within a reasonable proximity; however, where
the majority of the members of the gang and the
supervisor agree, any point may be designated as the
assembling point.
(4) Employes authorized to provide their own living
quarters in trailer home or pickup camper - the assembly
point will be a place such as Carrier railroad station,
section headquarters B&B headquarters, tool house or gang
tool cars on a siding in a city or town close to the work
site.
(5) Employes in terminals or fixed headquarters -
Employes other than those covered above will have one
designated assembling point where they will start and end
their day's work, except that in Chicago and St. Louis
Terminals there may not be more than two such assembling
points designated for each gang.
B. When employes are sent away from headquarters and
remain away over night, the beginning and ending of day's
work shall be at a designated point such as a railroad
depot, section headquarters or motel-hotel accommodations
at the nearest town where such lodging and meal
accommodations are available.
The Claimant is a Machine operator with fixed headquarters at
Galesburg, Illinois. Beginning February 22, 1989 and for some time
thereafter, he was assigned to work at Aalberg, Missouri, requiring
him to secure lodging and meal accommodations. He did so at
Chillicothe, approximately 30 miles from Aalberg. (The Carrier
contends that there are also accommodations at Carrolton, which is
15.6 miles from Aalberg.) The Claimant was required to begin and
end his work day at Aalberg and thus did not receive pay for time
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spent traveling to and from his motel. The organization claims he
is entitled to begin and end his work day (and thus be in pay
status) at his accommodations.
It is not disputed that Aalberg is a section headquarters and
that there are no lodging and meal accommodations there. The
Carrier and the Organization agree that Rule 26.B. is applicable to
these circumstances.
In brief, the organization contends that the phrase "where
such lodging and meal accommodations are available" applies to each
of the three choices, i.e., railroad depot, section headquarters or
accommodations. The Carrier argues that the qualifying phrase
applies only to the accommodations portion; that is, the Carrier
may select any of the three options, in this instance the section
headquarters.
Both parties have provided accounts of varying practice in
this regard. The Board finds, however, that the rule is
sufficiently clear to determine there is no merit in the claim.
The key to Rule 26.B is the use of the word "such". The logical
and inevitable reading is that the phrase "such
accommodations" has as its antecedent "motel-hotel accommodations
at the nearest town". Rule 26.B simply cannot be read to insure
that an affected employee need not be required to travel some
minimum distance to begin the day's work.
Reference to other portions of Rule 26, as well as to other
related rules, demonstrates that the parties to the Agreement
deliberately made varying arrangements as to reporting times for
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employees under differing circumstances. Note, for example, the
quite different arrangement in Rule 26.A(3). Thus, the language of
Rule 26.B must be taken exactly as written, without providing
additional benefit.
A W A R D
Claim denied.
HEB L. MARX, Jr, Chairman and Neutral Member
/
I
-.u .,, -.--,.
MARK
SCHAP AUGH~, Employee Member
D. MERRELL, arrier Member
NEW YORK, NY
DATED: ~ /0,-
V
EMPLOYE MEMBER DISSENT TO AWARD 32 OF
PUBLIC LAW BOARD No. 4768
(Referee H.L. Marx)
This claim involved the interpretation of Rule 26B, which
reads:
"B. When employes are sent away from headquarters and remain
away over night, the beginning and ending of day's work shall
be at a designated point such as a railroad depot, section
headquarters or motel-hotel accommodations at the nearest town
where such lodging and meal accommodations are available."
In denying the Organization's claim the Majority held that:
"Both parties have provided accounts of varying practice
in this regard. The Board finds, however, that the rule is
sufficiently clear to determine there is no merit in the
claim. The key to Rule 26.B is the use of the word 'such'.
The logical and inevitable reading is that the phrase
'such ...accommodations' has as its antecedent 'motel-hotel
accommodations at the nearest town'. Rule 26.B simply cannot
be read to insure that an affected employee need not be
required to travel some minimum distance to begin the day's
work."
The organization does not take issue with the Board's
determination that the phrase "motel-hotel accommodations at the
nearest town" is antecedent of the phrase "such ...accommodations",
however, that does not defeat our claim. To the contrary, if the
parties did not intend the phrase "where such lodging and meal
accommodations are available" to also apply to "railroad depot" and
"section headquarters", then the very writing of that eight (8)
word phrase would have been redundant. That is, if the phrase
"where such lodging and meal accommodations are available" did NDT
qualify "railroad depot" and "section headquarters" and instead
only contemplated "motel-hotel accommodations", then there would
have been absolutely no need to have written that qualifying
phrase. Obviously, if the carrier -designates motel-hotel
accommodations in the town that was nearest, then it was a given
that the town had motel-hotel accommodations, i.e., the Carrier
could not designate motel-hotel accommodations if none were
available. The bottom line is that if the true intent of the
parties was to allow the Carrier to designate a railroad depot, a
section headquarters or motel-hotel accommodations without
requiring the depot or section headquarters to be in a town with
motel-hotel accommodations, then the last eight words of Rule 26B
should have been omitted.
Lastly, not only was this claim supported by the clear
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language of Rule 26B, during the handling on the property the
organization presented forty-three (43) written statements from
Carrier employes indicating the consistent interpretation and
application of Rule 26B in the manner described by the
organization. Typical of such statements was the one authored by
employe D. H. Bradley, a portion of which reads:
"***whenever I was taken away from my headquarters point
overnight I would begin and end my day at a section house or
depot in the same town where the lodging and meals were
located. If there was no section house or depot in that town
I began and ended my day at the motel where I was staying."
The Carrier could muster but a single written statement in an
attempt to counter the evidence presented by the organization.
A plain and objective reading of the agreement language as
well as consideration of the past practice evidence supports a
finding in favor of the Organization. For the above reasons this
decision is erroneous and is of no precedential value. Therefore,
I respectfully dissent,
M rk Schapp h
47Emplo Employe Member-PLB 4768
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