NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 6302
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES )
Case No. 6
UNION PACIFIC
STATEM
FINDINGS:
F NT OF CLAIM:
LRUAD COMPANY
Martin H. Malin, Chairman & Neutral Member
D. D. Bartholomay. Employee Member
D. A. Ring, Carrier Member
Hearing Date: May 12. ?OQO
Award No, 14
1. The Carrier violated the Agreement when it failed and refused to pay System
Gang 9011 employe T. L. Bogenreif the per diem allowance for on-line employes
on Saturday, February 4 and Sunday, February 5. 1995 (System file N
189/950438).
? As a consequence of the violation referred to in Part (l) above. Mr. T. L.
Bogenreif shall now be allowed the per diem allowance for February 4 and 5,
1995.
Public Law Board No. 6302, upon the whole record and all the evidence, finds and holds
that Employee and Carrier are employee and carrier within the meaning of the Railway Labor
Act, as amended; and, that the Board has jurisdiction over the dispute herein; and. that the parties
to the dispute were given due notice of the hearing thereon and did participate therein.
Claimant worked his regularly assigned schedule on Friday, February 3, 1995. Saturday
and Sunday, February 4 and 5, 1995, were his regularly assigned rest days. With Carrier's
agreement, Claimant took one day of vacation on Monday, February 6, 1995. He returned to
work on Tuesday, February 7. 1995. Carrier refused to pay Claimant the per diem allowance for
Saturday and Sunday, February 4 and 5, 1995. The parties disagree over the application of Rule
39(e), which provides, in relevant part:
;~ w r~ l t-I
Fmployes assigned with headquarters on-line, as referenced in Rule ?9, shall be
allowed a daily per diem allowance of $30.00 to help defray expenses for lodging. meals
and travel.
The foregoing per diem allowance shall be paid for each day of the calendar week,
including rest days, holidays and personal leave days, except it shall not be payable for
workdays on which the employe is voluntarily absent from service, or for rest days.
holidays or personal leave days when the employe is voluntarily absent from service
when work is available to him on the workday immediately preceding or the workday
immediately following said rest days, holidays or personal leave days . . . .
Rule 39(e) also references Appendix W-1. which provides. in relevant part:
(1) The language of Rule 39(e) indicating `the employe is voluntarily absent' means
the employe has failed to render compensated service on a workday on which
work was available to him;
(2) For Monday through Friday vacations. employes will be granted per diem
allowances for the weekend immediately preceding the start of the vacation period
and no other per diem allowance will apply or commence until the employe
returns to work.
The parties disagree over whether Claimant was voluntarily absent on Monday. February
6, 1995. They also disagree over whether paragraph (2) of Appendix W- I applies. With all due
respect to the parties, we find that the attempts to apply the language of Rule 39(e) and Appendix
W-I are not particularly helpful in resolving this dispute. This is because the dispute arises from
a situation that the Agreement clearly did not contemplate and, therefore, did not address
expressly.
At the time the claim arose, the Agreement did not provide for employees to take
vacation in anything less than a block of one week. Consequently. it is not surprising that the
Agreement. through Appendix W-I, expressly provides how to treat rest days immediately
before and immediately after Monday through Friday vacations. Employees receive their per
diem allowances for the weekend immediately prior to the vacation but not for the weekend
immediately following the vacation. It also is not surprising that the Agreement did not address
how to treat per diem allowances where an employee takes less than a full week of vacation
because such a situation simply did not exist under the Agreement.
Although the Agreement did not allow for one day vacations, the practice on the property
was to allow it. We are of the view that, because Claimant's ability to take a one day vacation
was dependent on the practice on the property, the treatment of per diem allowances where a one
day vacation is taken must also be governed by the practice on the property. During handling on
the property, Carrier maintained that the consistent practice was not to pay per diem allowances
for weekends preceding vacations of less than one full week. The Organization never denied the
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existence of such a practice. Although the Organization has argued that Carrier failed to present
evidence of the practice. Carrier was not required to do so in the absence of an Organization
denial of the practice's existence. Accordingly, we find that the practice governs this case and
that the claim must be denied.
AWARD
Claim denied.
fMartin H. Malin. Chairman
D. A. Ring, D. artholamay.
Carrier Member ~mplo ee Member
Dated at Chicago. Illinois, July 25, 2000.