Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when the Carrier failed and refused to allow "on-line" employe L. Phillips the per diem allowance, pursuant to Rule 36, for June 9, 10, 11, 12, 13, 14 and 15, 2005. (System File MW-0589 / 1429531 MPR).
Claimant was assigned to OnLine B&B Gang 1238 which worked compressed work schedule. Claimant bid for and was assigned to the position of system bridgeman on System B&B Gang 9301, effective June 10, 2005. Gang 9301 also worked a compressed work scheduled. At the time this dispute arose, the two gangs were working the
same compressed work schedules with the same rest days.
Claimant worked on Gang 1238 until June 8, 2005; observed rest days on June 9, 10, 11, 12, 13, 14 and 15, 2005; and reported to his new assignment on Gang 9301 on June 16, 2005. This claim seeks per diem allowance for those rest days.
The principles set forth in Award 3 of this Board govern this case:
PLB 7156, Award 4
L. Phillips
Page 2
effective until March 18, 2005 - a date in the middle of both gangs' rest cycles - Claimant was not "... voluntarily absent from service ...' on the rest days in dispute because both gangs were observing the same rest days. Absent that condition, Rule 36(b)(2) clearly requires that "[t]he per diem allowance will be paid for each day ... including rest days ..." [emphasis added]. Given the identical work and rest cycles of the two gangs, Claimant was entitled to per diem allowance under the clear language of Rule 36(b)(2).
For reasons set forth in Award 3, the claim for per diem allowance has merit.
For similar reasons set forth in Award 3, the Carrier's arguments do not change the result. One argument raised by the Carrier in this case - as was raised in Award 3 - is the Carrier's contention that under Rule 17 the Carrier is not to incur additional expense as a result of an employee's exercise of seniority rights. As in Award 3, because the rest days of the two gangs were identical in this case, the Carrier will incur no additional expense due to Claimant's exercise of his seniority rights:
received per diem for rest days under Gang 9196's rest days. By paying Claimant per diem in this case, the Carrier is not incurring any additional per them expense due to Claimant's exercise of his seniority rights. This is not a case where the employee attempts to gain per diem payments as a result of the exercise of seniority rights by attempting to use rest days from a prior gang after transferring to another gang which is working. Compare Award 1 of this Board. This is a case where Claimant would have received per diem for the same days irrespective of the gang to which he was assigned. If anything, because of the identical schedules and the fact that the Carrier would have paid Claimant per diem for the rest days had he not bid from Gang 9196 to Gang 9166, by denying Claimant per diem in this case, the Carrier is, for all purposes, punishing Claimant for exercising his seniority rights.
Claimant shall be paid the per diem allowance for the rest days in dispute.
CARRIER MEMBER'S DISSENT
TO
AWARDS 3, 4 &5 OF PLB 7156
(Referee Benn)
These cases involve the interpretation of Rules 17 and 36(b)(2) of the Agreement effective July 1, 2000. The Organization had recently taken the position that their members were entitled to rest day per diem allowances when they voluntarily bid to another gang allegedly per the language of Rule 36(b)(2).
Our position was based upon a long documented and consistent practice of ending an employee's working relationship with a gang on the last day they performed service. Those employees did not receive any benefits between their old and new assignment until such time as they reported to the new gang. We also substantiated that Agreement Rule 17 emphatically stated there would be no additional cost to the Carrier from exercise of seniority rights. Conclusively, based on all the above, the Carrier was not obligated to bridge the per diem allowance in such exercises of seniority.
The Majority in these claims determined that the agreement language of Rule 36(b)(2) was applicable to seniority moves when the gangs had like rest days. While Rule 36(b)(2) addresses per diem over a rest day period, it does not imply that an employees assignment which has historically ended with the last day of service performed on an assignment is now extended to when they report to their new assignment when moving to another assignment. Contrary to the majority's decision, the agreement does not provide the "clear" or "specific" agreement language it finds with its interpretation and thus the approximate 25