Claim of the System Committee of the Brotherhood that:
1. The Agreement was violated when the Carrier failed and refused to pay "on-line" employe D. Ortiz the per diem allowance, pursuant to Rule 36, for October 9, 10, 11, 12, 13, 14 and 15, 2005. (System File MW-0606 / 1436868 MPR).
2. As a consequence of the violations referred to in Part (1) above, Claimant D. Ortiz shall now be paid the per diem allowance for October 9, 10, 11, 12, 13, 14 and 15, 2005.
Claimant was assigned to System Gang 9112 which worked an alternate work schedule. On September 30, 2005, Claimant was awarded a position on System Gang 9293, which also worked a alternate work scheduled. As allowed by the Agreement, Claimant was temporarily held over for on System Gang 9112. Claimant then worked all of
the workdays for the first work period of October 2005 with Gang 9112, his last day being October 8, 2005.
Claimant was instructed to report for training duty on October 16, 2005 on his new assignment on System Gang 9293. Claimant did so.
The record reveals that at the time this dispute arose, the alternate work schedules worked by Gangs 9112 and 9293 had the same work cycle start dates. Thus, when Claimant reported to Gang 9293 on October 16, 2005 to begin his new assignment, Gang 9112 was also starting its work cycle.
The parties agree that the facts in this case are similar to those in Awards 3 and 4 of this Board. Therefore, it is fair to conclude that not only did Gangs 9112 and 9223 have the same work cycle start dates, they also had the same rest days. That being the case - i,e., that the gang from which Claimant
PLB 7156, Award 5
D. Ortiz
Page 2
.. voluntarily absent from service when work is available to him on the workday immediately preceding or ... following such rest days ...." Aside from the fact that Claimant's assignment to Gang 9166 was not 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 36tb)t2) 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 36fb)(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. And as we
found in Award 4 due to the identical work and rest days of the two
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:
T. W. kreke
Organization Member
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