J
DISSENT TO AWARD NO. 15
SPECIAL BOARD Or ADJUSTMENT N0. 353
5
The Opinion of the majority in this case states:
"The rule is clear and unambiguous and it is
not necessary to rely on past practice
to interpret it. Repeated violation of a'
rule, even if acquiesced to by parties,
cannot modify an agreement."
The provisions in dispute were portion of National agreement reading:
"Free transportation for necessary travel
in providing relief will be made available
to relief employees." (Emphasis supplied)
(Agreement of July 13, 1945, retained under
Section 3(g) of Agreement March 19, 1949)
which left to the parties on the
individual carriers
the determination as to what constituted "necessary travel". On this property
relief work had been performed by extra telegrapher who did not receive expenses while away from home nor receive pay for deadheading,
and who did not receive allowance for transportation except when
train service not available on the initial trip to a job and the
final trip after being relieved from the job. It was understood
for employes occupying regular rest day relief assignments requiring work at different stations the "necessary travel" would be that
required to move from one station to another as required by the
assignment, and that free transportation would be provided for such
travel. It was agreed that when the use of train service would
result in a long layover waiting to begin work after arrival at a
station or waiting for train in moving to a different location in
the assignment and such long layover could be avoided by use of bus
or privately owned automobile, the Carrier would reimburse the
regular relief employe for bus transportation or pay automobile
mileage. The agreement provided this automobile allowance was to
be made under such circumstances
* in moving from one station to another, within the
assignment* *."
Nothing in the National agreement nor the implementing
agreement provided that the employe was entitled to return to
headquarters each night. The general chairman,agreed the employe'
f:
4 .
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did not have that right, as evidenced by letters presented to the
Board. While the general chairman changed his position some three
years later and handled claims, he did not progress claims after
they were denied, thus
recognizing that
the agreement reached was
binding.
Now, more than 20 years after the agreement as to transportation was reached on the property, it is held that the general
chairman misinterpreted the National rule, said to be "clear and
unambiguous."
The words "necessary travel" manifestly are not clear and
unambiguous. It would have been easy to state that a "home station"
would be designated and an employe would be entitled to return to
his home station each day and to receive free transportation for
such travel, if such had been the intent. But the rule left to the
parties on individual roads the matter of what would constitute
"nec,essary travel" under rules and conditions in effect on each
road. The agreements reached on the individual roads thus were
implementing agreements and not "interpretations" of the National
agreement.
The Opinion cites with approval a decision by another
referee in Third-Division Award 4305. There the parties added a
paragraph to the National rule. The referee gave weight to this
paragraph but held that it was not inconsistent with the claim
filed. In the present case it is quite clear from the general
chairman's own words and actions that the agreement reached on this
property regarding necessary travel is inconsistent with the present
claim. Presumably if the referee in Award 4305 had been passing
on similar evidence he would have found such agreement binding and
denied the claim. His opinion does not indicate any thought that
the general chairman was without authority to reach an agreement on
1'necessary travel", which, in effect is the decision here.
Section 7 of the agreement establishing the-present Board
provides:
"The Board shall not have jurisdiction of dispute&-""°~
growing out of requests for changes in rates of ay, -`~r-"~
rules and working
conditions and
shall not have
authority to change existing agreements nor to `cant:
new rules."
In my opinion the agreement reached on the property_~`
governed, and that the award is erroneous.
a
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V0
V.
M.
L. Erwin; Carrier Member