Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10964
SECOND DIVISION Docket No. 10809
2-A&S-CM-'86
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
(Brotherhood Railway Carmen of the United States
( and Canada
Parties to Dispute:
(The Alton and Southern Railway Company
Dispute: Claim of Employes:
1. That at East St. Louis, Illinois, the shifts with lunch period of
thirty (30) minutes which ends at 4:30 P.M., are not authorized by the current
agreement.
2. That accordingly, the Carrier be ordered to restore all shifts
on the eight (8) consecutive hour basis including allowance of 20 minutes for
lunch, which existed prior to November 21, 1983.
FINDINGS:
The Second Division of the Adjustment Board, upon the whole record
and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon..
On November 10, 1983, the Carrier abolished all Rip Track jobs effective November 21, 1983. That same day, the abolished jobs were put up for bid
with hours of 8:00 A.M. to 4:30 P.M., and an unpaid lunch from 12:30 P.M. to
1:00 P.M. The hours for the abolished jobs were 7:00 A.M. to 3:00 P.M. with a
paid twenty minute lunch. Prior to making this unilateral change, the Carrier's Mechanical Supervisor, K. E. Kelley, discussed the proposed changes on
March 22, 1983. According to Kelley, he was told he would have to serve a
Section 6 Notice because he was changing the Agreement. On September 29,
1983, the General Chairman met with the Carrier's Labor Relations Department
and discussed the proposed lunch period. No Agreement was forthcoming.
Apparently, Carmen are assigned to work the repair track only on the first
shift.
Form 1 Award No. 10964
Page 2 Docket No. 10809
2-A&S-CM-'86
It is undisputed the 7:00 A.M. to 3:00 P.M. shift for the Rip Track rr~"
has been in effect for over thirty years. Citing Rule 2, which covers a one
shift situation, the Organization points out the changes were made in the
absence of any Agreement.
In support of its position, the Organization refers to Second Division Award 6480 which dealt with a similar dispute. The sustaining Award said:
"Implicit in Rule 2 is the requirement that changes
in shift hours, lunch periods, and related matters
would be by mutual agreement. It is basic that the
Organization may not arbitrarily, capriciously or
unreasonably withhold its agreement to a change.
Carrier asserts that the change was made to meet
its operational needs. However, it presents
nothing in the form of probative evidence to
support this allegation and we have consistently
held that 'saying so does not make it so.' We are
in no position, based upon this record, to hold
that the organization's refusal to agree to the
changes introduced by the Carrier was arbitrary,
capricious or unreasonable. It is quite evident
that the cited Rules seek to limit changes in work
schedules of employes. If Carrier's view were
sustained, it could unilaterally revise hours of
work at will at any time and as many times as it is
wished with or without reasons. This is not
consonant with the spirit of the Rules."
Rule 2 reads as follows:
"When one shift is employed, the starting time
shall not be earlier than 7:00 A.M. nor later than
8:00 A.M. The time and length of the lunch period
shall be subject to mutual agreement with the
committee."
The Organization contends the standards for a three shift operation
had been in effect for many years covering all crafts. It asserts that suddenly the Carrier singled out one craft and changed the assigned hours to
include a thirty minute unpaid lunch period without reaching an Agreement with
the Committee.
The language covering multiple shifts is covered by Rule 3. It is
clear and unambiguous language which provides for a shift of consecutive hours
and a twenty minute (free) lunch allowance. Likewise, Rule 2 is equally clear
and unambiguous. No Agreement is necessary to change the starting times to
conform with the provision that the starting time shall not be earlier than
7:00 A.M. or later than 8:00 A.M. Mutual Agreement is limited to "the time
and length of the lunch period." This latter condition was not met. Past
practice has no role in the face of clear and unambiguous language.
Form 1 Award No. 10964
Page 3 Docket No. 10809
2-A&S-CM-'86
The Organization cited Award 6480, supra. We note that Award indicated an Organization may not arbitrarily, capriciously or unreasonably
withhold its Agreement to change. Herein, it is undisputed the Carrier's
operation has shrunk to one shift. Having done so, it is not bound by any
Agreement provision to continue scheduling under Rule 3. Rule 2 specifically
governs one shift operations. The failure of the Organization to mutually
agree to the time and length of the lunch period from March 22, 1983, to
November 9, 1983, is, under the record herein, nothing short of arbitrary.
Rule 2 clearly provides for the change in hours. Failure to achieve mutual
Agreement over the timing and length of the lunch period cannot be converted
into a power of veto. See Second Division Award 6691. Based upon this
analysis, we will deny this Claim.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest:
4~
Nancy J.
.OF-
Executive Secretary
Dated at Chicago, Illinois, this 27th day of August 1986.
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