General Chairman Harper refers to allowances to be made to a yard fireman. The Firemen's Agreement contains the following provision:

This rule specifically provides that if the lunch time is not completed between the 4s/z and 6th hour after starting work, firemen will be paid twenty minutes pro rata in addition to the eight hours. The point the carrier is endeavoring to make is that where payment is required, it is specifically provided for by agreement. The distinction with respect to the requirement of paying for meal time is obvious in reading Rules 28 and 29, one of which clearly states that if the meal period is not afforded within the agreed-upon time limit and is worked it shall be paid for at the pro rata rate. Under the Telegrapbers' Agreement, on a shift of eight consecutive hours, no allowance is made for meals. In the Clerks' Agreement provision is made that not to exceed twenty minutes shall be allowed in which to eat without deduction in pay, when the work permits. There is no provision whatever made for paying twenty minutes pro rata when the nature of the work does not permit or the employe, in his own discretion, decides not to eat his lunch when the nature of the work does permit it.

As to how, when and where the meal is to be taken, the following from the Opinion of the Board in Award 2446 of this Division is of interest:

In discussing this case in conference, reference was made to Award 1590 of this Division. In that case Rule 40, as quoted in the Position of the Employes, provides that the twenty minutes shall be allowed between the end of the fourth and sixth hour after starting time, with due regard for the requirements of the position. There is no such provision in Rule 29 of the Clerks' Agreement in effect on these lines. Our rule simply provides that they will be allowed twenty minutes in which to eat without deduction in pay when the nature of the work permits. The claim in that case was that Chief Yard Clerk should be paid one hour overtime until he was assigned eight consecutive hours without a meal period and it was denied.

There is no rule in the current agreement that provides for payment claimed in this case.

CONCLUSION: The carrier has shown that the claim has not been handled in the usual manner, as required by the amended Railway Labor Act and the rules of the agreement and should therefore be dismissed. Without prejudice to its position in that respect, the carrier has also conclusively established the fact that the alleged claim is entirely without merit and if not dismissed in toto, should be denied.

OPINION OF BOARD: Carrier raises a ,jurisdictional question but in its final submission to the Board this is waived and the Carrier states:

The sole question now before the Board pertains to the Interpretation and application of Rule 29, which reads:

There is no dispute in the facts. Clerk Bartee was assigned under Rule 29 to a position requiring continuous operation, with assigned hours 12:00 midnight to 8:00 A. M., 8 consecutive hours without meal period.

It is the contention of the Carrier that since Rule 29 did not contain a provision to receive additional compensation in the event he was not afforded 20 minutes in which to eat at some period between 12:00 midnight and 8:00 A. M. the claim cannot be allowed. With this contention we do not agree. The rule clearly provides for an allowance of 20 minutes. It is contained in the Contract between the Carrier and Employes. It is a contract right resulting from the negotiations of the parties. Where an employe sustains a loss by reason of a violation of the agreement, he must be compensated for such loss, even though no specific penalty is imposed by the rule violated. To hold otherwise would mean that agreements could be disregarded at any time. If agreements ate to be effective, the guilty party violating the contract must be penalized. In this case, the Contract gave the Employe 20 minutes in which to eat his lunch. He, being deprived of this by the Carrier, would be entitled to compensation for the 20 minutes given to him by the Contract, which he did not receive.

The second proposition that the Carrier raises is that the rule does not provide that 20 minutes shall be allowed in which to eat without deduction in pay "when the nature of the work does not permit." In other words, if the nature of the work on any particular day prevents the taking of the 20 minutes for meal period, no additional compensation is due the employe unless be is required to work in excess of 8 hours. With this we do not agree. This Division is of the opinion that the clause "when the nature of the work permits" gives to the carrier the right to designate the meal period at any time during the 8-hour shift "when the nature of the work will permit." In other words, the meal period does not have to be assigned at any particular time and the carrier is given the right to assign it at any time during the 8 hours.

The Carrier cites certain awards. We have reviewed all of them. We have no fault to find with Award No. 2446, wherein this Board said:

In Award No. 2446 there was an assigned meal period, while in the case at bar there was no assigned meal period.

This Division is of the opinion that as the Carrier failed to comply with Rule 29, an affirmative award is justified.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the carrier and the employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division