THE DELAWARE, LACKAWANNA AND WESTERN
RAILROAD COMPANY
STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on The Delaware, Lackawanna and Western Railroad Company that D. W. Rothery, or any others who occupied the position of Ticket Agent at Watsessing Avenue. New Jersey-a one-shift office-between July 2, 1941, and October 17, 1943, inclusive. be paid one hour at pro rata rate for each working day served in the position during the period named account not being accorded a meal hour in accordance with Rule 6 of the Telegraphers' Agreement.
EMPLOYES' STATEMENT OF FACTS: There is in effect and in evidence an agreement, bearing effective date of May 1, 1940, between The Order of Railroad Telegraphers and The Delaware, Lackawanna and Western Railrozo Company (hereinafter referred to, respectively, as the organization and the Carrier) ; copies of which are on file with the National Railroad Adjustment Board.
The present rate is 88c an hour, pursuant to the national wage agreements of 1941 and 1943.
On August 24, 1943, the Organization's local representative, who works a regular position and who does not have too much time to police hours of assignment, learned the week-day assignment at Watsessing Avenue, a one-shift office, was 5:30 A. M. to 2:00 P. M., one-half hour for lunch; this in spite of the provisions of Rule 6 of the Telegraphers Agreement. The local representative immediately, or on August 24, 1943, called the attention of his Superintendent to the improper assignment, or at least to the improper payments made for the meal hour worked. The last paragraph of the letter to the Superintendent reads:
"Employes should not permit an employer to continue in the belief that the agreement has been complied with and then after a long lapse of time enter a claim for accummulation of pay."
Here two Local Chairmen, who worked the job themselves, concurred in the "practical construction of the working agreement by conduct" for over three years. This estops the Organization.
"The Organization stands in no higher position with respect to the claim than does the person on whose behalf it is filed."
There can be no doubt in view of the foregoing principle that the employes concurred in the Carrier's construction of the agreement.
This Board has sp~,ken so conclusively on the subject that we need only repeat its language. In Award 2593 it said:
"Nor do we think a penalty should be imposed on the Carrier by reason of assigning a claimant a lunch hour contrary to the provisions of Rule 40. That lunch hour had been assigned to the claimant loam prior to the effecting date of the controlling agreement. And through inadvertence on the part of the Carrier and acquiescence on the part of the claimant was continued in effect until this controversv arose. AS soon as the violation was called to the Carrier's attention claimant was assigned a hmch hour in accordance with the provisions of Rule 40. Under the circumstances we decline to invoke a penalty against the Carrier."
Since there was no violation of the agreement, and even if there was the acquiescence of the claimant precludes an affirmative award, the claim should be denied.
OPINION OF BOARD: This cl"im is for pay, at pro rata rate, for one hour each day that the Ticket Agent at Watsessing Avenue, New Tersev. was not allowed a meal period (sixty consecutive minutes) between four (4) hours and thirty (30) minutes and six (6) hours and thirty (30) minutes after starting work, in accordance with the provisions of Rule 6 (a).
Based on the facts and circumstances of this case, the claim should be sustained for the period August 24, 1943, to October 18, 1943.
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; 2913-6 5,33