NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood:
EMPLOYES' STATEMENT OF FACTS: In September, 1948, the Carrier increased the deductions made for meals served to employes assigned to Extra and Floating Gangs. These increased deductions are still in effect.
A claim was filed in behalf of the above referred to employes who have had deductions made from their rates in excess of the deductions that were previously in effect, wherein it was requested that they be reimbursed for the difference between the amount they should have received and the amount they have received since the deductions were increased.
The Carrier made wage agreements with the Brotherhood of Maintenance of Way Employes in 1941, 1946, 1947, and 1949. These wage agreements are by reference made a part of this Statement of Facts.
The Agreement in effect between the two parties to this dispute dated September 1, 1949 and subsequent amendments and interpretations are by reference made a part of this Statement of Facts.
POSITION OF EMPLOYES: The Fair Labor Standards Act of 1938 set a wage rate of thirty-six cents per hour as the minimum wage for the Railroad industry. In meeting that minimum the Carriers were entitled to the benefits of Section 3 (m) of the Fair Labor Standards Act, which section allowed as a portion of wages paid, the reasonable cost, as determined by the administration, of furnishing board, lodging, and other facilities, if such facilities were customarily furnished by the Carrier. For your ready reference we quote Section 3 (m) of the Fair Labor Standards Act:
Carrier certifies that all matters referred to in its submission have been made a part of negotiations for settlement of the dispute on the property.
OPINION OF BOARD: It is asserted by the Organization that the terms of the effective Agreement have been violated by the Carrier when increased deductions were made for meals served members of extra gang crews. Restitution of the amounts so deducted that are in excess of those in effect on August 31, 1941, is sought.
It is contended by the Organization that the National Mediation Agreement took into account Section 3 (m) of the Fair Labor Standards Act of 1938 and in relation thereto provided as follows:
and that the parties hereto did, by mutual agreement, place a provision in all subsequent contracts that had the effect of freezing the amount so deducted.
It is further contended that the above contractual provision clearly places a limitation on the amounts to be deducted; and that such sum can only be increased by negotiation and agreement.
The Organization cites that Awards 4141 and 4337 properly sustain the principle that charges or deductions once agreed upon and pegged at a certain level can not later, by unilateral action, be increased by one of the parties to the Agreement.
The Respondent explained that meals were provided the Employes in question by a "third party contractor" (Unaka Stores, Inc.), that the Employes were in no way obligated to trade with the said Company (other than to advise when meals were not desired) and that the Carrier made no deductions for meals except when presented with a properly executed authorization.
It was further asserted that Section 3(m) of the Fair Labor Standards Act was not here at issue since the wages paid did not include the reasonable cost of furnishing meals, the same never having in the past been furnished to employes.
There is no evidence of record that the Respondent ever furnished meals to employes here concerned. The basis of Award 4141 was that this Carrier had agreed to furnish housing to its employes and had by contract limited the amount it could charge therefor. While the award in that instance was in all respects proper, it can not be applied in this docket since the Carrier has not either by custom, practice or contractual provision placed itself in the position of agreeing to pay for, or furnish meals. The Respondent has, however, by contract agreed to furnish a cook to extra gang crews when composed of six or more men. 5714-8 159
Needless to say the salary of a cook was an integral part of the cost of meals furnished by the Unaka Stores, Inc., that was by contract provision, to be borne by the Carrier.
The record indicates that the Organization protested this practice and demanded compliance with the contract on June 12, 1950.
Members of Extra Gang Crews when affected by the failure of the Respondent to furnish a cook as provided in Article 9(c) are entitled to reparations in the amount of the salary paid the cooks by the Unaka Stores, Inc., on a pro rata basis, from June 12, 1950.
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;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and