NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Record also shows that claim stems from the erroneous contention of the Employes that at one shift offices a meal period must be assigned the same time each day; whereas, Rule 6 merely provides that the meal period will be allowed between 11:30 and 1:30 o'clock, day or night. Finally, the record shows that claimants were instructed to take a one-hour meal period "per schedule rule" and that a one-hour meal period was taken between 11:30 P. M. and 1:30 A. M. Rule 6 specifically provides that the penalty sought by the Employes is allowable only if the employe is not excused for the meal period between 11:30 and 1:30 o'clock, day or night. Neither the facts nor the rules support the Employes' claim and same should be denied.
Carrier affirms that all data in support of its position has been presented to the other party and made a part of the particular question in dispute.
OPINION OF BOARD: The issue is whether Rules 6(a) and 14(d) of the Agreement between Carrier and Telegraphers, effective June 1, 1948, require Carrier to assign fixed meal periods at one shift offices.
(a) (Meal Period) Where but one shift is worked employes shall be allowed sixty (60) consecutive minutes between 11:30 and 1:30 o'clock, day or night, for meal.
If not excused for the meal period as herein provided, the employe shall be paid one (1) hour at overtime rate and excused twenty (20) minutes with pay, in which to eat, at the first opportunity."
(d) (Classification - New Positions - Transfers - Filling Vacancies.) Vacancies and new positions will be bulletined on the first and fifteenth of each month (or more frequently if desirable) to all offices on the division on which they occur, and copies furnished to Local and General Chairman, and will show rates of pay and hours of assignment of positions bulletined and also the names of employes assigned to positions bulletined on the immediately preceding bulletin. . . :' (Emphasis ours.)
At Fort Dodge, Iowa, at all times material, Carrier had a seven (7) day position of telegrapher-clerk. Regularly assigned to this position, at least during the period from December 8, 1956 to January 22, 1957, was Claimant Daenzer; and, Claimant Judson was the regularly assigned relief. The parties are agreed that it is a one shift position bringing it within the applicability of Rule 6(a) of the Agreement.
Telegraphers contend that Rule 6(a) requires Carrier to assign to the occupant of the position a fixed lunch hour of sixty (60) consecutive minutes between 11:30 P. M. and 1:30 A. M.
Carrier contends that the Rule 6(a) permits it to direct the occupant of the position to take his lunch hour for any sixty (60) consecutive minutes 11367-19 196
between 11:30 P. M. and 1:30 A. M.; and, that Carrier can do this on a day 4;o day basis.
The case is one of first impression. This Board has not previously interpreted the rules here involved. Cases cited by Carrier are inapposite.
Before we discuss the case on its merits we must first dispose of Carrier's argument that the claim as filed with the Board is not that handled on the property.
The claim filed with the Board has two parts. That part numbered 1(a) and (b) alleges that in the period from "December 8, 1956 and subsequent dates through April 7, 1957" Claimants had assigned lunch periods during which they were required to work without being compensated in accordance with Rule 6(a); and, each Claimant should be compensated at "time and onehalf rate on each day the violation occurred during the period of time." The claim filed with the Carrier, on January 30, 1957, alleges as to Claimant Daenzer, that Rule 6(a) was violated on the following specific dates: December 8, 13, 15, 18, 19, 20, 1956 and January 10 and 22, 1957; and, as to Claimant Judson it was violated on December 16 and 17, 1956. As the claim filed with this Board is broader than but inclusive of the claim processed on the property we will not dismiss the claim. However, we will confine the claim to the dates specified in the claim initiated and processed by telegraphers on the property. 'To do otherwise would be beyond the jurisdiction of this Board.
The second part of the claim filed with this Board, numbered 2(a) and (b), concerns General Order No. 7, issued by Carrier on April 2, 1957, supplemented by a telegram dated April 3, 1957, which specified the hours of the telegrapher-clerk position, beginning April 8, 1957, as 8:45 P. M. to 5:45 A. M. "with one hour for lunch, as per schedule rule." Telegraphers aver that Carrier's failure to assign a fixed lunch period is a violation of Rule 6(a) and prays that Carrier be required "to compensate the occupant of the position for one hour at the time and one-half rate each day commencing April 8, 1957 and continuing thereafter until the violation is corrected." Telegraphers have not adduced proof, in the record, to support its claim for a monetary award under the second part of the claim. We will, therefore, limit our consideration of the second part to the issue as to whether the failure of Carrier to assign a fixed lunch period after April 7, 1957 violated the Agreement.
There can be no doubt that if Claimants had an assigned fixed lunch period from December 8, 1956 to and including January 22, 1957 and were required to work during such fixed period the contract was violated if they were not compensated as provided for in the second paragraph of Rule 6(a).
There is a conflict in the evidence as to whether the Claimants had an assigned fixed lunch period prior to April 8, 1957. Telegraphers assert that from the effective date of the Agreement (June 1, 1948) to April 8, 1957 the position as bulletined and by circular had an assigned fixed lunch period. Also, during the period of claimed violations the assigned hours were 7:00 P. M. to 12:30 A. M. and 1:30 A. M. to 4:00 A. 161. Carrier seeks to rebut by stating "Circular No. 38, dated October 24, 1956, last circular issued prior to period covered by Part 1 of claim (December 8, 19.56, through April 7, 1957) shows hours of assignment 8:30 P. M. to 5:30 A. M., 'one hour for lunch per schedule rule."' The Circular, if there was one, would have been the best evidence. Carrier failed to introduce it into the record. Due to this failure plus Carrier introducing no evidence that the position was in fact worked from 8:30 P. M. 11367-20 19;
to 5:30 A. M. after issuance of the Circular, without a fixed lunch period; and,, the fact that when Carrier issued General Order No. 7 on April 2, 1957, it set an assigned fixed lunch period for the position, we find that the position did have an assigned fixed lunch hour, from 12:30 A. M. to 1:30 A. M., in the period from December 8, 1956 to and including January 22, 1957. Inasmuch as Carrier does not deny that Claimants were required to work during the assigned fixed lunch hour on the dates designated in the claim processed on the property, we will sustain the claim as to those dates.
On April 2, 1957, Carrier issued General Order No. 7 in which it gave notice of change of the hours of the position here involved. The hours designated therein were 8:45 P. M. to 12:45 A. M. and 1:45 A. M. to 5:45 A. M. The assigned lunch hour obviously and admittedly violated Rule 6(a) which requires that the lunch hour be "between 11:30 and 1:30 o'clock, day or night"
On April 3, 1957, Carrier sent the following wire to the telegrapher-clerk at Fort Dodge:
It is this failure of Carrier to assign a fixed lunch period which Telegraphers claim to be a continuing violation of the contract.
It is well established that in interpreting a particular provision of an Agreement it must be done in the light of the Agreement as a whole.
While we are not here concerned with a vacancy or a new position this Rule is an aid to contract interpretation. It supports the conclusion that the Carrier must designate "hours of assignment of positions." This raises the question: What is the meaning of "hours of assignment"?
Carrier argues that it satisfies the Rule if it sets the beginning time and the termination time of the basic day (Rule 2) and reserves to itself the right to direct an employs as to when he will take his lunch hour, on a day to day basis, so long as it is between 11:30 and 1:30 o'clock (Rule 6(a)).
We do not agree. To us "hours of assignment" cannot be construed to connote any open-endedness. Therefore, it follows, that Carrier is obligated by the Agreement to assign to the position here involved a fixed lunch hour within the period of time agreed to in Rule 6(a). This is not to be construed as meaning that the lunch period has to be assigned for the same fixed hour on every working day. It can be fixed for an assigned different hour on different days provided the employes have proper notice. -
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
CARRIER MEMBERS' DISSENT TO AWARD 11367,
DOCKET TE-10479
* * *, and will show rates of pay and hours of assignment of positions bulletined and also the names of employes assigned * * *.
* * * Bulletin to show location, title, hours of service, and rate of pay.
"The bulletins in controversy did show hours of service as required by Rule 10 of the Agreement between the parties in the sense that they specifically designated the beginning and ending of the service period. It may, of course, be contended, as was contended by the employes, that this rule, standing alone, requires that bulletins of positions shall show nothing but service hours. Rule 10, however, does not stand alone; it must be read in connection with Rule 48, which provides that `when a meal period is allowed, it will be between the ending of the fourth and the beginning of the seventh hour after starting, unless otherwise agreed upon by the employes and employer.' This rule permits the carrier to indicate a meal period between the ending of the fourth and beginning of the seventh hours of a service period, but does not require him specifically to designate the period."
THIRD DIVISION
(Supplemental)
Interpretation No. 1 to Award No. 11367
Docket No. TE-10479
Upon application of the Carrier involved in the above Award, this Division was requested to interpret same because of an alleged dispute between the parties as to its meaning and application, as provided for in Section 3, First (m) of the Railway Labor Act.
The parties are in disagreement as to how much notice an employe must have before Carrier can effectuate a change in his assigned lunch hour.
Carrier's position is that the Award provides for "proper notice," and, since that phrase does not prescribe the period of time required from notice to effectuation, it is ambiguous. Each of the parties has asked this Division to set a time limitation but disagree as to what it should be.
Inasmuch as the Agreement prescribes no time limitation, if we did so we would be writing a new sole. It is well established that such an action is not within our powers. Therefore, we find that the requests of the parties is not within the contemplation of "interpretation" as that term is employed in Section 3 First (m) of the Act.
As to all other facts, issues, questions and arguments contained in the Request for Interpretation, we find they are not properly before us.
Referee John H. Dorsey, who sat with the Division, as a member, when Award No. 11367 was adopted, also participated with the Division in making this interpretation.