NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-20766
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Northwestern Pacific Railroad Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it failed and refused
to compensate B&B Foreman H. J. Strock for the services he rendered during
his assigned meal periods on each work day* within the period beginning with
November 16, 1972 and extending through January 8, 1973 (System Files MofW
125-268 and MofW 125-270).
(2) B&B Foreman H. J. Strock now be allowed thirteen (13) hours'
pay at his straight-time rate because of the aforesaid violation.
*The work days of November 17, 21, 22, 23, December 8, 15, 19 and 28, 1972
and January 6, 1973 are excluded because payment was allowed for the services
rendered by the claimant during his meal periods on said dates.
OPINION OF BOARD: In this dispute, Petitioner asserts that Carrier violated
the Agreement when it refused to compensate Foreman H. J.
Strock for services rendered during his assigned meal periods on stated work
days. Compensation is demanded as detailed in the Statement of Claim.
Petitioner contends that under the Form "Y" train order then in
effect, the foreman was required to be on constant duty and to remain available; that Claimant's res
and, therefore, his meal period time must be considered compensable working
time under Rule 30 of the controlling agreement.
Conversely, Carrier urges that during such periods when "no train
could possibly be in the work area" Claimant had sufficient uninterrupted
time for his meal periods and that no compensation was warranted in these
circumstances. On this premise, Claimant was in fact compensated for meal
periods during other days when trains actually passed through the work area.
At the outset, we sustain Petitioner's procedural objection to our
consideration of various train schedules now submitted by Carrier for the
first time. These constitute new matter not presented during the processing
of this case on the property and, accordingly, will not be considered as
bearing on the merits of this dis?ute. Innumerable prior Awards of this
Board have consistently sustained this principle regarding inadmissibility
of "new matter".
Award Number 20914 Page 2
Docket Number MW-20766
See Awards 19101, 20064, 20121, 20255 and 20841 among a host of
others.
On the merits, we are conclusively persuaded by the reasoning and
conclusions in Award No. 18153 (Dugan). There, as here, a Foreman was involved who was required to r
as here, a specific "U Train order" was in effect (substantially similar to
the Form "Y" train order in this dispute), placing specific responsibility
upon the Foreman to ensure the safe passage of trains through the work area.
There, as here, periods were involved when "no trains passed through the
work area". Nevertheless, the claim was sustained.
Carrier contends, and properly so, that this Board's jurisdiction is
limited to interpretation of the Agreement as written, and in context; and
urges that Petitioner, in order to prevail, must establish a specific Bile in
violation. We agree, but must perforce point out that Rule 30 is precisely .
applicable to the instant dispute. Furthermore, that the language of Rule 30
is exactly the same as Rule 23 in Award 18153, supra.
We conclude, therefore, that the issue for adjudication here is on
all fours with that decided in Award 18153, as follows:
"Is the Claimant entitled to payment for working the noon
lunch period only when a train passes through his area on said
lunch period, or is he entitled to payment for said lunch period when a U Train Order is in effect a
through his area during said period?"
Additionally, the conclusion reached in the latter Award is directly
in point and fully applicable here:
"We believe that when a U Train Order is in effect, as in this instance, Claimant was required t
to avoid any unnecessary train delays and work with the dispatcher
and engineer of any through trains so as to insure the safe passage
of said trains trough the work area. Claimant was thus required to
perform service of a standby nature and in effect did perform service
regardless of the fact that no trains passed through his work area
on the dates in question during his noon lunch hour period."
To the same effect, albeit with varying factual situations, see
Awards 826, 1070, 1675, 2032, 2640, 10969 and 20369.
For further emphasis, see also:
Armour &Co. v. Wantock (U.S. Supreme Court, 323 U.S. 126) (1944).;
Skidmore v. Sift & Co. (U.S. Supreme Court, 323 U.S. 134) (1944).
Award Number 20914 Page 3
Docket Number MW-20766
Carrier urges the general proposition, citing precedent, that it
has the sole prerogative to make, change or interpret its own operating rules.
We agree with this concept in principle, provided the Agreement is not violated thereby. We cannot,
this dispute in the absence of some probative evidence indicating notice to
Claimant that he was relieved of the responsibilities initially imposed upon
him by the Form "Y" train order. In short, that he was not obliged to remain
on duty continuously during his meal period. Clearly, he had no authority to
make such determinatidn on his own, which in itself might conceivably subject
him to discipline.
Accordingly, based on the record evidence and controlling authority,
we find that Claimant was required to remain on duty during the meal periods
here in question and that such time falls within the compensable coverage of
Rule 30 as constituting time "if worked". We will therefore sustain the claim.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record
and all the evidence, finds and holds:
That the parties waived oral hearing;
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
That the Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD '
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 16th day of January 1976.