NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number CL-2538=
Herbert L. Marx, Jr., Referee
(Brotherhood of Railway, Airline and Steamship Clerks,
( Freight Handlers, Express and Station Employes
PARTIES TO DISPUTE:
(Duluth, Missabe & Iron Range Railway Company
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-9849)
that:
1. Carrier violated the Agreement between the parties when it failed to
provide an assigned meal period on the 2:30 p. m. to 10:30 p.m. Ore Sorter
Position occupied by Claimant.
2. Carrier shall now be required to compensate Ore Sorter L. D.
Johnson thirty (30) minutes punitive, at the day Ore Sorter rate for each of
the following claim dates: October 18, 19, 20, 21, 22, 25, 26, 27, 28 and 29;
November 1, 2, 3, 4, 5, 8, 9, 10, 11, 15, 16, 17, 18, 19, 22, 23, 24, 25 and
26, 1982.
OPINION OF BOARD: Claimant was assigned to a bulletined position as Ore Sorter
Proctor Yard Office with hours from 2:30 p. m. to 10:30 p. m.
for the period of October 18 to November 26, 1982. During this period,
clerical employees were not assigned on a continuous around-the-clock basis at
Proctor. The Claimant was not assigned a meal period during his shift while in
this position. On November 30, the Claimant initiated a claim for one-half
hour's pay at time-and-one-half rate for each day on the assignment.
Pertinent rules read as follows:
"RULE 28
Working During Assigned Meal Period
For regular operations requiring continuous hours, eight consecutive
hours without meal period may be assigned as constituting a day's
cork, in which case not to exceed twenty minutes shall be allowed in
which to eat, without deduction in pay, when the nature of the work
permits.·
'RULE 29
Working During Assigned Meal Period
(a) Except for regular operation requiring continuous hours, all
regular established positions will have an assigned meal period,
which will be allowed between the ending of the 3-1/2 hour and the
beginning of the 7th hour after starting time. anployees required to
work any part of the assigned meal period will be paid for the actual
time worked at the rate of time and one-half and at the first
opportunity will be allowed not less than twenty minutes without
deduction in pay in which to eat..."
Award Number 25464 Page 2
Locket Number CL-25385
During the claim processing procedure, the Carrier agreed that the
Claimant was improperly assigned under Rule 28 and should have been assigned
under Rule 29 (a). The Organization argues that the Claimant is entitled to
the requested pay because, under Rule 29 which should have been applied, he did
not receive an assigned meal period and was entitled to the payment specified
in the second sentence of Rule 29 (a).
while admitting the failure to schedule the Claimant under Rule 29,
the Carrier argues that the Claimant is not entitled to any monetary remedy.
First, the Carrier contends that the Claimant could have complained of the nonassignment of a meal p
then have promptly remedied the situation. Second, the Carrier points out that
the Claimant suffered no monetary loss. Had he been assigned a meal period,
his work hours would have extended beyond 10:30 p.m. and he would have still
been required to perform eight hours' of work. Since he was (mistakenly)
assigned under Rule 28, he was presumably permitted time in which to eat within
his eight paid hours. Third, the Carrier states that since the Claimant was
_not given an ·assigned meal period ·, he cannot be said to have worked during
any such non-existent period.
The Board finds, first of a11, that the filing of the claim on
November 30 did not make it untimely. Rule 20 provides for the presentation of
a claim 'within sixty days from the date of the occurrence, and the Claimant
met this time limit.
Thus, the claim is in proper form, and there was a violation of the
Agreement. The Board finds, however, that a monetary remedy would be improper.
While not required to file an earlier claim, the Claimant could have requested
a change in his work schedule at any time during the period of his assignment.
He elected not to do so. More significantly, it cannot be shown that the
Claimant suffered any financial loss. Under either Rule 28 or Rule 29 (a), he
would have been assigned to work eight hours. While losing an unpaid meal
period during his shift, he nevertheless completed his work day earlier than he
would have if he had an assigned meal period.
The Carrier defends its initial action on an assumption that the
arrangement provided would have been satisfactory to the Claimant. As is now
apparent, however, compliance with the rule is required, unless mutually
amended by the Organization and the Carrier. Postings of non-continuous
positions must necessarily include the assignment of meal periods if there is
to be compliance with Rule 29 (a).
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;
Award Number 25464 Page 3
Locket Number CL-25385
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 in accordance with the Opinion.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST
Nancy J. De -Executive Secretary
Dated at Chicago, Illinois, this 23rd day of May 1985.