Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28034
THIRD DIVISION Docket No. CL-27676
89-3-87-3-167
The Third Division consisted of the regular members and in
addition Referee Dana
E.
Eischen when award was rendered.
(Transportation Communications International Union
PARTIES TO
DISPUTE:
(Illinois Central Gulf Hospital Association
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
(GL-10160) that:
1. Beginning February 3, 1986, Company violated the current Clerks'
Agreement, including Rules 25, 26, 28 and 30 among others, when it discontinued the long-established
each workday.
2. Company shall now be required to pay each employe covered by the
Clerks' Agreement thirty minutes' overtime beginning February 3, 1986, and
continuing each workday until the two fifteen-minute paid breaks are reestablished."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record
and all the evidence, finds that:
The Association and the employe or employes involved in this dispute
are respectively Association and employes within the meaning of the Railway
Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
The Illinois Central Gulf Hospital Association (Association), established in 1911, is a not-for-
employees and retirees of the Illinois Central Gulf Railroad, its officers,
and the Association. The Railroad does not own or operate the Association,
per se, but apparently has a controlling interest in the Association's Board
of Directors; with the balance of the Directors consisting of the chief
officers of labor organizations representing various crafts or classes of
employees of the Railroad. From 1916 until 1974, the Association owned and
operated the Illinois Central Hospital in Chicago, Illinois. With the sale of
the Hospital in 1974, however, all remaining employees of the Association were
moved to a new office facility in Homewood, Illinois.
Form 1 Award No. 28034
Page 2 Docket No. CL-27676
89-3-87-3-167
Since 1955 clerical and office employees of the Association have been
represented by BRAC (now TCU), covered by the terms of successively renegotiated Collective Bargaini
Association. The original Agreement of January 1, 1955 was revised June 1,
1976, and was in effect, except as amended, in 1986, when the present Claim
arose.
Rules of the Agreement particularly relevant to the present case are
Rules 25, 26, 28 and 30, reading, in pertinent part, as follows:
"Rule 25 - Day's Work and Work Week
(a) Except as otherwise provided in these
rules, eight (8) consecutive hours exclusive of
meal period shall constitute a day's work.
NOTE: The expression 'positions' and 'work'
used in Rules 25, 30 and 34 refer to service,
duties or operations necessary to be performed
the specified number of days per week and not to
the work week of individual employees."
"Rule 26 - Meal Period
(c) Unless agreed to by a majority of the
employees, the meal period shall not be less
than forty-five (45) minutes nor more than one
(1) hour."
"Rule 28 - Changing Starting Time
(a) Regular assignments shall have a fixed
starting time and rest days, which will not be
changed without at least thirty-six (36) hours
written advance notice to the employees affected."
"Rule 30 - Overtime
(a) Except as otherwise provided in these
rules, time in excess of eight (8) hours, exclusive of meal period, on any day will be considered ov
basis at the rate of time and one-half."
More or less contemporaneously with the closing of the Illinois
Central Hospital in 1974, and the resultant move to Homewood, management of
the Association notified employees by Memorandum of August 19, 1974, as
follows:
Form 1
Page 3
Award No. 28034
Docket No. CL-27676
89-3-87-3-167
"We will continue to have our 15-minute
rest periods as a group at 9:45 a.m. and 2:45
p.m.
Because of limited space for lunchroom
facilities, we will have two 45-minute lunch
periods which will be 11:30 a.m. and 12:15 p.m.
Note the assigned lunch schedule. Be prompt in
returning from your lunch period in order that
your other co-workers may also enjoy a full
lunch period.
Arrive at your desk each workday at 7:50
a.m. Work should not be put away before 4:30
p.m., and remain seated until 4:35 p.m."
The practice of Agreement-covered employees taking two (2) paid
fifteen-minute rest breaks, one in the morning and one in the afternoon,
during the eight-hour workday, in addition to the unpaid forty-five minute
lunch period, continued unabated from 1974 until 1986. It is noted that the
revised office Regulations promulgated by the Association in June 1985, contained the following cont
paid daily rest breaks:
"F. Rest Breaks/Lunch
Since breaks are a paid benefit, we
encourage you to take them each day.
Breaks cannot be used for make-up time.
Any make-up time should be done before or
after your regular work hours or during
lunch subject to your mahager's prior
approval.
2. Rest breaks (15 minutes) should be taken
anytime from 9:00 a.m. up through 10:30
a.m. and 2:00 p.m. up through 3:15 p.m.
Please consider your fellow workers while
taking your breaks.
3. The lunch period (45 minutes) should be
taken from 11:15 a.m. up through 1:45 p.m.
Please indicate on your time card the
actual time taken for lunch.
Every Friday, the 45 minute lunch period
can be combined with one of that day's 15
minute breaks in order to take an hour
lunch. If this option is desired, please
so indicate this on your time card.
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Page 4 Docket No. CL-27676
89-3-87-3-167
5. Please let your manager know if you wish
to make an exception to the above time
limits."
Commencing January 1986, the Board of Directors mandated Association
management to cut operating costs and approved, among other economies, elimination of the two (2) pa
Agreement. Effective February 3, 1986, Association management revised the
reporting and quitting times, eliminated the paid breaks, and gave covered
employees the option of individually selecting one of the following schedules:
Hours Breaks Lunch
7:45 a.m. to 4:30 p.m. None 45 minutes
7:45 a.m. to 4:30 p.m. 1 - 15 min. 30 minutes
7:30 a.m. to 4:30 p.m. 1 - 15 min. 45 minutes
On March 10, 1986, the Organization filed a Claim that the elimination of the breaks was a viola
Agreement-covered employees be "reimbursed the monetary loss" from February 3,
1986, until restoration of the paid breaks. The Claim remained unresolved on
the property until eventually it was appealed to this Board.
The Organization contends that the Claim never was properly or timely
denied on the property, but the record evidence does not persuade us to that
view. At the oral argument before the Board, the Association's advocate moved
for dismissal of the case for lack of jurisdiction, on grounds that the Association was not a "carri
That argument never was raised by the Association on the property or in its
Submission to the Board. Even if we assume, arguendo, that this is a jurisdictional objection
not find the motion for dismissal supported by any evidence in this record.
Turning to the merits of the case, we find a clash between the plain
words of Rule 25(a) and a contrary practice under which the Association paid
Agreement-covered employees compensation for eight (8) consecutive hours of
work exclusive of their meal period, but employees worked only seven and
one-half hours each day. After ten or twelve years of enjoying this practice,
employees understandably considered that the gratuity had ripened into an
entitlement. In the absence of contrary contract language, a long-standing,
uniform and unequivocal practice might well be viewed as persuasive evidence
of an implied mutual agreement upon a term or condition of employment. When
the language is clear and unambiguous, however, even a long-standing contrary
practice ordinarily must yield when a party to the Agreement insists upon
enforcement of the language. In that connection, we find authoritative precedent in Third Division A
Form 1 Award No. 28034
Page 5 Docket No. CL-27676
89-3-87-3-167
"Under well established principles, unambiguous
provisions of the Agreement generally must prevail over conflicting practice. This record
does not indicate a waiver of Carrier's right to
enforce the Agreement in this respect nor can we
find herein support for an estoppel in pais. In
light of all the foregoing we have no alternative but to deny the claims."
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
,Nancy J. e r -Executive Secretary
Dated at Chicago, Illinois, this loth day of August 1989.