Claimant, a Section Foreman, timely filed a claim with the proper Carrier Officer contending that because he had a 707 Conditional Stop Order on a daily basis from May 10, through and including May 31, 1991 (which required his presence to protect train movements through the area of repair) he was requesting 7'/s hours at the overtime rate for working through his lunch hours.
The Carrier denied the claim on the basis the Claimant failed to provide any specifics regarding work done during his lunch hours.
The Organization responded that the 707 Conditional Stop Order was in effect throughout Claimant's lunch hour and when in effect, the responsible party must remain in the immediate vicinity to protect the track, employees and traffic, and that should he leave the protected area, he would be subject to disciplinary action.
This is the nature of the dispute as this Board perceives it, although there exists other charges and countercharges which must be dealt with before the basics can be adjudicated.
When the claim was appealed, the Organization representative went off on a tangent concerning Foremen flagging for contractors, and then proceeded ·.o link Claimant's performance with that of protecting a contractor. The Carrier stated that Claimant did not provide flag protection for a contractor. The Board finds that this issue is a nullity as Claimant, who filed his own claim, did not state he was flagging for a contractor. He simply stated he had 707 Conditional Stop Orders to protect work on various tracks within specific mile post areas on specific dates. This basic assertion was never refuted and is, therefore, accepted as fact.
The Carrier raised a historical practice defense contending no other employee had sought compensation for working through the lunch hour because of an existing 707 Conditional Stop Order. The Organization responded, without rebuttal, that up to about one year prior to the claim dates, before the dispatching offices were consolidated, the 707 Conditional Stop Order protection excluded the lunch hour. As an example, the Orders protected workers from 8:00 AM to 12:00 Noon, and then from 12:30 PM to 4:30 PM. Since the consolidation, however, they protected workers from 8:00 AM through to 4:30 PM. Form 1 Award No. 31529
The Carrier challenged the Organization to explain how the cited Rules were violated. The Organization did not respond adequately to a:plain how the cited Rules were violated, particularly Rules 20, 22 and 24 (a) and (b). Thus, these Rules and any arguments raised in connection therewith have not been considered. Rule 21, however, remains and is the center piece of this dispute. The Organization demonstrated how this Rule was violated.
The real question for this Board to resolve is whether stand-by time should be treated as time worked.
The Organization repeatedly stated that with a 707 Conditional Stop Order in effect, the responsible employee is tied to the specific area he is obligated to protect and that he cannot leave the area or even relax his vigilance.
The Carrier never denied this assertion, but countered that this is a lunch box industry and if he actually performed any work, such as flagging during his assigned lunch hour, it would allow compensation, but just because the Claimant was standing by and required to protect against train movements, it argued that Rule 21 is inapplicable.
The Organization cited Third Division Award 18153 as precedent setting. In deciding a dispute on all fours with this dispute, that Award held: