Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 39276
Docket No. MW-38291
08-3-NRAB-00003-040169
(04-3-169)
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Union Pacific Railroad Company
"Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it did not allow a
regular meal period for the employes on Gang 9001 and when
it did not compensate said employes for working their meal
period beginning January 12, 2003 and continuing (System File
J-0332-52/1361183).
(2) As a consequence of the violation referred to in Part (1) above,
`The Carrier must compensate each employe assigned to Gang
9001 one-half (1/2) hour per day at the pro rata rate beginning
on January 12, 2003. This claim is continuous for any and all
future days when the regular meal period is not allowed."'
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act,
as approved June 21, 1934.
Form 1 Award No. 39276
Page 2 Docket No. MW-38291
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This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
According to the Organization, the Carrier did not provide members of
System Gang 9001 "a regular meal period" and further did not compensate those
employees as a result of not providing a regular meal period. According to the
Organization's Submission to the Board, the Carrier is obligated to ". . . designate a
regular (fixed) meal period for the members of System Gang 9001 . . . ."
Rule 32 - MEAL PERIODS provides:
"(a) Where a meal period is allowed it will be between the ending of
the third hour and the beginning of the sixth hour after starting
work. The regular meal period will not be less than thirty (30)
minutes or more than one (1) hour."
Bulletin No. GNSL13484 for System Gang 9001 states:
"ASSIGNED HOURS: 0700A-0330P LUNCH NORMALLY 4HRS
AFTER START."
In Third Division Award 32627 between the parties, the Board addressed a
claim by the Organization that "[t]he Carrier violated the Agreement when it failed
to designate a regular meal period, in accordance with Rule 32, for the employes
assigned to various System Gangs . . . ." In that case, the Board made a narrow
holding:
". . . [W]e
conclude that Carrier is required to include a normal
meal period in its bulletins of system gang vacancies.
We emphasize the narrowness of the issue presented to us and the
narrowness of our holding. The only issue presented is what, if
anything, Carrier is required to specify concerning meal periods in
Form 1 Award No. 39276
Page 3 Docket No. MW-38291
08-3-NRAB-00003-040169
(04-3-169)
bulletins for system gang vacancies. We hold only that Carrier is
required to handle system gang bulletins in the same way as it
handles division gang bulletins with respect to meal periods."
In Third Division Award 37368 (again between the parties and issued after
Third Division Award 32627 as well as after the filing of this claim) the Board
considered Third Division Award 32627 and addressed a claim concerning the
Carrier's use of the words "lunch normally 1130-12" contained in a bulletin for a
system gang and held:
". . . [W]e
agree with the Carrier that the phrase `lunch normally'
did not confer upon the Claimants an absolute right to an "assigned
meal period of 30 minutes at the end of the fourth hour after
starting work for the duration of Gang 9013's existence, as the
Organization would have it. The meal period information contained
in the bulletin, although it did furnish a time, was only a guideline
based on service requirements ....
. . . [W]e conclude that `lunch normally' did not create a hard and
fast time for the meal period, and did not trump the specific
negotiated language of Rule 32(a) that accorded the Carrier
flexibility in scheduling meal periods .. . ."
Here, the phrase "lunch normally 4hrs after start" used by the Carrier in
Bulletin No. GNSL13484 for System Gang 9001 is really no different than "lunch
normally 1130-12" discussed in Third Division Award 37368. "Lunch normally"
does not mean that all members of System Gang 9001 must always stop working
and eat lunch at the same designated time - i.e., preciselv four hours after they start.
As found in Third Division Award 37368, that phrase ". . . did not create a hard and
fast time for the meal period . . . ." Indeed, had that been the intent, the bulletined
language would have stated "lunch 4hrs after start." Similarly, and in any event,
Rule 32(a) only provides for a window for lunch to be taken and not for a specific
time as urged by the Organization. On that basis, the claim shall be denied.
Form 1 Award No. 39276
Page 4 Docket No. MW-38291
08-3-NRAB-00003-040169
(04-3-169)
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Ciaimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 21st day of July 2008.