Form I
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 40371
Docket No. MW-40711
10-3-NRAB-00003-080561
The Third Division consisted of the red members and in addition Referee
Edwin H. Benn when award was rendered.
(Brotherhood of Maintenance of Way Employes Division -
( IBT Rail Conference
PARTIES T4 DISPUTE:
(Union Pacific Railroad Company
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed and
refused to properly compensate the employes assigned to
System Gang 8514 for their overtime service on March 12, 2007
(Carrier's File 1477299).
(2) As a consequence of the violation referred to in Part (1) above,
the Claimants, all employes assigned to System Gang 8514 on
March 12, 2007, shall now `. . . each be compensated 5 1/2
hours at double the existing straight time rate of pay and 3
hours at double overtime rate of pay for the denied meal
periods as provided for in Rule 32 of the Collective Bargaining
Agreement. ***"
FINDINGS:
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. 40371
Page 2 Docket No. MW-40711
10-3-NRAB-00003-080561
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, on March 12, 2007, System Gang 8514 was
working a 7:00 A.M. to 5:30 P.M. work schedule observing lunch between 12:00
P.M. and 1:00 P.M. On that date, the gang made a 44 mile move on the Lynndyl
Subdivision, Salt Lake City, Utah, from Mile Post 736.0 to Mile Post 780.0. The
claim here is that System Gang 8514 was denied a meal period under Rule 32.
The Carrier responds with a statement from Track Supervisor W. Allen:
"Employees of the 8514 System Curve Gang have always been
afforded an opportunity to eat.
The meal period is allowed in compliance of BMWED Rule 32.
All gang employees are aware that their meal period is to be taken.
They are also aware, that many times, they will not be told exactly
when to eat. Due to the size of the Gang and the scope and nature of
their work, it would be impractical, and often impossible for all
employees to take a meal period at exactly the same time everyday.
Nevertheless, all are and were able to take their meal period."
The burden to demonstrate all elements of its claim falls on the Organization.
It asserts that the employees on System Gang 8514 were denied the ability to take
their meal period on the claim date. The Carrier, through the statement of
Supervisor Allen, refutes that assertion and states that employees were free to take
their meal period. The record is therefore in conflict. But the burden of proof is on
the Organization. A record in conflict on the material facts cannot support a
sustaining award.
This claim shall therefore be denied.
Form I Award No. 40371
Page 3 Docket No. MW-40711
10-3-NRAB-00003-080561
AWARD
Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an Award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 25th day of March 2010.