Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43319 Docket No. MW-44462 19-3-NRAB-00003-170586

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 Division (IBT Rail Conference

PARTIES TO DISPUTE: (

(Kansas City Southern Railway Company (former ( former Gateway Western Railway 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 comply with Rule 7 and provide Mr. E. Ottwell with a proper meal period after he worked more than ten (10) hours a day on October 3, 4, 8, 18, 21, 27, 29 and November 5, 10, 11, 12 and 18, 2015 (System File C 15 10 03/K0415-6520 GAT).

(2) As a consequence of the violation referred to in Part (1) above, Claimant E. Ottwell shall now '... be compensated a total of fourteen (14) hours at the time and one-half rate of pay which totals $527.31 for the Claimant plus late payment penalties based on a daily periodic rate of .0271% (Annual Percentage Rate of 9.9%) calculated by multiplying the balance of the claim by the daily periodic rate and then by the corresponding number of days over sixty (60) that this claim remains unpaid.' (Emphasis in original)."

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.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

The Claimant is a bridge tender assigned to Gang 650 headquartered in Louisiana, Missouri with duties of operating, inspecting and repairing the Carrier's river bridges. The Claimant has a bulletined assignment of five, eight-hour days.

On various dates in October and November 2015, the Claimant was required to work past his assigned shift on overtime causing him to work from 10 to 16 hour days, for which he was compensated at the overtime rate for work performed in excess of his assigned eight hour shift.

Claim was filed on the Claimant's behalf seeking compensation because the Claimant "... worked over ten consecutive hours without being provided a substantial hot meal provided by the Carrier, allowed time to take mentioned meal period, or compensated one hour at the time and one half rate per meal period, as was the practice before the date of this claim."

The Organization's focus is on the periods of overtime worked by the Claimant arguing in its Submission at 5 that the Carrier violated the Agreement "... when it failed to provide the Claimant with a paid non-working meal period and also failed to afford a meal, let alone a hot and substantial meal, during overtime service on various dates in October and November 2015."

The relevant rule provides:

"RULE 7 MEAL PERIOD

(a) Unless otherwise agreed to by the proper officer and duly accredited representative, the assigned meal period shall not be less than thirty (30) minutes nor more than one (1) hour.

(b) If an employee is assigned to a shift consisting of eight (8) consecutive hours or more, then not less than twenty (20) minutes shall be allowed in which to eat, without deduction in pay, during the fourth or fifth hour after the beginning of the job assignment.

(c) When a meal period is allowed as provided in (a), above, it shall be regularly assigned during the fourth or fifth hour after the beginning of the job assignment, unless otherwise agreed to between Management and the duly accredited representative. If the meal period provided for in (a) or (b) above, is not afforded within the assigned period and is worked, the meal period shall be paid for at the overtime rate and twenty (20) minutes with pay in which to eat shall be afforded at the first opportunity.

(d) Employees will not be required to work more than ten (10) hours without being permitted to take a second meal period, and succeeding meal periods will be granted at appropriate intervals of not more than six (6) hours. Time taken for such meal periods will not terminate the continuous service period and will be paid for up to thirty (30) minutes for each such meal period.

(e) The second meal and subsequent meals (if any) under Section (d) shall be furnished by the Carrier, at Carrier expense. The Carrier will make a reasonable effort to insure that such meal will be hot and substantial.

(f) The Carrier will make suitable arrangements for employees to take additional and succeeding meals for which allowance is made pursuant to Section (d) and (e) above, or for meals on rest days and holidays, when the work extends beyond the time of which the employee has been given notice prior to reporting to work."

Rule 7(d) provides, in pertinent part, that "[e]mployees will not be required to work more than ten (10) hours without being permitted to take a second meal period, and succeeding meal periods will be granted at appropriate intervals of not more than six (6) hours." The Organization's position that the Carrier failed to provide the Claimant with a paid non-working meal period is not supported by this record. There is nothing to show that the Claimant was prevented - either by work requirements or by direction from supervision - from taking a meal period during any of the overtime periods on the days he worked past his assigned shift. The Claimant is a bridge tender and works basically unsupervised. He was compensated at the overtime rate for the hours he worked overtime. According to the Carrier's January 28, 2016 letter - which is not refuted by the Organization - the Claimant was paid for every hour worked when that work was past his regular assignment and he is "... allowed time to eat and no one is telling ... [him] not to eat ... [and his] duties are not such that ... [he] cannot stop to eat." Without more from the Organization, we cannot find that the Carrier did not "permit" or "grant" the Claimant a meal period as required by Rule 7(d).

Compare Third Division Award 40440 cited by the Organization where the employees "... were never given a second meal period during the overtime period ... [and] that meal period was not provided." That is not this case. The record does not show that the Claimant was denied a meal period on any of the dates involved in this case. See also, Second Division Award 13820 where the employees were left without food or transportation and had only water, coffee and donuts provided and when some employees requested to stop for a required meal had that request denied and were told that there was not enough time to stop. Again, that is not this case. There is nothing here to show that the Claimant was unable or not allowed to take meal periods in the overtime periods he worked.

However, Rule 7(e) requires that "[t]he second meal and subsequent meals (if any) under Section (d) shall be furnished by the Carrier, at Carrier expense ... [and t]he Carrier will make a reasonable effort to insure that such meal will be hot and substantial." Given that the Carrier has taken the position that the Claimant was free to take a meal period at any time that he worked overtime, it is apparent - and there is no evidence to the contrary - that meals were not furnished by the Carrier to the Claimant as required by Rule 7(e). The Claimant shall therefore be entitled to compensation for reasonable meal costs on those claim dates that the Claimant worked overtime qualifying him for such meals under Rules 7(d) and (e). The parties in the first instance should have the ability to agree upon what those costs should be. If the parties are unable to so agree, the Board will retain jurisdiction to determine the appropriate costs as part of the remedy.

We have considered the Carrier's argument that the Organization cited the wrong rule (Rule "17" as opposed to Rule "7"). That was clearly a typographical and harmless error as the references throughout this case have been to the provisions of Rule 7.

AWARD

Claim sustained in accordance with the Findings.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 14th day of December 2018.