PUBLIC LAW BOARD N0. 1812
PARTIES Southern Pacific Transportation Co. - Texas & Louisiana Lines
TO and
DISPUTE Brotherhood of Railway, Airline & Steamship Clerks, Freight Handlers,
Express & Station Employees - Southwestern Board of Adjustment No. 95
STATEMENT "Claim of the System Committee of the Brotherhood that:
0 CP-LAIM
1. Carrier violated the rules of the current Clerks' Agreement, Rule
30 (8) in particular, when on January 3, 4, 5, 6, 7, 10, 11, 12, 13 and"
14, 1975, it did not allow Mr. J.C. Gilbreath, Third Trick TelegrapherClerk-Towerman, Tower 121, San Antonio, Texas, Seniority District No. 4
20 minutes without reduction in pay in which to eat and then refused to
compensate him for 20 minutes at the pro rata rate of his position in
addition to any other pay received on those dates in compliance with the
provisions of the rules of the Clerks' Agreement.
2. Carrier shall allow Mr. J.C. Gilbreath an additional 20 minutes pro
rata at the' rate of his position for each of the dates enumerated
above in addition to all other pay received on those dates, as compensation for his 20 minute meal period as provided for in Rule 30 (B)."
FINDINGS
Upon the whole record, after hearing, the Board finds that parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that
this Board is duly constituted under Public Law 89-456 and has jurisdiction of the
parties and the subject matter.
This Claim is based on the alleged failure of Carrier to comply with the provisions
of Rule 30 (8) of the Agreement. It is understood that there is a series of similar
pending claims which will be disposed of based on the decision in this dispute. Rule
30_(0) provides:
"When conditions of service will permit, an employee working a shift
of eight (8) consecutive hours shall be allowed twenty (20) minutes .
without reduction
in
pay in which to eat. When conditions of service
does not permit twenty (20) minutes with pay in which to eat the employee will be allowed an additional twentv (201 minutes pay at the
pro rata rate."
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At the outset, Carrier objects to a letter dated September 21, 1976 from Petitioner
as untimely, in view of the creation of this Board on August 31, 1976. This position is correct. However, it is also noted that the Organization gave Carrier notice
of its desire to establish this Board on August 3, 1976; following that date and
prior to August 31st, Carrier made some new investigations culiminating in its letters and attachments dated August 12 and 25th. Although Carrier's material is
timely, tile integrity of the contractual process is impaired by the last minute
b·-r~.~ge of new material shortly before the cut-off date with little., if any, time
to respond. In tile interest of effectuating the policies of the Act as well as the
erfective disposition of disputes, this last minute flirtation with time limits
should be avoided. It also must be noted that this Board does not deem time checks
conducted on August 24, 1976 relevant to conditions obtaining in January, 1975.
Carrier asserts, in contending, that it did not violate the above quoted rule, that
(1) the rule does not require Carrier to~permit employees to leave -their work locations during the twenty minute meal period; that (2) at no time on the claim dates
was Claimant denied permission to eat during his tour of duty; and (3) there is no
provision requiring the twenty minute meal period to be consecutive. In support of
its position, Carrier presented statements by various Yardmasters that, in addition
to not denying towermen permission to eat during their tours of duty, they informed
the towermen "...that they should take their meal period, when conditions of service permit, during their tour of duty." Carrier also. relies in part on Third Division (N.R.A.B.) Award No. 13310 which held that a related claim was without merit,
stating in part:
"Nothing is said about how this twenty minute
period is to be assigned
or taken. Had the parties intended to specify twenty "consecutive"
minutes, they could easily have done so-. Certainly the Boar may by interpretation, add such language to the rule
as negotiated and
consummated by the parties."
Petitioner readily agrees that the Rule cited does not give employees the right to
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lleave their work locations during the meal period - and that contention is not part
of this dispute. It is also argued that the issue of twenty consecutive minutes has
long been resolved by various awards on a number of Carriers in related disputes,
and a series of Awards are cited including Third Division Awards 6814, 17035, and
21029.In Award 17035, the Board stated:
"It is the opinion of the Board that the twenty minutes referred to in
Article VII (a) means twenty consecutive minutes. The only reasonable
interpretation of the rule is that at some time during the eight hour
period the employee is to have some twenty minutes consecutively during which he can eat. The rule does not require that a specific twenty
minute period be set aside. The Carrier's obligation under the rule
is to schedule the work and personnel so that at some time the employees
have twenty consecutive minutes in which to eat. Obviously, twenty
one minute period; wouldnot
fulfill
the function of a twenty minute
meal period."
Petitioner emphatically denies that the Claimant was given permission to eat as alleged
by Carrier on the dates in question. An understanding with'respect to the implement-3_
tion of the revised rule is cited by Petitioner. Such informal agreement was reached
with the Trainmaster, San Antonio Division at a meeting on November 1, 1974 with
officers
of
the Organization.. At that meeting it is allege that. it was agreed that
Yardmasters in the tower would grant permission for the meal period and, of course,
following that the train dispatchers permission would be sought. Althought it was
not required by Agreement, the General Chairman of the Organization set up a procedure whereby employees in the tower were required to ask the Yardmaster's permission
for their twenty minutes three times during their tour of duty, prior to processing
a claim for pro rata pay. This procedure was followed by Claimant herein.
The dispute herein boils down to two points: must the Carrier designate a specific
time for the meal period and does the rule require twenty consecutive minutes.
The latter question must be answered first: We believe that the language referred
to above from Award 17035 is persuasive. The parties intended a twenty minute meal
period by their contractual language, not four five minute periods or some other
breakdown of the time. Conventionally, if there is to be "break" whether for lunch
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or other purposes, the time span should be read literally as agreed to by the parties
rather than in some other fashion. Therefore, we find that the meal period should
be twenty consecutive minutes.
Tire remaining question is more difficult. Carrier may, should it be desired, dele-
gate to each employee tire right to pick and choose his own time for the twenty minute
I
yak, based on the "conditions of service". However, that decision would also give
the employee the right to say then, that he was unable to find such time and hencX,
claim pay, as provided in the rule. There is no question but that the Carrier has
the burden of providing the meal period in question (c.f. Third Division Award 17178)
as it sees fit. Carrier can't have it both ways as in this dispute. If the Yardmasters do not agree to the request for a designated meal time, as herein, but leave
it to each employee as "conditions of service permit", they cannot later object to
a claim for pay. It is obvious that this dispute should ultimately be resolved by
an agreed upon procedure for setting the meal period; in the absence-of such agreement, the provisions of Rule 30 (B) must be applied literally and each employee
must be granted a twenty minute meal period, or pay in lieu thereof. The burden is
upon Carrier in each instance to establish that the employee was indeed granted the
requisite time, in the event of controversey,
AWARD
Claim sustained
ORDER
Carrier will comply with this Award within thirty days from the date hereof.
M·1~
Neutral flember
E p oyee m er Carrier Mem er
Dated: 1129977