PARTIES - Brotherhood of Maintenance of Way Employes

          DISPUTE: and

          Seaboard System Railroad (former L&N Railroad)

          STATEMENT 1. Carrier violated the agreement when members

          OF

          CLAIM: of Gang 5N78 were not granted meal period as

          provided in Rule 34(a).

          2. Each claimant listed in claim letter dated

          November 13, 1984 to Division Engineer Beckman

          shall be compensated for 30 minutes at overtime

          rate beginning September 17, 1984 and continuing

          until the violation of Item 1 above was discon

          tinued.

          FINDINGS: Claimants are members of Tie Gang 5N78, a float

          ing gang housed in camp -cars headquartered at

          Wartrace, Tennessee. During the period in ques

          tion, they began work at 6 a.m. Their meal per

          iod, under the terms of Rule 34(a), is to be

          allowed


                          "between the ending of the fourth

' hour and the beginning of the seventh
                          hour after starting work, unless other

                          wise agreed upon by the employes and

                          the management. Unless acceptable to

933 - Aw 0 8 2

      a majority of employes directly in- - terested, the meal period shall not be less than 30 minutes nor more than one hour." When members of the Gang complained that the . 10' a.m..meal period came too early, the foreman permitted the Gang to take their meal at 12:30 p.m.; a-`dine-beyond the beginning of the seventh hour specified in Rule 34(a). It is Petitioner's position that the Rule was therefore violated and the present claim must be sustained. In that regard, it cites Rule 57 (e) which provides:


                      "Local officers and local committees or employes shall not enter into local understandings or agreements,

                      . except as specifically authorized in certain rules of Agreement."


      In Petitioner's view, the only specific authorization granted by Rule 34(a) for a change by a majority of employes relates to the length of the meal period. 'Petitioner reasons that commitments contained in Rules 34 and 57 were reached through the


      collective bargaining process and cannot be varied by individual -

      agreements or waived without the consent of Carrier and the Organi

      zation.

      The exclusive bargaining representative of

      Gang 5N78 is of course the Organization and local-understandings

      that are in conflict-with the terms of the collective bargaining

      Agreement will not be given effect. However, in agreeing upon

      Rule 34(a), the contracting parties have at least given each other

      a reasonable basis for believing that the employes themselves may

      agree with management to change the time for a meal period. If

3
 0-3103- ,g~,D (P

 it were intended that only the General Chairman or bargaining committee could agree to the change, appropriate language could, have' been utilized by the well experienced negotiators to make that r requirement clear.
        It is this Board's conclusion that the mealhour could be changed, as it was in the present case, by an understanding between management and the employes. That conclusion is perfectly consistent with the terms of Rules 34(a) and 57(e).

        Even if a contrary result were reached, the claim for pay would not be upheld. The claimants will not be permitted to enrich themselves unjustly by agreeing to a change and then seeking to profit by the theory that the change was wrongful.


        AWARD: Claim denied.


                      Adopted at Jacksonville, Florida,-bZL '9~ 1985.


                              ( .t>> 2 ~`'``D tiv - 31 _ \

                          Harold M. Weston, Chairman


a rier Member Employee Membe