' I


PARTIES TO DISPUTE
      ', _ 'BROTHERHOOD ,OF.';·fAI~ITENAN'GE OF WAY''EMPLOYES,~ ,,~ · 'o . ~'I', . -·.l,~'


                          And


                  CSX TRANSPORTATION, INC.


                                                        f.


STATEMENT OF CLAIM'

    First: that the agreement was violated when the Carrier A) did not compensate the members assigned to this gang (listed in the Organization's letter to Mr. Beckham, Division'Engineer, copy

                                                      ,i .

    enclosed) for working through their meal period as outlined in ":I,·

    Rule 34(a) and Rule 34(c); B) altered the working hours from eight

    (8) hours per day five (5) days per week, as outlined in Rule -

    28(a), and C) did not make.agreement with the Organization and its

    employes to alter A) and B) above, under Rule.57(a). ,


                                                        I 1

                                                        I n, I V.

    Second: that the Carrier compensate each claim listed in theA.''t `

    Organization's letter to Mr. Beckham, for thirty minutes overtime

    and one hour straight time for each work day from May 6, 1985 to

    June 10, 1985 at the claimants' rates of pay. I .,


              n


FINDINGS
Claimants were members of Tie Gang 5N78 headquartered at Tullahoma,
 Tennessee. Gang 5N78 was a floating gang housed in camp cars,

    Rules 34(a), (b) and (c) and 57(e) provide:


                · Y,

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                      - '. , · ,~38-1f ,...,, " TL

                                                          · ~;_.


      RULE 34. MEAL PERIOD

      I

      34(a) When a meal period is allowed it will be between the ending

      of the fourth hour and the beginning of the seventh. hour after

      starting work, unless otherwise agreed upon by the employes and

      the manaF-ement. Unless acceptable to a majority of employes °,-·~-- .,

      directly interested, the meal period shall not be less than 30

      minutes nor more than one hour.

      Where the majority of the emoloyes in a gang agree to take only 30 ,

      minutes for their lunch period, that may be done by advising the ., I

      Division Engineer at least three days in advance. The same

      handling will be given each time the meal period is changed.

      Employes assigned to camp cars, camps, highway trailers, hotels or

      motels will be allowed the full meal period at their headquarters.

      34 (b) If the meal period is not afforded within the allowed or

      agreed time limit and is worked, the meal period shall be paid for

      at time and one-half rate and 20 minutes with pay in which to eat, ,

      shall be afforded at the first opportunity. Time allowed for

      meals will not terminate the continuity of service. '

      34(c) The. timg at which the eal period will be allowed under

      this rule may bd varied,at the' convenience of the railroad company C

      to meet the service requirements, and no punitive payment shall -

      accrue if the.meal period is granted within the two-hour spread

      provided.

      For exginple, assuming that the.starting time is I7 A.M. and that

      one hour is generally taken for meal between 11:00 A.M. and 12:00

      Noon, if economical service requires it, the meal hour may be .

                                                            I'

      taken from 11:30 to 12:30, from 12:00 Noon to 1:00 P.M., or any,

      other ·convenient time within the two hours. Tf',the two, hours ;1-',

      between 11:OQ,A:,M'. and 1,:QO'P.M. are worked, 'then.one-hour of the , ·- , .

      two mist -lie 'p4id' for a time' ··and one-half rate and the men allowed

      20 min)ztes in which to e,at`;,·at first;opportunity, without dedue

      tion of pay.


      57(e) Local officers and., local committees or employees. shall not

                                                        '~-


      enter into local understandings or agreements; except as specifi-

      cally authorized 'in certain.,rules of agreement '(Underscoring I'

      added) , , , .,


      Gang 5N78 worked Monday to Friday with Saturday and Sunday as rest

days. The.gang went to work at ·6 :00 a.m. and 7:00 a.m. on account'of curfews issued by the Carrier's Transportation Department. Track time could., ·,,,, ,,

 not be secured after 1:30 p.m. ,The gang was paid eight'hours at pro rata-_ ",; T,~.,

                            2 . .~''.

rate on each day during the period in question, exclusive of its meal

 period. Based on the'scheme established by Rule 34(a),,thegang should have, taken its meal period at 10:00 a. m. and 11:00 a.m.,; respectively. The gang :. objected that this was too early to eat. Foreman K. R. Walls responded to 1 the objection of the gang and allowed it to take its meal period at 7.:00./''

 p.m. and 1:30 p.m.

 The bulletin advertising positions as prescribed in Rule 15 does not

 state or fix a time for the meal period.

 The issue to be decided in this dispute is whether the Carrier violated

 the Agreement as pertains to Claimants' meal period; and if so, what should the remedy be.

 The position of the Organization is that the Carrier violated the Agreement by not permitting Claimants to take a meal period and altering , Claimants' working hours, both without their consent. The Organization maintains that its ptlsition is ,supported by the fact that in progressing this claim, the Carrier never refuted the Organization's position in its appeal, stating ,only that this matter was identical to Award No. 68 of public Law Board 4o.·2363. Further, the·Organization maintains that there was a violation because the Division Engineer stated that no agreement wad

 made with Claimants'', rang anil,,that the Division ,Engineer had no knowledge. of

 Claimants·f gang not taking a meal period., Finallyy"·the·Osganizatioh~
maintains that it was not advised that the members of ,Claimants' gang had
 agreed to alterthe'Agreement, and they are not empowered to do so even if'

 they did agree.

 The; ppsi,tion'of~'the Carrier"',is -that it did not', violate ;the Agreement and'that·the Organization has failed to sustain its burden of proof. The Carrier contends that tie Agreen

 tpnt,,permits management and employer to agree to alter the'meAl period to's time other than that between the ending

 of the fourth hour and beginning of the seventh hour; this is precisely what Claimants and their,manager.did. ,The Carrier further contends that it is

 the employer themselves who have-this right and not the General Chairman; - nor can the General Chairman undercut the employer' decision. The Carrier also maintains that there is no meal period £ixed,by the~bulj.etin of the .,

 positions here involved.

 After review of the entire record, the Board.finds that,the Carrier did.. not violate the Agreement.

 The facts of this case are quite clear. The Organization has failed to sustain its burden o£ proving that Claimants'were required to work through their meal period and that the Carrier altered Claimants' working hours. ,

 The evidence shows that the Carrier exercised its managerial prerogative in judging when tracks could be available for work by maintenance of way gangs and its sound discretion in not having gangs work beyond the curfews set by the Transportation Department. The Carrier is, after all, in business and cannot have a curfew on its tracks at the times its trains need
 14 1 38 -/Lt
to be in operation. Therefore, it has the right to place a curfew which ends early in the day,-- here 1:30 p.m. -- thereby requiring crews to begin work early ,iii the morning. If ,this ,early start time means that the meal
            r.


period is too early to suit the preference of the gang, as it did here, the gang can''reqUesV a ii' alterationok the meal period., No meal period is fixed - by .the .Agreement or, the . bulle,tin for these positions."-. The gang's obj ections;
 to Foreman Walls as to the early meal period constituted a 'request for

 alteration of the time requirements set forth in the agreement, and Walls

 consented.

 All this activity is authorized under the Agreement. Rule 57(e) permits the entering of local understandings only'if otherwise authori the Agreement. The provisions of Rule 34 are ,just such authorization. There is no question but that it ~is pursuant to Rule 34 that the meal

 was altered to a

 zed, by~;

 period

 more agreeable time for the Claimants! gang. There is np J;

 requirement that senior Organization officials approve such an alteration.

 AWARD
Claims denied.,

 Neutral Member

 Q.ct c
 Carrier Member

 ~ga zatioci Member