PROCEEDINGS BEFORE SPECIAL BOARD OF ADJUSTMENT NO. 1016
Carrier Member: J. H. Burton Labor Member: S. V. Powers
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
CONSOLIDATED RAIL CORPORATION
Claim of the System Committee of the Brotherhood that:
(1) The Agreement was violated when the Carrier failed to compensate Camp Car Cook Kimla for overtime service he performed on
April 4, 5, 6, 7, 11, 12, 13, 14 and 18, 1988 (System Docket CR3795).
(2) The Agreement was also violated when on the above-cited dates
the Carrier required the Claimant to suspend work for the purpose
of absorbing overtime.
(3) As a consequence of the violations referred to in either Part
1 and/or Part 2 above, the Claimant shall be allowed twenty-five
(25) hours' pay at his time and one-half overtime rate of pay.
FINDINGS:
Upon the whole record and all the evidence, and after
hearing on August 17, 1989, in the Carrier's office, Philadelphia, Pennsylvania, the Board finds that the parties herein are
Carrier and Employees within the meaning of the Railway Labor Act,
as amended, and that this Board is duly constituted by agreement
and has jurisdiction of the parties and of the subject matter.
OPINION
This case arises from a claim by a Camp Car Cook who
FRED BLACKWELL
alleges that the Carrier has improperly failed to compensate him
ATTORNEY AT LAW
19129 ROMAN WAY
1
GAffHERSBUiG,
MARYLAND 20879
(3011 9n-5000
SBA No. 1016 / Award No. 46 - Case No. 46
for end-of-shift and pre-shift overtime service performed on nine
I
(9) claim dates in April 1988. The requested remedy is that the
Carrier be directed to compensate the Claimant for twenty-five
(25) hours at his overtime rate.
The Organization asserts that the claim is governed by
and is valid under the Scope Rule, and Rules 9, 10, 11, and 16 of
the Agreement between Conrail and BMWE.
The Carrier asserts that the claim is governed by Rule 24
(c) of the parties' Agreement; that the Claimant has been properly
paid under that Rule for all wages due him for the service he performed on the April claim dates; and that .on this basis, the claim
should be denied.
The facts pertinent to the dispute arose in Altoona,
Pennsylvania, whereat the Claimant held a Camp Car Cook position
in Tie Gang 212 at all times herein pertinent. He was assigned by
bulletin to a regular work week of ten (10) hours a day, Monday
through Thursday, 7 A.M. to 5:30 P.M., with a thirty (30) minute
meal period and with Friday, Saturday, and Sunday rest days. The
claimed overtime payment is for time spent by the Claimant outside
Gang 212's advertised tour, in the preparation of breakfast and
dinner meals for the Gang on various dates between April 4 through
18, 1988.
The Claimant was informed by his Supervisor that he would
have three (3) hours free time on each claim date, from 9 A.M. to
FRED BLACKWELL
ATTORNEY AT LAW
12 Noon. (The other Cook on the Gang was given three hours free
19129 ROMAN WAY
2
GAITHERSBURG,
MARYLAND 20879
(9oil en-5000
SBA No. 1016 / Award No. 46 - Case No. 46
time, from 10 A.M. to 1 P.M.) The Gang did not work any overtime
hours on the dates in question.
The Claimant received straight time pay for ten (10)
hours per day for this service on the claim dates, which is the
same pay basis as the one used to compensate the Gang to which he
was assigned. His claim for overtime was denied on the ground
that he had been properly compensated under Rule 24 (c) on the
same basis as the Gang to which he was assigned was compensated:
and that since the Gang was not paid overtime, Rule 24 (c) does
not require overtime compensation to be paid to the Claimant Camp
Car Cook.
After due study of the foregoing and of the whole record,
inclusive of the submissions presented by the parties in support
of their respective positions in the case, the Board finds that
the claim is supported by the Rules cited by the organization,
particularly Rule 11. The Board therefore rejects the Carrier's
contention that Rule 24 (c) supports the Carrier's refusal to compensate the Claimant at his overtime rate for his pre-shift and
post-shift work of preparing meals on the dates in question. Accordingly, the claim is found to be meritorious and it will be
sustained.
The facts from which the claim arises are clear and un-
disputed. The Carrier properly exercised its Rule 10 (i) author
FRED BLACKWELL
ATTORNEY ATLAW
ity to establish a four (4) day work week for Tie Gang 212, locat-
19129 ROMAN WAY
GARHERSBURO.
MARYLAND 20879
(a0119n-soon
SBA No. 1016 / Award No. 46 - Case No. 46
ed in Altoona, Pennsylvania, with tours of ten (10) straight time]
hours each day. 7 A.M. - 5:30 P.M., with a thirty (30) minute meal
period. The Claimant prepared Gang meals before and after the ten
hour tour of 7 A.M. - 5:30 P.M. on the various claim dates in April 1988; and the Claimant was allowed three (3) hours of unrestricted free time on each claim date, from 9 A.M. til 12 Noon.
The Gang did not work more than ten (10) hours on any of the claim
dates.
These facts entitle the Claimant to payment of overtime
under Rule il for the time spent in the preparation of Gang' meals
on the claim dates, and Rule 24 does not negate such entitlement.
Rules 11 and 24, in pertinent part read as follows:
"RULE 11 - OVERTIME
(a) Time worked preceding or following and continuous with a regularly assigned work period shall be computed on the actual minute basis and paid for at time and
one-half rates, with double time computed on the actual
minute basis after sixteen (16) continuous hours of work
in any 24 hour period computed from the starting time of
the employee's regular shift.
(i) An employee will not be required to suspend
work for the purpose of absorbing overtime."
"RULE 24 - MEAL ALLOWANCE
(c)...Camp Cooks and Camp Car Attendants shall
receive their daily rate as compensation for each day
their gang works eight (9) hours (ten (10) hours for four
(4) day gangs). Except as stipulated in note below, on
any day that their gang works more than eight (8) hours
or ten (10) hours for four (4) day gangs, Camp Cooks and
Camp Car Attendants shall be paid for time over eight (8)
FRED BLACKWELL
hours, or ten (10) hours, worked by their gang at the
ATTORNEY ATLPW
time and one-half rate, with double time computed on
19129 ROMAN WAY
4
GNTHERSBURG,
MARYLAND 20879
(301) 977.5000
i
SBA No. 1016 / Award No. 46 - Case No. 46
actual minute basis after sixteen (16) continuous hours
of work in any twenty-four (24) hour period, computed
from starting time of the gang.
NOTE: The intent of this section is that if a gang
works only eight (8) hours the camp Cooks and
Camp Car Attendants will receive only eight
(8) hours' pay, but if the gang works ten
(lo)
hours the Camp Cooks and Camp Car Attendants will receive two (2) hours' overtime
the same as the gang. If the gang completes
its day's work and has its evening meal, and'
the Camp Cooks and Camp Car Attendants are
not required to remain on duty and prepare an
additional meal, their time will be stopped.
On the other hand, if the Camp Cooks and Camp
Car Attendants are required to remain on duty
and prepare other meals during the night for
part or all of the gang which works during
overtime hours, then the Camp Cooks and Camp
Car Attendants will be paid overtime to the
time of their release."
In analyzing these rules it is readily apparent that Rule
11 (a), by specific unambiguous language, sets out a requirement
that time worked preceding or following and continuous with a
"regularly assigned work period" shall be paid for at time and
one-half rates. The fact that the Claimant prepared Gang meals
before and following his regularly assigned ten (10) hours daily
work period comes within this requirement, so as to entitle the
Claimant to overtime pay for the pre and post-shift preparation of
meals.
It is also readily apparent that Rule 11 (i), by specific
unambiguous language, sets out a prohibition against an Employee
being required to suspend work for the purpose of absorbing overtime. This prohibition, as applied here, nullifies the Carrier's
FRED BLACKWELL
ATTORNEY ATLPYI
attempt to swap or offset the declared allowance to the Claimant
19129 ROMAN
war
g
GAITHERSBURG,
MARYLAND 20879
(301) 9n.sooo
SBA No. 1016 / Award No. 46 - Case No. 46
of three (3) hours of unrestricted free time, 9 A.M. to 12 Noon,
for the time he was required to prepare meals outside the hours of
his assignment. To permit the allowance of such free time to disentitle an Employee to overtime payments, is exactly what Rule 11
(i) is intended to prevent: because, otherwise, the Carrier would
be in position to exact work time from an Employee without his
consent and without making contractually required payments therefor. Rule 11 (i), in sum, requires the Claimant's work day on the
April claim dates to be viewed as being comprised of the Claimant's regular ten (10) hour straight time day, plus whatever'additional time he spent preparing Gang meals before or after his ten
hour tour.
The Carrier's contrary arguments on the claim, as previously noted, have been considered by the Board and found unpersuasive. The Carrier submits, for example, that the Claimant did
not suspend work as contemplated by Rule 11, because the nature of
his duties in preparing meals was such that the work did not exist
continuously. The apparent reasoning here is that because food
preparation work is performed on a non-continuous basis, the allowance of three hours of free time daily to the Claimant, had the
effect of cancelling out a like amount of claimed overtime by the
Claimant, without running afoul of the Rule 11 (i) prohibition
against suspending work to absorb overtime.
One of the flaws in this proposition is that the Claim-
FRED BLACKWELL
A17OFNEY ATLAW
ant's regular work assignment was in no way tied to whether the
19129 ROMAN WAY
6
GAITHERSBURG,
MARYLAND 20879
(301( 977-58W
n
SBA No. 1016 / Award No. 46 - Case No. 46
work of preparing meals exist continuously or non-continuously.
Since ten (10) hours daily, four (4) days a week, is the bulletined tour of duty of the Claimant, this fact is the governing consideration under Rule 11 (i), i.e., he cannot be required to suspend work during this ten hour daily tour of duty for the purpose
of absorbing overtime. The manner in which the cooking tasks meld
with one another during the ten hour period, has no bearing on
whether a prohibited suspension of work occurs. The three (3)
hours of designated unrestricted free time, from 9 A.M. to 12
Noon, self-evidently was used by the Carrier as a basis for-denying the Claimant overtime pay for preparing Gang meals before and
after his regular tour and as such it is interdicted by Rule 11
(i).
The Carrier's contention that the Claimant was properly
paid under Rule 24 (c), is also rejected. Analysis of Rule 24 (c)
reveals that it is a method of pay rule which requires that Camp
Car Cooks and Camp Car Attendants shall be paid at their overtime
rate for the time over eight (8) hours or ten hours worked by
their Gang at the time and one-half rate. This provision for
overtime payments to Camp Car Cooks and Camp Car Attendants is not
geared to the overtime hours worked by the Cooks and Attendants,
themselves; it is geared to the overtime hours worked by their
Gang. The rule, on its face, does not purport to prescribe,
either expressly or by implication, the method of payment for
FRED BLACKWELL
A7TQRNEYAILAW
overtime hours worked by the Camp Car Cooks and the Camp Car At-
19129 ROMAN WAY
GARHEASBURG,
MARYLAND 20879
1301) 977-5000
SBA No. 1016 / Award No. 46 - Case No. 46
tendants. In addition, there is nothing in the text of the rule
which negates the application to Camp Car Cooks and Camp Car Attendants of the overtime payment provisions in Rule 11 (a) ana
(i), or which could be read as excepting Camp Car Cooks and Camp
Car Attendants from the requirements of Rule 11 (a) and (i).
In conclusion, the Board observes that the alleged acquiescence for a long period of time by the organization in the
Carrier's treatment of Rule 24 (c) as governing the compensation
of Camp Car Cooks and Camp Car Attendants, does not serve to bar
the instant claim. The rules relied upon by the Organization, and
found supportive of the claim by the Board, are specific and unambiguous and as such they merit enforcement at this time.
Moreover, the Board notes that the last paragraph of Rule
29 (c), contains an express prohibition against overtime payment
to Camp Car Cooks and Camp Car Attendants where some of the Gang
may work after regular hours, and after the evening meal is served, unless the Camp Car Cook and Camp Car Attendants are in fact
required to perform service. In view of this express exception to
the rule requirements of overtime payments to Camp Cooks and Camp
Car Attendants, the Board observes that the overtime prohibition
urged by the Carrier in this case could have readily been included
in that same paragraph of Rule 29 (c), if such had in fact been
the parties intention. The Board therefore finds that there is no
basis for finding that the Camp Car Cook in this case is barred by
FRED BLACKWELL
ATTORNEY ATLNV
Rule 24 (c) from receiving overtime pay for preparation of Gang
19129 ROMAN VwY g
GAITHERSBURG,
MARYLAND 20879
(301) 977.5099
SBA No. 1016 / Award No. 46 - Case No. 46
eals before and after his regular tour of duty.
In view of the foregoing, and for the reasons indicated,
he claim will be sustained.
WAR
Claim sustained as per the Opinion.
BY ORDER OF SPECIAL BOARD OF ADJUSTMENT NO. 1016
/. i
Fred Blackwell, Neutral Member
~issent attacne
S. V. Powers, Labor Member J. H. Burton, Carrier Member
xecuted on
~~
, 1991
FRED BLACKWELL
ATTQRNY AT LAW
19129 ROMAN PRY
9
GArTH6iSBURG,
MARYIAND 20&79
(301) 977·5000
SBA No. 1016 / Award No. 46 - Case No. 46
ADDENDUM BY REFEREE BLACKWELL
Despite extensive discussion of foregoing proposed Award
No. 46, Case 46, in the Executive Session conducted by the Board
in Carrier's offices, Philadelphia, Pennsylvania, on August 22,
1990, nothing presented in that discussion provides a persuasive
asis for changing any of the findings in the proposed Award.
The Carrier, for example, suggested that the Award's compensatory remedy, which is based on current liability for payment
thereof, should be changed to an award geared to prospective/future liability for overtime claims of the type in dispute. Although prospective liability may be warranted in appropriate circumstances, there is no basis in the confronting record for changing the herein award to an award that seeks to impose prospective
liability in regard to the disputed claims.
The Carrier also objected to the Board's application of
the rules to the overtime claims, with particular emphasis on Rule
24 (c) and Rule 11.
In this regard the Opinion in proposed Award No. 46 found
that Rule 24 (c), the Rule relied upon by Carrier in denying the
Camp Car Cook's claim for overtime payment, speaks to circumstances in which Camp Car Cooks are entitled to overtime pay when
their Gang works overtime or works more than eight (8) or ten (10)
hours. The Opinion further found that Rule 24 (c) is not geared
to overtime hours worked by the Cooks themselves and that Rule 11 -
cannot be read as excepting Cooks from the provisions of Rule 11
(a) which require overtime pay for work before or after, and contiguous with a regular shift, or from Rule 11 (i) which prohibits
an Employee from being required "to suspend work for the purpose
of absorbing overtime."
The opinion thus made findings that Rule 11 (i) nullified
the Carrier's attempt to make the unilaterally provided three (3)
FRED BLACKWELL
ours of free time to the Claimant-Cook, an offset against the
ATTORNEY ATWN
time entailed in meal preparation outside the hours of his assign-
19129 ROMAN WAY
10
GuD1eRSBUAG.
MARYLAND 20879
(301) 977-5808
·i
SBA No. 1016 / Award No. 46 - Case No. 46
ent) and that the time so spent in food preparation, outside the
ours of his regular assignment, was encompassed by the Rule 11
(a) overtime pay requirements.
The Board thus found no conflict between Rule 24 (c) and
Rule 11; both rules require overtime pay to Cooks and Camp Car Atendants but in different circumstances and conditions under each
rule. Furthermore, although Rule 24 (c) may have been applied by
he Carrier in some similar situations in the past, when confronted with the clear, concise, and unambiguous language of the text
f herein Rule 11, such prior application must give way to the
pecific text of Rule 11 that requires payment of the disputed
vertime by clear, unambiguous language. Indeed, the principle
hat a rule that is clear and unambiguous may be invoked by either
arty at any time notwithstanding any alleged practice to the contrary, is so well settled that citation of authority is not necesary. Accordingly, since the Board has found that the applicable
rovisions of Rule 11 are not in conflict with Rule 24 (c) or any
ther Agreement provision cited of record, it is therefore proper
for the Board to sustain the organization's request for enforcement of the specific requirements of Rule 11.
Frederick R. Blackwell, Chairman/Neutral
Special Board of Adjustment No. 1016
:ONRAIL\1016\AMDT-46.402
FRED BLACKWELL
ATTORNEY AT LAW
19129 ROMAN WAY
GAITHERSBURG,
MARYLAND 28879
(301) 9n-sooo
SBA NO. 1016 - AWARD NO. 46
CARRIER MEMBER'S DISSENT:
The majority's error is its belief that the involved rules are
"readily apparent" or "unambiguous." They are neither. In
Carrier's view, the parties to the agreement intended that
Rule 24, paragraph (c), cover the basis of overtime pay for the
unique position of camp car cook. This intent was amply borne
out by the long standing practice on this property and the
predecessor rule under the Pennsylvania Railroad Schedule
Agreement. This Board's decision to ignore the parties' actual
intent and apply literally two overtime rules results in an
unintended windfall to one class of employees. I therefore
J1 H. Carrier Member
April 19, 1991