meals in road local service
there has been much 'yard office' discussion about our entitlement to meal periods or payments in lieu thereof. the practice in buffalo has been to either grant the meal period or approve an 'ly' payment of an hour at time-and-one-half. management has recently taken to the practice of affording the meal period at the end of the tour of duty under the mistaken belief that this will satisfy their obligations. we have written (former) superintendent fannon as well as superintendent moore to explain the carrier's obligations.
there has been much discussion lately as to the entitlements and desires of the lunch period associated with the local traveling switchers (lts) within the buffalo terminal. remember that the general committee has been involved with on going discussions / arguments with the carrier regarding the basic right of taking lunch.
there are several board awards that out line the premise of the organizations position that local traveling switchers are allowed the following:
· lunch within 4 ½ to 6 hours from time on duty (public law board 1302 and 6003) · clean facilities and responsibility of provisions by the carrier (public law board 4061)
· 1:00 at time and one half compensation for not taking a lunch (first division award 24510)
· 4:00 penalty when a lunch period is given late (first division award 24510)
· 8:00 penalty when either a lunch is denied or no form of compensation is given (third division award 31562 infractions that are silent to penalty)
the purpose of the meal period, ironically, is not to feed the crew, but to get the crew off of the train and into a clean environment. if this was not the case, the carrier would, and has attempted, to put crews to lunch on an engine sitting still.
public law board 1302 defines a lts as, " similar to yard work, i.e., switching boxcars, spotting industries, etc." since an lts is similar to yard service, the applicable rule but not the compensation, for lunch will apply to these assignments. that is, that an lts crew is to be put into lunch within 4 ½ to 6 hours of on duty time. it also provides a compensation in some form for each time a crew is worked over 6 hours without a lunch or meal period.
first division award 24510 again agrees that crews should be allowed to eat. this award further defines the rate of compensation at 1:00 at the pro rata rata rate (time and one half). more significantly, it actually warns the carriers, " the carrier should be mindful that if in the future the violations are found to be flagrant, the penalty may be more severe." this opens the door for the 4:00 hour late lunch and 8:00 denial or non-compensated lunch.
public law board 6003 once again concurs with other board's findings that crews should be allowed to eat in lts service. in fact the award states, " there is nothing in the record which would justify the complete denial of the meal period for the entire shift " it further makes reference to first division award 24510, "one such decision included a recommendation that if such violations continued, a greater penalty (four hours) should be imposed."
third division award 31562 supports the organization that an infraction or damage to current agreements that are caused by the carrier, but silent to penalty are subject fine or punishment. the standard penalty or fine is one days pay or 8:00. since an infraction in caused by the carrier for withdrawing compensation after payment or totally denying compensation while working without a meal period / break, an 8:00 penalty is justifiable.
the act of lts crews that continue to work into a late meal period or without compensation is considered an act of flagrancy. it is with this reasoning and the protection of the national railroad arbitration board that the organization will claim 4:00 at the pro rata rate (straight time) for a late lunch, and 8:00 for no lunch.
public law board 4061 states that there is no ruling at this time that allows for a crew to leave the carrier property while under pay. the carrier is not responsible for providing food or a full service facility, but rather providing chilled storage for food such as a refrigerator and a clean environment to consume it in.
it is to the benefit of the carrier to either allow the crew a lunch period or deny the lunch period with compensation in accordance with first division award 24510.
it is important for everyone to understand what our contractual and legal rights are. meal periods are required in the state of new york as per section 162 of the states labor laws:
section 162. time allowed for meals.
1. every person employed in or in connection with a factory shall be allowed at least sixty minutes for the noon day meal.
2. every person employed in or in connection with a mercantile or other establishment or occupation coming under the provisions of this chapter shall be allowed at least thirty minutes for the noon day meal, except as in this chapter otherwise provided. the noon day meal period is recognized as extending from eleven o'clock in the morning to two o'clock in the afternoon. an employee who works a shift of more than six hours which extends over the noon day meal period is entitled to at least thirty minutes off whin that period for the meal period.
3. every person employed for a period or shift starting before eleven o'clock in the morning and continuing later than seven o'clock in the evening shall be allowed as additional meal period of at least twenty minutes between five and seven o'clock in the evening.
4. every person employed for a period or shift of more than six hours starting between the hours of one o'clock in the afternoon and six o'clock in the morning, shall be allowed at least sixty minutes for a meal period when employed in or in connection with a factory, and forty-five minutes for a meal period when employed in or in connection with a mercantile or other establishment or occupation coming under the provisions of this chapter, at a time midway between the beginning and end of such employment.
5. the commissioner may permit a shorter time to be fixed for meal periods than hereinbefore provided. the permit therefor shall be in writing and shall be kept conspicuously posted in the main entrance of the establishment. such permit may be revoked at any time.
our agreement with the ns for the nickel plate territory is fully consistent with this provision of public law. article 42, section 1, provides:
engineers on work trains, locals or switch runs, will be given a reasonable time to eat. it is understood that conductors will advise the dispatcher before taking time out to eat, and that this eating period will be taken at a time that will cause the least delay to trains or to maintenance-of-way forces.
while this rule does not establish the timing of such meal periods, i.e. in the middle of the tour of duty as opposed to the end, and hence no penalty for a 'late lunch' (that's a yard article only), we do have several options available:
- when not granted a meal at all, make sure the yardmaster notes that fact on their sheet so that an 'ly' claim can be promptly paid or,
- submit a 'pe' claim for eight hours and be prepared to wait the time, currently 2 years or so, for the appeal process.
- if abuses persist, we will seek enforcement action through the state of new york's department of labor.
- don't argue with management or quote these agreements/laws over the radio. just note what you are told to do or not to do, who told you to do it and when you were told.
also note that meal periods are not to be taken on the engine. the meal period needs to be taken in a clean facility, such as a yard office or lunch room. if you would like to pursue the 'pe' claim, follow the steps below to perfect the claim:
1. make a timely request to be granted a meal period and note who and when the request was made,
2. if the meal period is not granted, note when you could have been granted the time without tying things up, i.e. if you were in the clear in a yard or in a holding pattern somewhere.
3. a sample claim is as follows:
"allow eight hours account not being afforded a meal period in road local (or switch local) service. asked yardmaster hinchy at 9:00 am on radio channel #76-76 to be afforded a meal period when we finished delivering the d&h interchange. we were not afforded this meal period even though we were back at bison yard at 2:00 pm with our power in the clear."
as with all miscellaneous claims, always print a copy of the claim and your remarks. when you get a denial (on payday, not just in the pending pay screen), send me a copy either in the mail or in locker #82 at bison yard office.
please note that, because of the interdivisional service agreement, the penalty for being denied a meal period in the buffalo / cleveland (bv), buffalo / renovo (br), buffalo / toledo (ba) or buffalo / binghamton (bb) pools is only $1.50 (the 'im' claim) and a 'pe' claim cannot be collected.
feel free to contact me at any time or simply e-mail me your concerns.