of its jurisdiction, as established in the Railway Labor Act, as well as the provisions and the meaning, intent, and spirit of that act, and in effect, arbi. trarily abrogate an agreement all of us are legally and morally bound o observe anb respect.

CONCLUSION

The Carrier has shown that the purported claim has not been handled in the usual manner and within the prescribed time limit; that the case involves a request for change of agreement, over which the Board is not given jurisdiction; that if there was a basis for such a claim, claimants have slept on their rights, are barred by laches and stale demands, and are estopped at this late date from claiming a different title and rate than they agreed upon in 1939; that such a claim was foreclosed by agreement, and all such questions disposed of, as confirmed by letter of October 4, 1939; that if a change in that agreement is warranted by the circumstances, the proper procedure is for the Organization to request and endeavor to negotiate a change, in the manner prescribed by agreement and the Railway Labor Act; that the position of the Organization in any and all events, is untenable and without basis in rule and practice.

OPINION OF BOARD: At the outset the Carrier's contention this claim was not properly handled on the property in direct negotiations and its challenge to the jurisdiction and right of this Board to resolve this dispute is rejected. The questions raised in connection therewith have been disposed of in Awards 137 and 2724 also Docket 2774, Award 2809, and no sound reason is advanced as to why those decisions should be repudiated or the principles announced therein set aside. The dispute is properly here and will be disposed of on its merits.

The claim of the Brotherhood is that work performed or positions occupied by employes G. W. Bray and A. P. Flores in the Houston General Stores are those of Caboose Supplymen, for which there is an agreed upon rate of 53 cents per hour (this rate later, by agreements of the parties, increased to 72 cents). They are now classified and rated as Countermen, 441/2 cents per hour (present rate 63sYz cents). These employes occupy what are known as the second and third tricks, hours 3:00 P. M. to 11:00 P. M., and 11:00 P. M. to 7:00 A. M., respectively. The first trick is classified and rated as Caboose Supplyman, rate 72 cents per hour. The three positions furnish 24-hour, or around the clock, service in checking and supplying cabooses. They are located in what is known as the Caboose Supply House, a small structure separate and apart from the main store buildings.

The Petitioner asks this Board to classify the two Countermen as Caboose Supplymen, alleging that the Carrier in refusing to do so has violated the rules of the current Agreement, effective November 1, 1939. It is conceded by all parties the work performed by both Caboose Supplymen and Countermen is covered by the terms of such Contract. In our opinion rules appearing therein which are vital to a determination of the issue raised by the parties are Rule 45, which reads:

Important also for our purposes is the Wage Agreement negotiated between the parties and effective November 1, 1939. By reference to it we believe it can be fairly concluded that among other positions in the Houston General Stores, it covered one Caboose Supplyman, rate 53 cents per hour and two Countermen, rate 44s/z cents per hour.

Aside from what has been related, other outstanding and undisputed facts are that the three positions to which reference has been made have been in existence for more than 15 years during all of which time there has been no material or substantial change in the duties thereof.

Irrespective of the many arguments advanced by the parties in support of their respective positions we believe the one decisive question involved in this controversy is whether the three positions in the Houston General Stores have been and are now properly classified and rated by the Carrier.

As we approach the solution of the problem it is necessary to go back 15 years to the time when the positions of Caboose Supplymen and Countermen were first created and classified at Houston by the Carrier. Then, and now, the duties required of a Caboose Supplyman were to maintain records and keep in stock in the Caboose Supply House materials and supplies that were to be issued and supplied cabooses during his tour of duty as well as the tour of duty of the other two employes and in addition to supply cabooses. Then, as now, the duties of the positions occupied by the two employes just mentioned were to furnish and supply cabooses with the supplies made available in the Caboose Supply House for that purpose. True enough, the Caboose Supplyman performed all the duties of the Countermen but, in addition he performed and has continued to do so in his position, other work of greater magnitude and involving far more responsibility. If proof of the diversity in character of the two positions as classified be needed it can be found in the fact, which is not denied, that Flores, one of these very claimants, was at one time assigned to the position of Caboose Supplyman and asked to be relieved of the job because of its added responsibilities. That fact in itself is, in our judgment, especially significant in a determination of the factual situation. The criterion for determining whether positions are so similar in kind and class as to require a like rating is not to be found in the title by which the position is classified but in the relativity of their responsibilities and duties. It may well be that the positions when created could have been more happily described but that in itself would not result in a situation where it could successfully be maintained they were of like character. So with respect to the three positions in the Caboose Supply Depot, we hold they were not improperly classified at the time of their creation. We hold likewise with respect to their present status. The Wage Agreement to which we have referred providing for continuation of rates of pay then in effect, while in itself not decisive of the question, indicates that at the time it and the current Agreement were entered into the parties recognized a distinction in the positions of Caboose Supplyman and Counterman. Of course, neither the existence of the Wage Agreement nor Rule 45 of the Contract would bind the Petitioner if in fact it could be shown the Countermen had assumed and were performing the greater responsibilities and duties of the Caboose Supplyman. But that, as we have heretofore indicated, we do not believe they are doing.

Without further discussion we hold, under the facts and circumstances disclosed by the record, the position of Caboose Supplyman is separate and distinct in character from that of Counterman in the Caboose Supply Depot at Houston, and that in classifying and rating the positions in that manner there has been no violation of the current Agreement.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

AWARD