NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
The Carrier has shown that the matter in dispute is not one for adjudication by your Honorable Board; that the Carrier is not required by the applicable Agreement to reclassify the positions and rates of pay in question; and that the unnamed Claimants are not entitled to the alleged loss of earnings which is claimed.
Therefore, the Carrier respectfully submits that your Honorable Board should dismiss the claim of the employes in this matter.
All data contained herein have been presented to the employes involved or to their duly authorized representative.
OPINION Or BOARD: Claimants are assigned positions as assistant foreman telegraph and signals on the second and third tricks at the carrier's station in New York.
Claimants contend that they are entitled to pay at a foreman's rate, rather than that of an assistant foreman, as of January 1, 1949.
Since June 1, 1943, and prior thereto, two foremen, one of construction and one of maintenance, with an assistant foreman, were assigned to the first trick. An assistant foreman maintenance was assigned to the second trick, and an assistant foreman maintenance-construction was assigned to the third trick. The assistant foremen on the second and third tricks reported to and received their orders from the foremen.
The claimants contend that they were doing the work of foremen and should receive foremen's pay, and that Article 1, Section 1, of the Agreement was violated. The last-cited Article provides in part:
Attention is called to Article 5, Section 9 (a), effective June 1, 1950_ We need not consider this section, since it is not applicable to the claim in dispute. This dispute arose prior to its effective date of this section.
The positions involved herein were classified June 1, 1943, and the same classification was again given the positions when the Agreement was revised September 1, 1949.
It is well settled that this Board cannot make rules. Its function is to· interpret the Agreement as written, and apply the Agreement to the facts of a particular case.
It is necessary for the claimants to make out and prove their caseIn the claim at bar it was necessary that the claimants prove that they had been performing the duties of a foreman. This burden was upon them.
From the record, they have failed in their burden of proof. There is no showing that the duties of assistant foreman on the second and third tricks, as performed on June 1, 1943, are any different than those performed on 6096-12 1288
the date this claim was filed. The mere fact that there may be less employes under the foreman and assistant foreman does not mean in and of itself that their work was increased. Nor does the fact that there was no foreman assigned to their tricks mean that they are performing the work of a foreman, because, under the Agreement, they could be assisting a foreman who is responsible for the work of all three tricks even though the foreman was assigned to one trick. The record does reveal that the assistant foremen reported to and received their instructions from the foreman assigned to cover the territory. And we must assume, until the contrary is shown, that the foremen are performing the duties as called for under Article 1, Section 1.
The claimants have not shown that they are performing the duties of a foreman. They have shown no change of working condition from that existing at the time the Agreement was originally entered into and when it was revised.
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;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and