Except as herein expressly admitted, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them deny each and every, all and singular, the allegations of the Organization and Employes in alleged unadjusted dispute, claim or grievance.

For each and all of the foregoing reasons, the Missouri-Kansas-Texas Railroad Company and Missouri-Kansas-Texas Railroad Company of Texas, and each of them, respectfully request the Third Division, National Railroad Adjustment Board, deny said claim, and grant said Railroad Companies, and each of them, such other relief to which they may be entitled.

(Exhibits not reproduced.)

OPINION OF BOARD: The Carrier has stationed at Parsons. Kansas on the Northern Division of the Railroad, a regularly assigned B&B gang, with outfit cars, under the supervision of B&B Foreman C. H. Watson. It assigned to this gang a job at Emporia, Kansas, a station on the Northern Division. The job was to lay concrete sidewalk in front of the freight station, anal tearing out and renewing an inclined ramp to the freight docks.

Outfit cars were sent from Parsons to Emporia-a distance of 125 mileson September 28, 1955, and Lead B&B Mechanic Ralph Cunningham and three B&B Mechanics, of the Parsons gang, were instructed to report for work at Emporia the morning of September 29, 1955. They did so, reporting to B&B Foreman Watson who spent September 29 and 30 at Emporia, laying out the work, supervising and directing the job. Foreman Watson also was at the job site on October 6, 7, 12 and 13, supervising the project.

Petitioner contends that: (1) Lead Mechanic Cunningham performed the duties of a B&B Foreman on the Emporia job; (2) the jobs at Emporia should have been bulletined; and (3) Claimant having greater seniority than Cunningham should have been placed on the job as foreman. Carrier responds that: (1) the Emporia job was properly assigned to Foreman Watson's gang; (2) Foreman Watson supervised the job and fulfilled all the duties of foreman; (3) Mechanic Cunningham did not perform the duties of foreman but only the duties usually performed by a Lead Mechanic; (4) managements prerogative to determine the degree of supervision which it deemed necessary on the Emporia job is not encumbered by the Agreement between it and Petitioner; and (5) bulletining the jobs was not required by the Agreement since no new jobs were created.

For Petitioner to prevail it must prove either: (1) Mechanic Cunningham did perform the duties of a B&B Foreman on the job; or, (2) the Agreement required Carrier to assign a full-time B&B Foreman, in addition to Foreman Watson, to supervise the job. It is undisputed that if either of these ultimate facts is proven that Claimant, by virtue of his seniority, would have rated the assignment.

It is controverted as to whether B&B Lead Mechanic Cunningham acted as foreman on the job.

On October 29, 1955, Cunningham filed a claim with Carrier alleging that he acted as foreman on the job and seeking payment by Carrier to him of an amount equal to the difference between foreman and lead mechanic wages for the period he was on the job. This, Carrier declined on December 5, 1955. No appeal was taken. Other than Cunningham's allegation, in his claim, that he acted as foreman there is no evidence in the record to prove he did

in fact perform the duties of a B&B Foreman. The Carrier, on the other hand, has detailed in the record the duties of a B&B Foreman and avers, without contradiction, that these duties pertaining to the job were executed by Foreman Watson. We, find, therefore, that Mechanic Cunningham did not perform the duties of a B&B Foreman on the job.

Claimant first filed his claim with Carrier on November 15, 1955. It is predicated on the proposition that Lead Mechanic Cunningham had acted as foreman on the Emporia job and the position should have been assigned, by right of seniority, to Claimant.

We now come to the issue as to whether the Agreement required Carrier to assign a full-time B&B Foreman to a group such as that sent to Emporia. We find no provision in the Agreement which prescribes under what circumstances Carrier will be required to assign a full-time B&B Foreman to a B&B unit. In the absence of such a prescription Carrier retains the right to unilaterally determine what supervision is necessary. Consequently, we find that the Agreement did not require Carrier to assign a full-time B&B Foreman to the Emporia job.

As to bulletining the positions of the Emporia assignment we find no provision of the Agreement which would require such action under the facts of this case.

Upon the basis of the foregoing findings and conclusions we will deny the claim.

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

That the Carrier did not violate the Agreement.

AWARD