ing or prosecution by the Department of Justice. The jurisdiction of the National Railroad Adjustment Board is limited by Section 3 of the Act to disputes growing out of grievances, the interpretation or application of agreements between carriers and their employes. Since no charge is made that the trainmen's agreement with the carrier was violated or that the protest involves a grievance requiring application or interpretation of any provision of an agreement, there is no basis for a proceeding before this Board."

CONCLUSION

The employes have not lifted the burden of proving that the Carriers violated the contract. They have not pointed out where the action of the Carriers amounts to a breach. That burden was carired by the employes in Award 5483 but there, unlike here, the contract contained a rule of prohibition against the action taken by the Carrier. The Board has treated similar cases where it found that the contract did not contain a provision supporting the claim and although such a provision was strongly desired by the employes and its implied presence was argued by the employes, the Board held in this language that there was no violation of the Agreement (Award 2491).

"It may be as we have indicated that the contract did not contemplate a situation arising such as we have here and for that reason provisions governing such a situation were not included. But we cannot supply that which the parties have not put in the agreement. We can only interpret the contract as it is and treat that as reserved to the carrier which is not granted to the employes by the agreement."

The claim should be denied for the reasons stated herein.

It must be obvious that the net result of the organization's contentions, if sustained, would be to give it the power of veto over the Carrier's right to readjust its operational facilities and labor demands in response to the "ebb and flow" of the traffic load, and to freeze all positions and wage rates as of a given time. The Carriers have not surrendered to that extent in this docket.

Since this is an ex parte case, this submission has been prepared without seeing the employes' statement of facts or their contention as filed with the Board, and the carrier reserves the right to make a further statement when it is informed of the contention of the petitioner, and requests an opportunity to answer in writing any allegation not answered by this submission.

All data submitted herewith in support of the Carriers' position has been presented to the employes or their duly authorized representative and is hereby made a part of the matter in dispute.

OPINION OF BOARD: In Rule 8 (a) of each of the Agreements here involved, under the caption of "RATES OF PAY" there is set forth:

Sections, as follows:" under which appears a list of sections, each identified by the name of a town, and the Foremen's Rate" and the Laborers' Rate" for each section. The rates vary.

Both of the Agreements have an identical Rule 9 which reads:

"DATE EFFECTIVE, DURATION, ETC.

"This agreement is effective May 16, 1937, and supersedes, as to employes covered hereby, all agreements heretofore in effect, and shall continue in effect until changed in accordance with the provisions of the Railway Labor Act."

Employes contend that the listed positions of section foreman were negotiated into the Agreement; and, so long as the work of a listed section remained, Carriers could not unilaterally abolish the section foreman's position listed in the Agreement. Further, Employes contend that Rule 9, of each Agreement, obligates Carriers to negotiate with Employes, as a contractual indispensable condition precedent, Carrier's contemplation of abolishing any section foreman's position, listed in the Agreements.

Carriers contend that Rule 8, in each Agreement, only binds Carriers as to rates of pay of occupants of the positions. They aver that Rules 8 and 9 do not encumber their management prerogative to determine number of employes and positions necessary to their operation.

The material facts can be succinctly stated:

1. On September 9, 1957, Kansas, Oklahoma & Gulf Railway Company, herein called ROG, issued a notice abolishing four section foremen's positions, effective September 13, 1957, and assigned the work of the four sections to two of the remaining sections listed in Rule 8. Thereafter, on November 1, 1957, KOG posted a notice abolishing a fifth section foreman's position, effective November 4, 1957, and assigned the work of the abolished section to and between two remaining sections listed in Rule 8. These actions were undertaken by KOG absent negotiation with Employes.

2. Midland Valley Railroad Company, herein called Midland, abolished two section foreman's positions listed in Rule 8, effective October 1, 1957. It assigned the work of the two sections to a remaining section listed in Rule 8. These actions were undertaken by Midland absent negotiation with Employes.

In essence, the Claim and issues in the instant case are like those in Award No. 1296 (1940). In that case, as here, the sections are listed in the Agreement with rate of the foreman's position on each section; and the termination clause is identical to that in Rule 9 of the Agreements now under scrutiny. The Board found in Award No. 1296:

"When an agreement lists the positions together with the rates of pay attached to these positions, and then provides that these rates of pay shall continue until changed by certain procedure, we are of the opinion that it is as much of a violation of the agreement to abolish the position when the work remains and assign the work to someone else without following the specified procedure as it would be to change the rate of pay in an unauthorized manner."

Award No. 1296 is controlling precedent. With it as authority we find that Carriers violated the Agreements, here being interpreted, when they abolished section foremen's positions without following the procedures specified in Rule 9 of each Agreement.

The Claim in Award No. 1296 contains, in its paragraph "second," a prayer for an award of damages which is in substance the same as that in paragraph (2) of the instant claim. It prayed not only that the occupants of the abolished section foremen's position be restored to their positions and made whole; but, also, "that employes who were adversely affected by the elimination of the . . . foremen's positions" be made whole. Although in Award No. 1296 the claim was sustained in its entirety, it is to be noted that the Award issued almost fourteen years before the execution of the National Agreement

of August 21, 1954. Applying Article V, Section 1 (a) of the said National Agreement we find that the prayer "that employes (other than the foremen) who were adversely affected by the elimination of the seven foremen's positions" be reimbursed, is too vague, indefinite and uncertain. As to them, we dismiss the claim. Cf., Award No. 11156. In all other respects we will sustain 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 Carriers violated the Agreements.

AWARD