STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: On April 7, 1958, the Carrier assigned Track Supervisor M. C. Chitty to supervise Track Laborers F. Salters and W. King, who were regularly assigned on M S Gang No. 2 and Track Laborer H. Lewis, who was assigned to Section No. 1 at Millen, Ga., in the performance of the work of picking up or loading old cross ties and other scrap track material on a work train operated on the Savannah Division between Macon and Tennille, Georgia, on that date.
The Claimant, Mr. Carlton Murphy, who holds seniority as a Track (Section and Extra Gang) Foreman on the Savannah Division, but who was in furloughed status, was available, fully qualified and could have performed the extra gang foreman's duties assigned to the track supervisor.
The Agreement violation was protested and the instant claim filed in behalf of the Claimant. The Claim was declined as well as all subsequent appeals.
The Agreement in effect between the two parties to this dispute dated September 1, 1949, together with supplements, amendments, and interpretations thereto is by reference made a part of this Statement of Facts.
For example, in Third Division Award No. 6007, Referee Messmore, it was held:
And there are many more identical awards on this point, such as Third Division Nos. 7870, 7718, 7653, 7440, 7422, 7153, 7166, 7101, 7093, 7068, etc.
The Board, having heretofore recognized the limitations placed upon it by law, and that it does not have authority to grant new rules, and will therefore not attempt to further restrict Carrier's rights, there is ample reason for a denial award for this sole reason, if for no other.
(1) The Carrier did not violate the effective Maintenance of Way Agreement on Monday, April 7, 1958, in having 3 laborers perform their customary work of helping load second-hand cross ties on Carrier's Savannah Division;
(2) The management has not negotiated away its inherent right to determine its supervisory requirements and thus determine when supervision is needed in the utilization of laborers to load cross ties;
(3) Performance of the work in the manner indicated was in conformity with past, accepted and agreed-to practices, all of which is proven by probative evidence;
(4) The Board is without authority to grant the new rule here demanded, and has so recognized in numerous prior awards;
(5) Claim is clearly not supported by the Agreement in evidence; the Board cannot do other than make a denial award.
OPINION OF BOARD: On April 7, 1958, three track laborers were detached from their respective gangs and assigned to a work train engaged in loading cross ties by means of a dragline. Their work consisted of hooking the dragline cables onto bundles of ties and unhooking them after the ties had been loaded on gondola cars. No track foreman was assigned to supervise the laborers, but a track supervisor (not covered by the Agreement) was present and in charge of the overall operation. 12415-16 904
In addition to the basic Agreement effective September 1, 1949, there is in evidence a special Agreement dated January 30, 1957. Paragraphs numbered 1 and 2 of Section 6 are applicable here, and read as follows:
There are two dispositive questions confronting the Board in this dispute: First, whether the quoted language of the 1957 Agreement required the Carrier to assign a foreman to supervise the work of the laborers; second, whether the track supervisor did, as alleged, actually supervise the laborers.
As to the first question, it appears from the record that the Brotherhood during negotiations leading to the consummation of the 1957 Agreement, sought unsuccessfully to include a requirement that the work be performed under the "direct" supervision of a foreman. Had that requirement been agreed to, the rule would have to be read to mean that a foreman must be present at all times and at every place where covered employes worked. That requirement was considered and rejected by the parties when they entered into the Agreement. This Board may not now supply what the parties themselves failed to include. (Awards 5079, 7153, 10425, 12192.) Accordingly, we find that the applicable and controlling rule (supra) does not contemplate the direct supervision of covered employes by foremen. Nor does it require the presence of a foreman to direct and supervise the work wherever or whenever it is performed. This conclusion stems from the Board's examination of the language of paragraph 2 of the Agreement which, on its face, indicates that covered employes may perform assigned work without a foreman being present.
As to the second question, the Petitioner has the burden of showing by evidence of probative value that the track supervisor did, in fact, supervise the actual work performed by the laborers. The undisputed fact that he was present is not sufficient. Nor is it enough merely to assert that he did; particularly where, as here, the assertion is denied. The lack of evidence of probative value to support Petitioner's allegation leaves the Board in the position of having to decide the issue on speculation and assumption. This we cannot .do. It must be held, therefore, that Petitioner has failed to meet the requirements of the burden of proof doctrine. (See Award 12244, same parties and similar facts.) Accordingly, we find that the track supervisor did not supervise the laborers, as alleged. 12415-17 905