AWARD Claim denied."

Also see other awards, including' Third Division Awards Nos. 8172, 7964, 7908, 7861, 7584, 7226, 7200, 7199, 6964, 6885, 6884, 6824, 6748, 6225, 5941, 2676, and others. Also see Second Division Awards Nos. 2938, 2580, 2569, 2546, 2544, 2042, 1996, and others-all of which clearly state that the burden is on the claimant party to prove an alleged violation of the agreement. To date, the Employes have produced no evidence of any violation.

In view of all the facts and circumstances shown by the Carrier in this Ex Parts Submission, Carrier respectfully requests the Board to deny the claim in its entirety.

OPINION OF BOARD: No controversy exists over the following facts in this dispute:

(1) The Claimant held seniority as a track laborer, as a Junior Apprentice Foreman, as an Apprentice Foreman and as a Foreman. On December 6, 1960, after a bulletin, he was assigned to an outlying point, located at Gordon, Georgia, as a Junior Apprentice Foreman.

(2) The section foreman supervising Gordon was headquartered at Machen, Georgia.

Petitioner asserts that Claimant's assignment was in violation of the Agreement in effect at that time; it charges that the Carrier is receiving the benefit of an experienced foreman in the position and, therefore, it should be required to compensate Claimant at the foreman rate. No evidence is submitted to us which would tend to support a finding that Claimant was doing any work other than that of a Junior Apprentice Foreman.

The Petitioner cites the following provision of the Amendment to the Agreement, under date of January 30, 1957, to support its assertion of a violation.

SECTION 6 (2).

" . In addition to the laborers assigned to the section foremen at their headquarters there may be additional laborers assigned to outlying points not to exceed two (2) at any one location and not to exceed six (6) on the Savannah Division. . . The laborers assigned to outlying points will be a part of some designated section gang.,,

In its argument to us Petitioner urges that we recognize and give effect to the generally accepted rule of construction which provides that when an exception is spelled out, no further exceptions should be implied, since the parties to the agreement have presumably and deliberately, excluded them. Applying the exclusivity rule referred to, we are asked to specifically find that only laborers may be assigned to outlying points, such as the one where Claimant is now working. (Emphasis ours.)

Were it not for another provision in the January 30, 1957, Amendment to the Agreement we would be inclined to base our finding on the rationale suggested by the Petitioner; however, to make such a finding it would be

necessary that we also find that when the Carrier assigned the Junior Apprentice Foreman Claimant to the outlying point of Gordon, Georgia, the number of laborers in the Machen section gang, to which gang the laborers at Gordon were assigned, was affected. (Emphasis ours.) The clear language of Section 4 (c) of the mentioned Amendment will not permit such finding, for therein it is stated, "that when a Junior Apprentice (Foreman) is assigned to a section gang, it will not affect the number of laborers allowed that particular gang."

Our findings must be that the facts presented herein, when viewed in the light of the language of this Agreement, do not convince us that there has been a violation of that Agreement. 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