Both Mr. Hay and Mr. Dore on whose behalf claim is made herein submitted bids for the position.

Under date of May 16, 1962, Mr. Dore personally wrote to the Superintendent at Elko, Mr. Lynch, protesting the awarding agent-telegrapher-car distributor position to Mr. Hay under Rule 45(d) and further that there was discrimination on the part of the Carrier in the making of the appointment.

The issue to be determined by this Board is whether or not the position, which was reclassified by the agreement of April 25, 1962, continues to be a Star Position and subject to the provisions of Rule 45(d).

The Organization contends that after the position was reclassified it was the intention of the parties, by the agreement of April 25, 1962, that it would no longer be a Star Position.

The Carrier contends that the parties never intended to remove the reclassified position from the Star Position category, and that it was agreed that the reclassified position would retain its Star Position status.

The parties are in sharp disagreement with reference to the question as to whether or not, after reclassification, the position was to be or not to be a Star Position.

This Board has held on any number of occasions that we follow the basic and ordinary rules of contract interpretation and construction. We are

bound by the terms and provisions of the Agreement before us. We have no power or authority, and we may not make new provisions, abrogate provisions or alter existing provisions of the Agreement. That is the province of the parties themselves. We must ascertain and give effect to the intention of the parties, and that intention is to be deduced from the language employed by them.

In interpreting and construing the provisions of an agreement, we inquire into what was the meaning of the writing at the time and place it was made between the persons who were parties to the writing; the surrounding circumstances under which the writing was made in order that we may judge the meaning of the words and the correct application of the language of the agreement; the main object of the agreement, or the purpose which the parties sought to accomplish must be considered in ascertaining their intention. We also give common or normal meaning to the language used in the agreement unless the circumstances under which it was made show that a special meaning should be attached to the agreement.

The Agreement speaks for itself.

The Agreement was prepared by the Carrier. If the Agreement is an ambiguous one, it is to be interpreted against the Carrier, the one who prepared it. However, in the case of Rosenthal et al, v. American Bonding Co. of Baltimore, 207 N. Y., 162, it was held that although an ambiguous contract is to be interpreted against the one who prepared it, if the meaning is not uncertain, the Court may not make a new contract under the guise of construction.

In the case of Hartigan et al, v. Casualty Co. of America, 227 N. Y. 175, it was held that although the wording of the contract was selected by one of the parties thereto, it was the duty of the Court to give effect to the parties' clearly expressed intent.

The Organization contends that it was orally agreed and understood and contemplated by the parties that a reclassification would change the status of the position and remove it from the Star Position category. This is denied by the Carrier.

In the case of Sokoloff v. National City Bank of New York, 239 N. Y. 15, the Court held that a statement by one of the parties to the contract that it was understood and contemplated by the parties as to the terms of the contract is not sufficient or binding, since understanding and contemplation cannot take the place of the written agreement.

It is evident from the record that before the agreement of April 25, 1962 was signed, that conferences were had between the parties with reference to the reclassification of the position, and what was to be the effect of such reclassification. If and when the agreement was presented for signature to the General Chairman and it did not set forth the agreement of the parties, it was the duty of the General Chairman not to sign the agreement, but request that it be amended to properly set forth the agreement of the parties. The General Chairman having signed the agreement on behalf of the Organization, the Organization is bound by its terms.

In the case of Metzger as Receiver v. Aetna Insurance Co., 227 N. Y. 441, the court held that hi the absence of fraud, one who signs an agreement or contract is presumed to have read its contents and assented thereto.

It is noted that before the General Chairman executed the Agreement, the following proviso was added: "Subject to agreement between the parties, in regard to a joint check after six months, if requested, and that the work now being performed by the Car Distributor shall remain the work of the Telegraphers."

The Organization contends that the word "agreement" made reference to the main agreement between the parties. We do not agree with such contention. The facts indicate, from a reading of this statement, that if requested, a joint check would be made after six months in order that the situation might be then re-evaluated. It does not in any way refer to the main agreement between the parties.

The burden of proving its case is on the Organization. We require it to submit competent supporting evidence to prove its case and to establish violation of the Agreement. We hold that the Organization has failed to meet its burden.

We hold that the Agreement executed by the parties under date of April 25, 1962, did not remove the reclassified position from its Star Position category.

Claim is also made by Mr. Dore in his letter of May 16, 1962, that the Carrier discriminated against him in making the appointment. There is no competent evidence in the record to show that the actions of the Carrier in the making of the appointment was discriminatory, arbitrary and/or Capricious.

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

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 Agreement was not violated.

AWARD