PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 TO ) --- AND
 DISPUTE ) BURLINGTON NORTHERN RAILROAD (Former FW&D)
 STATEMENT '-
 OF CLAIM: 1. That the Carrier violated the provisions of
 the current Agreement and Mediation Agreement
 of October 7, 1959 when it assigned certain
 junior employes to perform the work of Foremar_
 (Track Inspector) without notifying the General
 Chairman for the purpose of mutually agreeing
 upon a rate of pay which would be satisfactory
 to both parties and instead assigned employes
 to perform the duties at the rate commensurate
 to their current titles.
 2. That the Carrier will now be required to compens
 ate Foreman Mr. E. F. Kelly the differential
 between what he earned and the rate applicable tc
 Foreman-(Track Inspector) on the Burlington Nor
 thern Railroad for the period of time that Extra
 Gang No. 11 was working on the JTD.
 3. That the Carrier be required to compensate Mr. Ec
 Young the differential in the what he earned and
 the rate applicable to Foreman-(Track Inspector)
 on the Burlington Northern Railroad beginning
 October 5, 1985 until the violation ceases. -
 4. That Foreman Lee Kennard be compensated at the
 rate applicable to Foreman-(Track Inspector) -on
 the Burlington Northern Railroad for all time ex
 pended by junior employe Mr. Ed Young who perforce
 the duties common to the Foreman-(Track Inspector
 beginning October 5, 1985 to October 21, 1985 and
 commencing again on October 29, 1985 until the vi
 lation ceases.

 FINDINGS: By reason of the Memorandum of Agreement signed Noves
 ber 16, 1979, and upon the whole record and all the evidence, the Board finds that the parties herein are employe and Carrier within the meaning of the Railway Labor Act, as amended, and that it has jurisdiction over the parties and the subject-matter.-
                                    AWARD NO. 33 (p. 2)

                                    CASE NO. 42


On June 12, 1985, the Carrier posted Bulletin Notice No. 119, advertising for position of "One Foreman - (Track Inspector On June 28, 1985, the Carrier cancelled the Bulletin Notice No. 119. The Carrier did not fill the advertised position.

 On July 1, 1985, the General Chairman filed a grievance with the Carrier, contending that the Carrier had failed to comply with Mediation Agreement of October 7, 1959 in that the Carrier-had not notified the General Chairman of its intention to establish such a position pursuant to said Agreement. In its July 1 letter, the Organization stated, in part:

 "The carrier at no time prior to effecting this change did in fact notify the General Chairman in accordance with the provi ions above. Had they so informed the General Chairman we would have advised that it is the General Chairman's contention that there has been an expansion of duties and responsibilities of supervisor emplo covered by the collective agreement by the parties hereto resulting in the request for wage adjustments and a mutual agreement reached i disposal of the issue raised. We were, however, not given that oppo tunity, therefore, as a result of the change of work methods mention it is our contention that there has been an expansion of duties and responsibilities for section foremen by adding title of Track Ihspec and we are requesting that Track Inspector's position be rated on a monthly rate of pay to $2,315.23 per month, this monthly rate correl ed to what is currently paid for Track Inspector position under the Burlington Northern Agreement effective September 1, 1982.*** - Further, if in the event we are unable to arrive at a favorable deci at such conference we respectfully request that you submit the follo ing question to a three (3) member Board of arbitration as provided under Appendix A, Article III, paragraph (c). Question to be submit to the Board for decision;

          Should the current monthly rate established for Section Foremen - Track Inspector position rate of pay as set by carrier be con tinued or should the rate of pay be adjus and increasing it to $2,315.23 per month on same cox_dit, as now paid under the Burlington Northern Agreement effe ive September 1, 1982 as requested by the Brotherhood of Maintenance of Way Employes General Chairman Ben Ochoa?


On July 23, 1985, the Carrier responded to the above let of July 1, stating in part: "Bulletin No. 119 did in fact advertise for position of foremen (Track Inspector) to be assigned at Ft. Wort This bulletin was recognized as not being proper and was cancelled b notice 119-A on June 28, 1985, with copy given to you ....This positi was not assigned therefore no position was established nor do we-int to establish a position at this time."

 On December 2, 1985, the instant set of claims was griev with the Carrier.
                                        AWARD NO. 33 (p. 3) CASE N0. 42


It is clear that the organization's letter of July 1, 1985 proposing arbitration as provided under Appendix A, Article III paragraph (c) of the October 7, 1959 Mediation Agreement was fully consistent with the language of that Agreement, Article III, stating

          "If, as the result of change in work methods subsequent to the effective date of this agreement-resulting in request for wage adjustment and mutual agreement is not reached disposing the issue thus raised, the matter will be submitted to arbitration in accordance with Paragraph (c) of this Article."


In the circumstances of this case, considering the Octob 7, 1959 Mediation Agreement and the handling and passage-of time fro July 23, 1985 until December 2, 1985, this Board will not determine the merits of the instant claims.

                      A W A R D


              The claims are dismissed.


                    .~- d

                        ~.e


              JOSE LAZAR, CHAIRMAN AND NEUTRAL MEMBER


                                    .


C. F. FOOSE, EMPLOYE MEMBER L. MARES, CARRIER MEMBER -

 DATED: