PARTIES TO DISPUTE




                            And


                    CSX TRANSPORTATION, INC.


STATEMENT OF CLAIM
      Claimant D. Evans should be paid the difference between Assistant Foreman's rate of pay and Foreman-Surfacing Gang rate of pay. Claimant should balpaid from'June 1, 1985 and continuous until violation is stopped.


FINDINGS ''~. I. '

              f11 `f ll, I.' n I ~" , ~,,, L. r~,

      During the.times"in question _Claimant was assigned as.an assistant

foreman on Extra Gang 150, whic~'was a timbering and surfacing gang.` Extra ,l'
 Gang 150 ,was- divided 'into. two units because the surfacing unit could. not

 ' , 1 . ' ' I. ~ , , .. 5. I 1. ' r.
 keep up with the pace of the tie unit. Claimant was in charge of the surfacing unit. Division of a gang under these circumstances is a not . , uncommon procedure 'arid, is based on the type,and duratip,n of tasks performed,
 I .
 by each unit of the gang. Claimant called in reports, provided track ·-. ,

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protection, kept time and was responsible for the work performed by his
 ·11 I~ . unit. Claimant reported. at least once a day to his foreman and received ,r ",~4,, x ' ~~ ~yi5 - ,·~;
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instructions from his' foreman as to what tasks to perform. The undisputed

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evidence in the reco,rd'is that, historically, the occupants of assistant
 foreman positions such'as Claimants have performed in this manner under the

 supervision of a foreman.

 The rhte~ -of pay'fot a forehCbn in charge of a° timbering' and surfacing 1v'

 gang is greater than that of 'an assistant foreman. Claimant, was paid as 'an assistant .foreman. : There had b,ee'runo agreement to modify the duties of an, I

 assistant foreman.

 The Organization alleges 'that during the progressing of this claim on,,

 iy the property, the Carrier's representative agreed that the work Claimant

 performed was different than the duties normally assigned to-an assistant

 foreman.

 Rule 1 of the Agreement provides:

 SCOPE

 Subject to the exceptions in Rule 2, the rules contained herein shall govern the~hours of service, working conditions, and rates of pay for all employes in any and all subdepartments of the Maintenance of Way and Structures Department, represented by the Brotherhood of Maintenance of Way Employes, and such employe shall perform all work in the maintenance of way and structures department.

 The issue to be decided in this dispute is whether the Carrier violated the Agreement by removing work from the foreman's position and assigning it to the assistant foreman's position without negotiation; and if so, what

 should the remedy be.'
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 q, a) g-q

 The pdsitioxi 'of, theOrganizatidn is that the' Carrier violated' the Agreement by assigning work to Claimant that 'was foreman's work and not paying him at a foreman's rate,.- The Organization'contepds that this

 constitutes the unlawful modifici~ion of the assistawtifore~an duties

 without benefit of negotiation as is, required under the Agreement. The

 Organization maintains that Claimant was performing foreman's duties, notifig that "this particular assignment was more technical and 'different from

 duties normally assigned to. assistant foremen."

 The position of the Carrier is that it did not violate the Agreement,"

 contending that Claimant was not performing duties other than those normally assigned to an assistant foreman. The Carrier maintains that Claimant was. ' working under the supervision of the foreman, taking regular instructions from him as to what tasks to perform. Further, the Carrier maintains that_

 all the work Claimant performed was at the direction or on behalf of the

 foreman. The Carrier cites numerous decisions for the proposition that the
 foreman and assistant foreman need not be in constant physical proximity.

 And the Carrier points out that this sort of separation is common on gangs performing this work.due to the nature of the work and speed at which

 certain tasks are performed. ,Finally, the Carrier argues by ,implication that if Claimant did, not perform foreman duties, then the, Carrier did not modify an assistant foreman's duties without negotiation'.

 After.reView 9f"the entire-record, the Board finds that the Carrier did

 not violate the Agreement.
    The organization has not sustained its burden of proving a violation of


the_ Agreement by,fai,lure to negotiate modifications of the duties of the,
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assistant foreman position. The Organization has not presented sufficient ,credible evidence po,show that Claimant performed duties other, than those. ,·

 normally asgociat ~`

 ;. ed:,w,~th his position.

 On the contrary, the Carrier, has adequately demonstrated that,Claimant

 was performing duties, historically perforffied by assistant foremen. It is.,

 I

 not unusual for assistant foremen to operate phys'ical,ly removed from a foreman for parts of .a day, as Claimant did here.., However,.Claimant met regularly,with his ,foreman and worked -- both as a leader of his unit and ass. a direct assistant to: the foremah'-- at the direction of his foreman'. Nod doubt, Claimant exercised some discretion and independent effort in,carryingL,

 out his foreman's.instructions, but this does not transform'his work to

 foreman's work.

 Since Claimant did not perform the work of a`fordman, there were no

 modifications to the duties of his position without the negotiation required

 by the Agreement.
 AWARD
Date:

            J

    qpIA


' Claim denied.

 N uCia

 Carrie

Organ' ation Memo ber '