OPINION OF BOARD: This case come to the Board in the form of a joint submission. It is the contention bf the Organization that prior to May 3, 1938 there existed and had existed for a long period of time an established clerical position, title, shop timekeper, at Streator, Illinois, daily rate of pay $5.41. On the date mentioned the position was abolished and the duties thereof assigned to employes holding no rights under the Clerks' Agreement.

In handling the case a dispute arose between the parties in regard to the volume of work performed by claimant prior to the time the position was abolished and also in regard to the volume of work assigned to employes not covered by the Clerks' Agreement.

On July 24, 25, 26, 1939, a joint check was made which revealed that the roundhouse foreman and coal chute foreman were performing a substantial amount of work formerly attached to the abolished position. It also developed that at the time the position was abolished there was a substantial amount of clerical work then performed by the claimant, the joint check showing there were three hours and three minutes of work per eight hour shift actually performed.

The Organization contends that in addition to the amount of the clerical work shown by the joint check of work performed by the roundhouse foreman and coal chute foreman, there is also conisderable clerical work performed by the car inspector who is not under the Clerks' Agreement. It is the contention of the Carrier that the duties declined to the extent that a clerk was no longer needed to assist and perform those clerical duties and that the roundhouse foreman and the coal chute foreman could without assistance perform along with their other duties the necessary clerical work at this point.

So we are confronted with a case in which there was a substantial amount of work remaining to be done after the position was abolished. This Board has been confronted with similar cases presented by this same Carrier covering the identical current agreements involved in this case. The Referee has made an examination of the submissions in those cases and finds that the arguments in Awards 1254 and 1314 are very similar to the argument submitted in this case upon behalf of the Carrier to show why claim should be denied. The Carrier in its submission cites Award 637. We quote from its submission:

This Board has repeatedly held that while carriers are free under collective agreements to abolish clerical positions when the duties thereof have disappeared or substantially been reduced in volume,, yet the Board has also consistently held that such duties as remain must be assigned to employes covered by the current Agreement and for whose benefit the Agreement is made. See Awards 385, 458, 637, 753, 1122, 1254, and 1314.

In the recent Award, No. 1254, with almost the same question involved as confronts us in this case and involving the same railroad and the same contract, this Board sustained the claim, stating:

"The essential facts in this claim are not in dispute. On May 10, 1938, the position identified as Roadmaster's Clerk at Brownwood, Texas was abolished. Some of the work of this position was transferred to Temple, Texas and a part of the work transferred to the two District Roadmasters at Brownwood, Texas. These two Roadmasters are not covered by the current agreement. Controversial contentions run only as to the volume of work transferred to the Roadmaster, and with respect to the right of the carrier to so remove the work arbitrarily. It is admitted that entirely apart from such routine clerical work as these two Roadmasters handled as a natural incident to their regular duties, a substantial amount of work previously performed by the clerk was transferred to them.

"In many awards this Board has held that while carriers are free to abolish positions when the majority of the duties do not remain to be performed thereon, it likewise consistently has held that the remaining duties must continue to be performed by employes within the scope of the applicable agreement, and that the remaining work cannot be turned over to employes without the agreement. (See Awards Numbers, 385, 458 571 609, 630, 631, 637, 751, 752, 753, 754, 791, 1122, 209, and 1210.)"

It is true that there is a dissenting opinion to Award 1254 but in Award 1314, which was decided after Award 1254, to wit, the 8th day of January 1941, this Board was confronted again with almost the identical question as in this case, covering the same current Agreement with the same railroad, again sustaind the claim of the employe. This record clearly shows that a substantial amount of clerical work after the abolishment of the position in question remained to be performed and that it was performed by employes not within the scope of the current Agreement. This, in view of the former awards of the Division, is a violation of the current Agreement. In this case the claimant asks for the restoration of the position. In Award 1314 this Board said:

"As to disposition: The violation of the agreement lay not in abolishing Position 225 but in giving some of its work to Moore. Hence we cannot decree the restoration of Position No. 225. The carrier may choose to continue the abolition of the position and make a legal distribution of the work in which case Cassidy has no claim thereafter.

"Although the carrier may abolish the position, when he wrongly distributes the work to employes not under the agreement, we can not speculate as to what it might have done if the distribution of work had not been taken out from under the agreement nor as to the consequences of such probable or possible action to the claimants. What is certain and not in the realm of speculation is that the work was wrongly taken out from under the agreement. Perhaps if this had not been done it would not have been possible to have abolished Position 225, or if the work could have been distributed among qualified included employes perhaps such employe might have taken a rating of $6.15 per day and perhaps Lockhart might have been senior to such employe and could have displaced him, and that employe dis-

It necessarily follows that we cannot now re-establish the position which was abolished but the claim is allowed from May 3, 1938 at the rate of $5.41 per day, less such amount as claimant may have been making if and when he was returned to the service. Claimant is allowed the difference between $5.41 and whatever he received from May 3, 1938 as long as what he received is less than $5.41 per day.

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 there was a violation of the Agreement in giving the work to an excepted position.

AWARD