ment, it is quite persuasive that the Carrier was trying to benefit itself by 'abolishing' the positions and at the same time protect itself by exercising its powers as employer against loss and delay in resuming operation when and if the strike ended. That the Carrier may abolish the position when work stops must be conceded, but the abolishing of the position must be actual and have the effect of removing the occupant from the service of the Carrier until such time as he may voluntarily exercise his seniority to another position if such right exists. The abolishing of a position can be accomplished with plain and simple language, and when, as here, qualifying directions and instructions are included, it is evident that the Carrier intended in fact something other than to eliminate the position absolutely." (Emphasis ours).

Carrier asserts without fear of contradiction, that Bulletin No. 83 could hardly have been more "plain and simple". No "qualifying directions and instructions" were included. The Claimant's position was abolished completely, totally and irrevocably in accordance with schedule rules and Carrier's undoubted right to "abolish the position (s) when work stops", but Petitioner requests that Carrier, after having carefully complied with all schedule rules affecting the abolishment, now pay Claimant for work not performed when no such penalty appears in current agreement even if it had been violated.

Petitioner has also asserted that "no Auditor's check was made of her ticket case or money" at the time of the abolishment nor when her position was re-established. Carrier categorically asserts that Petitioner as a contractual representative of Claimant is without vested interest in the stated phase of Claimant's relation with Carrier. Whether or not an "audit" is or is not made is purely a managerical prerogative. For the information of the Board, however, Carrier will say that Claimant was instructed to and did turn in her cash before leaving the active service of the Carrier at the close of work on March 27, 1948. A check of her ticket case was made in the usual order on or about the first of the subsequent month (April). This is the customary practice on the Carrier's property. Everything having been found in order, when Claimant was recalled to active service on a new position, funds were issued her as is customary with new employes.

SUMMARY

Carrier has conclusively shown that the position held by Claimant was abolished by Bulletin No. 83 on March 28, 1948. There was nothing ambiguous with respect to the aforesaid bulletin. Claimant had sufficient seniority to have exercised displacement rights and thereby remained in active service. Claimant did not attempt to exercise displacement rights because she was not qualified or competent to fill the position held by her junior. Claimant, therefore, became a furloughed employe on March 28, 1948. By occupying the status of a furloughed employe Claimant did not come within the scope of Articles IV and IX, invoked in support of the claim, since these Articles apply only to employes olding regular positions and the Claimant held no position.

Carrier freely admits violation of Article XII (a) but has shown that Claimant was not damaged by Carrier's failure to comply with this Article and, in fact, may have benefited thereby.

There is no justification for the imposition of the penalty requested by Petitioner either under the rules of the controlling agreement or in equity.

The claim should be denied.

(Exhibits not reproduced).

OPINION OF BOARD: Threatened coal strikes having induced a falling off in traffic, Carrier by notice duly posted abolished the position of Assistant Ticket Agent North Station, Boston, Mass. held by Claimant on March 28, 1948, and this work was handled by othr assistant ticket agents. Nineteen days later Claimant was called and put back to work by the Carrier at the same

work, same hours, same rest day and same rate of pay as before and without any new position being advertised for bids. Compensation is claimed for the period she was laid off under Article IV, the Guarantee Rule, of the Agreement and Article IX providing that employes will not be required to suspend work during regular hours or to absorb overtime. Carrier denies violation on the ground that the positions had been regularly abolished, but admits violation of Article XII (a) of the Agreement:

"(a) Employes will be advised within five (5) days of all permanent vacancies or new positions covered by this agreement by notice sent to each office, stating hours of service, days per week and salary. Applications for such vacancies or positions shall be received for ten (10) days after date of advertisement and the successful applicant and the Local Chairman shall be advised. The successful applicant will be placed on the position within twenty (20) days after vacancy occurs."

The question involved is whether or not the position was in fact abolished. or, to phrase it differently, whether Claimant now occupies her old position, or a new position.

This Board said in determining Award No. 4170: "If the positions had been abolished they could only be brought back into existence as new positions. Rule 5 (a) of the Agreement requires that all new positions ' ' ' ' * shall be bulletined. This is an essential to the establishment of such new positions." We find no escape from the logic of that statement, and, as we have seen, a similar rule prevails here. To what position did claimant return? Not to a new position because none bad been established. Where could she look for the name, or salary, or hours of service or days per week of her position? Only to the posted notice and award to her of the old position.

From these considerations we must conclude that Claimant's old position had not been abolished; that she had in effect been suspended from it, and that thereby the Guarantee Rule had been violated.

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

That both parties to this dispute waived oral hearing thereon;

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 violated the Agreement.

AWARD