NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
BROTHERHOOD OF RAILWAY AND STEAMSHIP CLERKS, FREIGHT HANDLERS, EXPRESS AND STATION EMPLOYES
STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
EMPLOYES' STATEMENT OF FACTS: On April 19, 1948, the Carrier issued Bulletin No. 154-copy attached as Employes Exhibit "A"-advertising permanent position of Yard Clerk No. 26 at Marion, Ohio, rate $9.24 per day, hours 11:30 P.M. to 7:30 A.M.
The position was located in the Transportation Department covered by Transportation Department seniority roster known as "East of Walbridge to and including Ackerman."
On the date that the position was established, there were two other Yard Clerks' positions covered by the same roster located at the same place, Marion, Ohio,-and in the same seniority district-and rated at $9.74 per day.
The Marion, Ohio Yard is a three-trick interchange Yard operation, the first trick position working from 7:30 A.M. to 3:30 P.M., the second trick position from 3:30 P.M. to 11:30 P.M. and the third trick position from 11:30 P.M. to 7:30 A.M. All three positions are similar, their duties being as follows:
First Trick position-checks track, makes list for Train 94 due at 10:30 A.M., occasionally makes list for Local Train 6'3 if the third trick Yard Clerk does not have time to do so assembles information and prepares Form CF-443, answers telephone and handles other ordinary Yard Clerk duties.
Second Trick position-checks track and makes lists for Train 92 due at 6:30 P.M. Train 99 due at 2:15 P.M. and Local "pick-up" due around 4:00 P.M.,
not complied with the agreement, and the rate now being paid to the present claimant should be held to be just as binding as if specifically incorporated in the written agreement.
OPINION OF BOARD: On April 19, 1948, Carrier bulletined the position of Yard Clerk No. 26 at Marion, Ohio, at the rate of $9.24 per day. The position is covered by the Transportation Department seniority roster. It is a third trick position in an "around the clock" operation. On March 26, 1948, because of a reduction of work due to a closing down of mine operations, the Carrier abolished Position No. 26 effective March 30, 1948. It is the contention of the Organization that when the position was re-established on April 19, 1948, the rules required that it be rated at $9.74 per day instead of $9.24 per day.
"(a) The rates of pay for new positions or positions abolished and later re-established shall be in conformity with the rates of pay for positions of similar kind, or class, in the seniority district where created.
The Carrier urges that Position No. 26 was not abolished but was merely discontinued temporarily. We do not think there is merit in the contention. We have consistently held that a position must be abolished in order to terminate the guarantee rules of the Agreement. See Awards 3838, 4001, 5074. We conclude that a Carrier who abolishes a position because of a reduction of work to be performed, abolishes the position for all purposes.
Rule 46 (a) applies to positions abolished and later re-established as well as new positions. It therefore applies to the position here involved. The proper rate of the position upon its re-establishment is that which is in "conformity with the rates of pay for positions of similar kind, or class, in the seniority district where created."
The record shows that the three positions working around-the-clock perform the same kind of work. The occupants of the first and second tricks were rated at $9.74 per day while the third trick position, occupied by claimant, was rated at $9.24 per day. We fail to see how these positions could be re-established at different rates of pay if Rule 46 was correctly applied. It is the duty of the Carrier to apply the contract in the first instance and fix the rates of these positions when they are re-established. It fixed the rate of the first and second trick positions at $9.74 per day. The Organization does not contend that the Carrier misapplied the Agreement in so doing. We agree with the Organization that the third trick position should be assigned the same rate in view of the fact that it is of similar kind or class. Under such circumstances, a variance in rates cannot be justified by the Carrier under Rule 46. We concur with the view that the assigned rates of positions existing at the time positions are abolished, which fall within the scope of Rule 46, are not controlling in determining the rate to be applied to new positions or positions abolished and later reestablished. We simply hold in this case that the Carrier having fixed a rate on two of the positions to which the Organization is in accord, it is obligated to so rate the third position. The claim is meritorious.
The Carrier asserts that the practice has been to rate such positions when re-established at the rate the position carried at the time of its abolishment. The contract (Rule 46) is plain and unambiguous. The practice, assuming 5163-18