PARTIES TO DISPUTE:

THE NEW YORK CENTRAL RAILROAD, BUFFALO AND EAST

STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on the New York Central Railroad, Buffalo and East, that






EMPLOYES' STATEMENT OF FACTS: An agreement by and between the parties bearing effective date of July 1, 1948, as amended September 1, 1949, is in evidence; copies thereof are on file with the National Railroad Adjustment Board.


At Mallory, New York, on the St. Lawrence Division there is a station for the handling of passenger, freight and general railroad business. The position of agent-telegrapher at this point has been included in the Telegraphers' Agreement for many decades, being filled by Mr. R. G. Herrick at the time it was declared abolished by the Carrier on September 15, 1949, permission of the New York State Public Service Commission having been secured by the Carrier to do so, under certain circumstances.



5375-21 $13
 is made; the Carrier declares that the designation 'certain of its Coal
 Chute Foremen, Coal Chute Operators, Coal Chute Laborers, Pumpers,
 Crossing Watchmen, and Bridge Tenders' is too general, vague and
 indefinite. The Board finds that there is merit to this contention,
 in that the record is not, in fact, in such a condition as to make
 possible a proper analysis and determination of the issues involved in
 the claim; actually, the issues involved in the claim cannot be made
 out clearly from the record as it now stands. In Award 2125 this
 Board stated that it should not attempt to decide claims of em
 · ployes who were not before the Board and whose exact status was
 not known."
 Again in Award No. 4305 the Board rendered an opinion reading in part
 as follows:
 "The claims for 'other similarly affected employes' must be
 denied. The only claims properly before the Board for its considera
 tion are those of named parties for specified dates and locations.
 In Award 906 this Board said: 'The claim in this case should be
 restricted to the employes specifically named therein, since the cor
 respondence shows that they were the only ones discussed in con
 ference."'
 CONCLUSION
 The Carrier has shown conclusively that Mallory station was made a
 non-agency under orders issued by the Public Service Commission of the
 State of New York; that the agency having been abolished and jurisdiction
 over Mallory vested in the Agent at Central Square, no work remained at
 Mallory and no violation of the Telegraphers' Agreement has occurred.
 (Exhibits not reproduced.)
 OPINION OF BOARD: Pursuant to authority granted by the Public
 Service Commission of the State of New York, the position of agent-teleg
 rapher was abolished at Mallory, New York; the station made a non-agency
 station, and placed under the jurisdiction of a joint agent of Carrier and
 another line at Central Square, New York, 3.7 miles distant. The joint agent
 held seniority on the foreign line.
 The position at the location in question is listed in the Agreement be
 tween the parties, effective January 1, 1940, at page 47. The Organization
 recognizes, however, that this Division of the Board has declared in num
 erous Awards that the Carrier has an absolute right to abolish any position
 provided the duties of the position are in fact abolished (Award 255). The
 Division has also held that if the duties are not abolished, the transfer of
 such duties to another seniority district off or on Carrier's lines can only
 be done by negotiations and agreement (Award 4076, 4653). The Organiza
 tion contends this to be a case of the latter class.
 Carrier admits that the occasional shipments destined to Mallory after
 September 15, 1949, did require someone to do the work formerly performed
 by the agent-telegrapher at Mallory. It attempts to escape the implications
 of this admission by stating the handling employe was a joint employe of the
 New York Central and the foreign line. From the Organization's standpoint,
 the pertinent fact is that such person, while a telegrapher, was not subject
 to the same Agreement nor within the same seniority district as that of the
 employe whose work he assumed; hence, seniority rights on the St. Lawrence
 Division of the New York Central Lines were affected adversely by Carrier's
 actions, and the agreement of the Organization was called for. This case is
 to be distinguished from that subject to Award 1305 and relied upon by
 Carrier because there, with the abolition of the agency, both passenger and
 freight service were abolished at the point involved. Not so here. Both
 continued even though upon a steadily declining scale. This Division early
 suggested the means of solution to cases such as this (Award 434).
 5375-22 $14

Carrier considers any possible violation of established rules but trifling and urges the application of the "de minions"' rule. The rule contended for has rare justification for application in a case like this where treasured seniority rights are involved.


Carrier would seem to find solace in the order of the State regulatory agency. In Award 3738, we ruled such authorization did not give the Carrier authority to violate any of the rules of the parties' Agreement. Despite the form of the instrument, the action of that agency dated July 27, 1949, was, by its terms and intent, permissive as cursory examination of the Exhibit will show.


Carrier later in its submission sets forth an exchange of correspondence occurring in December 1939, covering combination agencies, wherein it is stated:




Accordingly, it excuses itself from the necessity of consulting the Organization in view of permission received from the Public Service Commission. The point lacks merit (1) because the language of the letter is subject to a contrary construction and (2) because it predates the current formal Agreement between the parties.


We are without authority to order the Carrier to reestablish this position as requested by the Organization. The Carrier may be able to avoid violence to the Agreement by assigning the work in a manner that will be in conformity therewith (Awards 3906, 4044 and 4987), and is entitled to that opportunity.


FINDINGS: The Third Division of the Adjustment Board, 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






Paragraph (a) and item (1) of paragraph (b) of the claim are sustained. In view of the foregoing it is not necessary to give consideration to Items (2) and (3) of paragraph (b).


Paragraph (c) is denied insofar as restoration of position is involved, but Agent-Telegrapher Herrick shall be paid for any loss of wages, travel, and waiting time, together with other reasonable and necessary expenses incurred by him by virtue of the unilateral discontinuance of the position occupied by him at Mallory, New York, such liability to continue until conformance with the Opinion heremabove stated.


    Paragraph (d) of the claim is denied for reason of indefiniteness.


            NATIONAL RAILROAD ADJUSTMENT BOARD

            By Order of Third Division


ATTEST: A. I Tummon
 Acting Secretary

 Dated at Chicago, Illinois, this 28th day of June, 1951.