Based on all that has been said hereinabove the Carrier submits the claim made here at parts 1 and 2 is completely without merit. Furthermore the Carrier asserts that this Division has no authority to make any order directly, or by indirection to issue any verdict, the net effect of which would be to compel the Carrier to establish position or positions where none now exists. The Carrier respectfully requests this Division to find this claim as being without, merit and to deny it accordingly.

(Exhibits not reproduced.)

OPINION OF THE BOARD: Before considering this dispute on its merits, it is necessary to dispose of a motion in this docket to the effect that action be withheld pending the giving of notice of hearing to other parties involved.

In view of a number of awards of this Board and the decision of the Supreme Court of the United States in the case of Whitehouse vs. Illinois Central Railroad, and the finality of this matter (No. 131. October term of U. S. Sup. Ct., 1954) followed by the dismissal of the cause of action by the United States District Court, the Board now has jurisdiction over the only necessary parties to this proceeding and over the subject matter hereof. Prior Award 5759 of this Board was ill advised.

Claim is here made that the Respondent violated Rule 1(c)1 when, on October 13, 1951, the position of Station Clerk 73-1-486 was abolished at LeRoy, New York, followed by the alleged improper reassignment of a portion of the duties previously performed by the occupant of the Station Clerk position to employes not covered by the effective Agreement within the meaning of the said Rule.

Rule I(c)1 of the effective Agreement provides as follows:

"Rule 1

"(c) when a position covered by this agreement is abolished, the work assigned to same which remains to be performed will be reassigned in accordance with the following:

"1. To position or positions covered by this agreement when such position or positions remain in existence at the location where the work of the abolished position is to be performed."

The Petitioners assert that positions of Chief Clerk and Station Clerk were established at LeRoy, New York, as early as 1948, and that while the position of Station Clerk was at one time abolished, the same was reestablished on September 6, 1950, and was in existence subsequent to the time Rule 1(c)I was placed in the Agreement, having so existed for more than one year continuously prior to the date the same was abolished on October 13, 1951, and that the duties remaining when the position was abolished were required to be reassigned (within Rule 1(c)1) to the position (s) remaining at the station which was covered by the effective Agreement rather than (as here) to the Agent, Operator-Clerk and Section Men.

The Respondent pointed out that the station force at LeRoy prior to September 9, 1950 consisted of a Chief Clerk, together with an Agent and two Operator-Clerks, which work force was later supplemented due to an increase in the over-all workload by an employe classified as Station Clerk whose duties were to assist the said four employes with the increased work; but that when the need for such employe (Station Clerk) ceased, the position was abolished, and the remaining work was performed as it had been in the past, by the same work force that had historically performed same.

It was asserted that the duties assigned to and performed by the Station Clerk position in question were never the exclusive work of Clerks and that

when the amount of such duties decreased, those duties remaining properly were assumed and performed by those from whom they (the duties) had initially flowed, for which reason no violation of the Agreement had occurred.

Rule 1(01 is clear and without ambiguity. In substance it provides that where duties of an abolished position remain, they (the duties) shall be reassigned to and performed by any employes (positions) remaining at the location where the remaining duties are to be performed. There remained the position of Chief Clerk at LeRoy to whom the Respondent might (and properly did) assign a portion of the remaining duties of the abolished position. The Respondent could not properly assign any portion of the remaining duties of Station Clerk to the Agent, Operator-Clerk or Section Men for the reason that Rule 1(c)1 is clear, concise and explicit in establishing criteria for the disposition and reassignment of work remaining in and to an abolished position.

As was stated in Award 3906, and sustained in Awards 5541, 6527, 6528 and 6529:

"At the location of this abolished position there were other clerical positions. As to this there is no question. Therefore, under the rule it became the duty of the Carrier, in order to conform to the rule to assign the work of the abolished position, if any remained, to those positions . . . .

The penalty to be imposed for the violation of the Agreement must be for the improper abolishment of the position in question, and the claim here is valid as long as the violation continued.

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 the Agreement was violated and the claim is sustained -etroactive to October 13, 1951.

AWARD

Claim that the Agreement was violated sustained with the right of employe affected retroactive to October 13, 1951.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division