The employes are seeking to have your Board sustain their claim whereby the Carrier will be required to restore the clerical positions and compensate the claimants for each day since the position was abolished.

We have shown that your Board has consistently held that this Carrier has the right under the applicable Clerks' Agreement to assign clerical duties to telegraphers to fill out the hours of their assignment. We did not violate any rule of the Clerks' Agreement.

Even if claim had merit, which we deny, we submit that one of the claimants in this case, Ralph K. Seely, even if his position had not been abolished, would not have been available for work on which claim is based because since August 1 1958 he has been superannuated account physical disability and effective May 25, 1958 was granted a disability annunity front the Railroad Retirement Board effective May 25, 1958. Therefore, he has not been injured in any respect in loss of earnings. In any event, if he were not superannuated, he would be obliged to exercise his seniority rights and would have secured a position paying him as much or more per month than position abolished and, hence, here, too, he would not have suffered any monetary loss as he could not work two positions at the same time.

We submit on basis of the facts in this case there was no violation of the agreement nor have the employes produced any evidence of loss by the claimant, nor basis, under the rules, and we respectfully request denial of the claim.

It is hereby affirmed that all of the foregoing is, in substance, known to the organization's representatives.

(Exhibits not reproduced.)

OPINION OF BOARD: This is another claim arising from the abolishment of certain positions under the Clerks' Agreement and the transfer of the remaining work of those positions to others not covered by that Agreement.

The record poses an irreconcilable question of fact when it is alleged, (and denied), that some of the clerical work was eventually transferred to a section laborer and a contract drayman. On the state of the record before us the Board is unable to resolve this issue. It is clear, however, that at the time the positions were abolished the work was given to telegraphers. Our decision here, therefore, is limited to a consideration of the merits of the claim in the light of this established fact.

Written notice of the pendency was served on the Order of Railroad Telegraphers. It declined to participate in this proceeding. Accordingly, the Division having complied with the requirements of Section 3, First (j), of the Railway Labor Act, we may now consider the claim on its merits. (Awards 10531, 11209).

The case before us is not one of first impression on this particular property. As is stated in the Employes' Submission, the same issue was raised from substantially similar facts in Docket Nos. CL-9973 and CL-10214, involving these parties and the identical Scope Rule of the Clerks' Agreement in effect on this property. Award 10741, in Docket No. CL-9973, denied the claim there primarily on the grounds that the transfer of the remaining work to telegraphers was proper "within the frame work of historically established exceptions" to the Scope Rule of the Clerks' Agreement, and cited Award 10301 (Docket CL-10214) as "an especially persuasive precedent."

Accordingly, this claim will be denied.

That the parties waived oral hearing;

That the Agreement was not violated.

AWARD