Respondent further assumes petitioners will contend that the carrier does not have the right to abolish a position shown in the wage scale without negotiation. In this instance, carrier points out that it has not abolished the position of agent at Bayboro; that position still exists, but it has been made a joint position so that the agent at Bayboro would have jurisdiction also over Grants. Grants, N. C., as hereinbefore stated, was a non-contract star nontelegraph agency, and was not listed in the wage scale. Respondent, however, points out that nowhere in the agreement can petitioners cite a rule that restricts the Management in abolishing positions when there is no longer any work for that position and where the work has diminished to a point where it can be taken care of by another employe of the same class. (See Award 6944)

Respondent holds that the claim is entirely without contractural basis or merit, is based on fallacious premises, and should be denied, and we urge your Division to so hold.

All of the data contained herein has been made known to the petitioners, either by correspondence or in conference, and/or is known and available to them.

OPINION OF BOARD: Since 1921 Petitioner's Agreements with this Carrier have covered a position at Bayboro, North Carolina, on the Central District. From 1921 to 1942 this was an Agent's position; in 1942 it was reclassified to Agent (non-telegraph, non-telephone). In 1956, when the present grievance arose, Bayboro Agent L. H. Ballard received $296.50 per month; his hours of work were from 8:00 A. M. to 5:00 P. M., Monday-Friday, with a one hour lunch period.

About four miles from Bayboro lies Grants, another small town on the same branch line. Petitioner's Agreements have not covered a position at Grants although, until 1956, an agency position was maintained there.

Due to a marked decline in business (a hard-surfaced highway parallels the rail line between Bayboro and Grants) the Carrier, in August, 1956, sought permission from the North Carolina Utilities Commission to provide service at the two locations for only a portion of each day, thus allowing for the elimination of one agent (the remaining one to handle the two stations). On November 6, 1956 the Commission granted Carrier's request, noting, in part, that: (1) the volume of property handled did not warrant the full-time services of an agent at either location, and (2) convenience and necessity did not require the full-time services of an agent at either location. The Commission found that the following hours of service would be suficient:

Bayboro-8:00 A. M. to 11:45 A. M. and 3:45 P. M. to 5:00 P. M.

Grants-1:00 P. M. to 3:30 P.M.

On December 20, 1956, Management bulletined a position of Agent at Bayboro-Grants, 8:00 A. M. to 5:00 P. M. with one hour for lunch, salary $296.50. Ballard, the incumbent at Bayboro, was the successful bidder and, on December 31, 1956, was placed in the new dual position. As a result, the former separate agent positions at the two locations were abolished.

On February 24, 1957, the Organization presented a claim on Ballard's behalf which was later declined and processed in accordance with the Agreement. It was submitted to this Board on February 25, 1958. The Organization argues that Carrier has abridged the Agreement in the following major respects:

1. It violated the Scope Rule (Article I) when it required Ballard to perform work at Grants which did not come under the Agreement.

2. It violated Article 2 (Basic Day) by reducing Ballard's basic day at a one-shift office to less than eight hours.

3. It violated Article 9 (Guarantee) by not paying Ballard a minimum day's pay for work performed in the Bayboro position.

4. It violated Article 11 (Suspension of Work) by suspending Ballard from his Bayboro position for 2% hours each day (the time spent in Grants).

5. It violated Article 23 (Promotion) by removing Ballard from his regular assignment and bulletining his position out from under him when his qualifications were sufficient and his seniority prevailed.

6. It violated Article 35 (Change in Agreement) by changing rules, wages, and working conditions without conference or agreement and without following the requirements of the Railway Labor Act.

The Organization also contends that the Carrier, by its own actions, acknowledged the need to obtain ORT agreement before proceeding in the manner it did. It points to these facts: (1) in 1949 Management asked the Organization to discuss the "consolidation of certain non-telegraph offices; (2) At ensuing talks Management suggested consolidating Grants and Bayboro (among others) under one agent, providing a $215.00 monthly salary (the Bayboro Agent then received $199.92) and reimbursement for travel between stations; (3) When this proposal was rejected by the Organization, Carrier's representative stated that "if we cannot reach some satisfactory agreement there is no alternative except for me to move to discontinue several nontelegraph agencies and reclassify several telegraph agencies"; (4) In August, 1950, the Organization expressed its willingness to agree to changes at four existing stations, one of which was Bayboro-Grants; more specifically, "to continue the present non-telegraph agency at Bayboro, at a salary of $215.00 per month, the incumbent to handle the business at Grants, making such trips to Grants as might be necessary . r; (5) The ORT's proposals were not accepted since they included only two of Carrier's proposed consolidations; (6) Thereafter the matter was dropped until 1956, when Management turned to the Utilities Commission.

The Carrier denies that it was obligated to negotiate a modification of the Agreement or that its 1956 actions violated any contractual provision.

Insofar as can be determined, the situation giving rise to this controversy is not duplicated in any prior case submitted to this Division. The principal cases relied upon by Carrier (Awards 6944, 10950, 11294 among others) all concerned two positions covered by an Agreement, one of which was abolished when the work declined substantially, and the remaining work given to the employe at the other location. (The Board held, in these cases, that Management could eliminate a covered position listed in the schedule and assign work at two locations to a position listed in the schedule as covering only one location.) The cases cited by the Organization, in large part, also concerned two positions covered by an Agreement, one of which was dropped and the remaining work given to the employe at the second location (Awards 388, 3659, 5365, 5834 and others). In these cases the claims were sustained

on various grounds, including (1) The contract contained no provision for a "Joint-Agent"; (2) The contract contemplated retention of two regular positions even though full-time work was not available; (3) Management could not unilaterally abolish a contractual position when work remained and assign whatever work was left over to another employe.

In all these cases, it may be seen, Management's actions resulted in one less contract-covered position. But in the instant case, no such result followed Carrier's 1956 moves. Disregarding, for the moment, the procedure which was utilized, it is clear that the net effect of these procedures was to add to Agent Ballard's daily work assignment a 2s/x hour stint at Grants, with the requisite round-trip between Bayboro and Grants. The contract contained no fewer positions in 1957 than in 1956 as a result of this additional assignment. Ballard's daily hours of work remained the same; he retained the same one-hour lunch period he was not asked to perform duties not customarily performed by an Agent.

Under these circumstances, then, what damage was caused by Management's action? Certainly no work was removed from the Agreement. Quite the contrary, a little work was added. Was this a violation? We think not. There is nothing in the contract which prohibits Management from assigning additional tasks to an employe, tasks which fall within the purview of his craft and which can be comfortably performed within his scheduled work day. (Here, significantly, the record shows that in 1955 the actual work at Grants required about 40 minutes a day; at Bayboro, all business could be handled in less than 1% hours per day. Of course, the time on duty, as required by the Utilities Commission, was more.)

There are several Awards, moreover, which hold it permissible for a Carrier to assign work to an employe at more than one location. Thus, in Award 10950 the Board noted, in part:

"In the absence of a prohibition, numerous Awards uphold the right of the Carrier to have an employe perform work at two separate locations as long as he goes on and off duty at the same location. . . :'

In Award No. 39, Special Board of Adjustment No. 259 said:

"There is no barrier by virtue of distance and amount of time involved which hinders the performance of the disputed work by the . . . Agent within his regularly assigned hours."

While these and other decisions (where, as a result of Management's actions, an employe was required to spend part of his work day at a second location) all concerned work at two contract-covered locations, we can find no persuasive reason for reaching a different conclusion just because the work at the second location was not hitherto covered. (In this regard it may be noted that we are not dealing here with a position outside the Agreement. The Grants position was no longer in existence when Ballard was assigned his daily 11/z hour chore there.)

What, then, of the procedure which was followed? Again, this case appears to differ from most of those where similar problems have been considered. In the cited disputes, the abolishment of a position led to the removal of an employe. Not so here, since Claimant Ballard remained at Bayboro and continued to perform work there. In most of the prior cases, moreover, the

position which remained was not reconstituted. The only change, from the viewpoint of the incumbent, was that some tasks at another location were added to his assignment. Here, the Carrier actually abolished the position where the bulk of the work remained; then it established a new position.

This procedure, in our opinion was erroneous. While it is true that only about 11/z hours per day of actual work remained at Bayboro, the Utilities Commission required that agency to be open five hours a day. Under the circumstances, the many awards which state that a position may not be abolished when the work remains are controlling.

What, then, should be the remedy? Ballard might have lost his job (since he had to bid on a newly-bulletined position to which, conceivably, a more senior man could have been appointed). But he did not. As already noted, he lost no time and no pay. He has been compensated for expenses incurred in going from Bayboro to Grants. There is thus no warrant for giving him an additional 2s/z hours' pay for each day. (In this regard it may be noted that, in most cases where the Organization's position was sustained, claimants were men who actually lost compensation and were deprived of work as a result of Management's actions. In Award 3859, interestingly, the monetary claim by the Agent who had been required to perform some work at another location was denied.)

In view of these considerations it is unnecessary to rule on the significance of the 1949-50 discussions, although it seems unlikely that Carrier's effort to resolve rather extensive problems covering many locations can be considered determinative of an obligation to obtain Organization consent before proceeding in a certain way at one location where some unusual circumstances prevailed.

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

That the parties waived oral hearing;

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 by following the wrong procedure (abolishing one position and establishing another) in assigning additional work to the Agent at Bayboro.

AWARD