There is no basis for this claim. There has been no violation of the schedule rules. The Carrier respectfully requests that the claim be denied.

(Exhibits not reproduced.)

OPINION OF BOARD: Prior to November 14, 1958 Carrier maintained three positions at Fargo, North Dakota, cashier, chief clerk, and agent. Effective November 14, 1958 Carrier abolished Cashier Position No. 161 and assigned the remaining duties to the agent. Claim is made that the work transferred to the agent was contrary to the Clerks' Agreement, and compensation is sought for Employe Louis Lotzer and all other employes affected as a result of the abolishment of Position No. 161.

Organization takes the position that Rule 1(e) of the Scope prohibits Carrier from removing work from the clerk and transferring it to employes not covered by the Agreement. It argues further that since clerks performed this work before the abolition of Position No. 161 this work rightfully belongs to this class of employes. This party also cites Rule 57 to support its con-. tention that Carrier acted improperly when it transferred the work to employes outside the Scope Agreement by unilateral action.

At the outset Carrier asserts that the portion of the claim which reads, " . and all other employes affected," should be dismissed because a submission for unnamed Claimants is not in compliance with Article V of the 1954 Agreement. On the merits, Carrier maintains that the Scope Rule does not reserve the work in question to Claimants and that assignment of work does not create exclusive right.

As to the issue raised by Carrier concerning unnamed Claimants, we find that although Claimants are not specifically named the requirements of Article V, Section 1(a) of the National Agreement are complied with because Claimants' identity can be readily ascertained.

On the merits, the significant question to be determined is whether the work transferred to the agent after the abolishment of Cashier's Position No161 is reserved exclusively to clerks.

We first look to the Scope Rule for guidance on this issue and find that it lists the positions but does not delineate the nature of the work to be performed. Organization, however, submits that since the Scope lists the position of cashier and since the clerk performed cashier's duties, position and work are synonymous; and thus the disputed work is reserved exclusively to clerks. We find, on examination of the record, that in negotiation in connection with revision of the schedule rules, Organization attempted to include the word work along with the word position. Carrier, however, refused to include other than positions within the Scope of the Agreement. In view of the failure of the parties to be explicit in the Agreement on work after deliberation on this issue, we find there was no intent to make the terms work and position synonymous. In determining whether work and position are synonymous, we find that the numerous awards are in disagreement. Because the parties in the instant case did not intend to make these terms synonymous, we are in accord with Awards No. 11755 and No. 11577 which deny the contention that position implies work.

Our study of the record also leads us to the conclusion that the cashier did not at all times exclusively perform the work in question. The cashier's

position was added to that of agent and clerk when the growth of business at Fargo, North Dakota increased. Thus we note that the agent did do cashier's work prior to the addition of a clerk, the cashier. Furthermore, on a few occasions when the cashier was ill the agent performed cashier's work. For these reasons, it appears that the work was interchangeable and not exclusively performed by clerks. The shrinkage of business led Carrier to exercise its management prerogative of reducing the number of employes and of transferring the remaining work to the agent. It had the right to transfer the work to the agent because this was work previously interchangeable between clerks and agent.

We do not observe in Carrier's abolishment of the position and transfer of the remaining work to another employe an intent to violate the collective bargaining agreement as suggested by Organization. We agree that collective bargaining agreements must be respected, but we find that the factual situation in the case of United vs Webster, 299 F2d 195, cited by Organization to support its position that transfer of work to an employe outside the Scope has the effect of destroying the collective bargaining agreement is dissimilar to that in the case at bar. In the Federal decision a position was not abolished nor was the dispute work interchangeable. Instead, non-union workers were hired to perform the identical work done by union workers who then were dismissed. Clearly the dismissal was for the purpose of destroying the collective bargaining agreement. In the instant case, on the other hand, Carrier created the cashier's position when business conditions required an additional worker and correspondingly abolished it with the decrease of business.

Both parties cite awards to sustain their positions concerning the interpretation of Rule 1(e). In these cases the factual situations are similar, but the conclusions reached in the decisions are contrary. Award No. 9416 cited by Organization holds that the work is exclusively reserved to clerks, while Awards No. 9219 and 9220 submitted by Carrier find that the clerks duties transferred to the agents are not exclusive. Since in the instant case, we conclude that the work was interchangeable between agent and clerk and not specifically reserved in scope to the clerks, we agree with the latter two .awards which hold that there was not a violation of Rule 1(e); and, therefore, there was no need for Carrier to negotiate as provided for under Rule 57.

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, .us approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

That the Agreement of the parties was not violated.

AWARD Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of THIRD DIVISION

ATTEST: S. H. Schulty

CARRIER MEMBERS' CONCURRENCE TO AWARD 12148

DOCKET CL-11871

We concur with Award 12148 in denying the claim on the merits, but dissent to that portion of the opinion reading:

"At the outset Carrier asserts that the portion of the claim which reads, `. . . and all other employes affected,' should be dismissed because a submission for unnamed Claimants is not incompliance with Article V of the 1954 Agreement. * * * "

Part III of Carrier Members' dissent to Award 10969 is hereby adopted and made a part of this dissent. The above phrase does not name the claimant as required by Article V of the 1954 National Agreement and should have been dismissed.

W. M. Roberts

G. L. Naylor