and he is, therefore, in no position to complain; he suffered no loss in earnings and was, as clearly shown, in exactly the same spot with the same rights as would have been the case had the position been bulletined.

There has been no violation of the agreement and the claim should be denied.

(Exhibits not reproduced.)

OPINION OF BOARD: The Claimant in this case occupied a position with assigned hours of 5:30 A. M. to 2:30 P. M. when he was notified that effective February 23, 1960, his hourly assignment of the same position would be changed to 5:00 P. M. to 1:00 A. M. Petitioner alleges that the note to Rule 17 of the basic Agreement was violated. It is quoted verbatim below:

"NOTE: If the starting time of an established position is so changed as to convert said position from a day to a night assignment, or vice versa, such change shall be deemed to constitute the abolishment of said position and the creation of a new position which must be bulletined under the provisions of Rule 10."

The Carrier readily admits that the new position in accord with the above quoted note, was not bulletined because of an oral Agreement between the Trainmaster, its Agent and the Local Chairman, the Agent of the Organization. In view of this oral Agreement the Carrier contends that the Petitioner is now conclusively estopped from pursuing his claim. We cannot agree with this reasoning. Neither agent had an authority from the principal contracting parties to change or in any way modify the written Agreement. Further, it is too fundamental and too well settled by many awards of this Board that the written contract cannot be changed by an oral Agreement, to require further elaboration. This is not to say that the written Agreement cannot be revised, but to accomplish such revision certain procedures must be followed, all of which are contained in the basic contract. Such procedures however are not at issue in this case.

We must therefore dismiss the oral Agreement as having no significance in the instant dispute. We direct our attention to the written note to Rule 17. There is no question that the position in controversy was changed from a day time to a night time assignment. There is no question that such a change constituted the abolishment of the subject position. There is no question that under these circumstances a new position was created and that this new position should have been bulletined under the provisions of Rule 10. This was not done and therefore we find that the Agreement was violated as stated in Claim number 1.

We come now to the monetary portion of the claim. The Claimant indisputably had two privileges or rights emanating from the change in hours. First, he had the right to retain his position if his seniority permitted, and second the right to displace within 10 days. He was not denied either right, but retained his position and chose not to exercise his displacement rights. These latter rights have nothing to do with the bulletining or failure to bulletin the position, because once his hours had been changed, his displacement rights immediately vested in him. The Claimant found himself in exactly the same position he would have been in had the position been bulletined. He suffered no loss in earnings. We are therefore faced with a situation where we have no damages accruing to the Claimant and no contractual authority for the imposition of a penalty. In view of this, we have no alternative but

to deny the claim for compensation requested in Claim number 2. (Award 12131) inter alia.

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 Agreement was not violated.

AWARD