There is no dispute that the abolished position was in a class occupied by employes affected by the Scope Rule and was a position covered by the Agreement. Rule 1(f)(1) and (2) read:

"(f) When a position covered by this agreement is abolished, the work previously assigned to such position which remains to be performed will be assigned in accordance with the following:

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

(2) In the event no position under this agreement exists at the location where the work of the abolished position or positions is to be performed, then it may be performed by an Agent, Ticket Agent, or Ticket Seller, or by a Yardmaster, Foreman, or other supervisory employe, provided that less than four hours' work per day of the abolished position or positions remains to be performed; and further provided that such work is incident to the duties of such Agent, Ticket Agent, Ticket Seller, Yardmaster, Foreman, or other supervisory employe."

In the record made on the property, and not rebutted by Carrier, we find Clerks' description of the involved work as performed after the abolishment of the position:

" . . Foreman comes to storeroom with 1 or 2 mechanics. They all lookup part numbers in Stores Department catalogs, reference is then made to the material index location file to find location of material, then follows disbursement of material . . ."

Carrier's description of the work performed prior to the abolishment of the position ("passing material over the counter") is inadequate; we find that the work involved prior to the abolishment of the position was in fact as we described it in the first paragraph of this Opinion.

WAS THE WORK ELIMINATED?

By comparing descriptions of the work as performed before and after the abolishment of the position, we find, as a fact, that the involved work was not. eliminated; only the last bit, passing material over the counter to the mechanic, was eliminated; the balance remained and was performed by persons not covered by the Agreement.

IS RULE 1(f)(2) APPLICABLE?

There is no dispute in the record that other positions covered by the Agreement remained in existence at the location where the work was to be performed. Thus subdivision (2) of Rule 1(f) was not triggered and does not apply to the events involved here.

Carrier claims that the same change and procedure as here was made and continues to operate elsewhere on its System without objection by Clerks. Clerks deny that there was no effeetvie objection by them.

If the word "work" in Rule 1(f) was intended to be unmodified, as it appears in the Agreement, and is thus not restricted only to work otherwise exclusively reserved to Clerks, as, in effect, is argued by Carrier, then it would not be necessary for us to deal with this factual dispute: We would then be dealing with all of the work assigned to a specific position, and how and by whom that work was performed elsewhere in connection with a possible unprotested violation of the Agreement at that place would not clear the way for a violation of the unambiguous injunction of Rule 1(f) here.

IS "WORK" IN 1(f) LIMITED TO WORK OTHERWISE

RESERVED TO CLERKS?

Resolution of this dispute turns on a correct reading of the word "work" in Rule 1(f). The Rule, when read giving usual meanings to the language, establishes procedures and limitations for the assignment to others of work previously assigned to and abolished position. There is no indication in the text of the Rule that the only such work intended to be covered by the Rule is work of a kind reserved elsewhere in the Agreement exclusively to Clerks'; on the contrary, some of the provisions of Rule 1(f) "indicate that some of the work referred to is not of the kind exclusively the Clerks', but is of a kind which may be normally performed as a duty incidental to their position by others than Clerks. Thus unless we find that Carrier has presented persuasive evidence to the contrary, there being no obscurity or obvious ambiguity, we must find that the word "work" in Rule 1(f) refers to all of

the work previously assigned to the abolished position, including work which is not otherwise reserved exclusively to Clerks.

Cited to the Referee in support of Carrier's position were numerous awards. On the property or in its Ex Parts Submission Carrier cited Award Numbers 3431, 5391, 7350, 6767, 3216, 5397, 7081, and 8021. Among others referred to in the panel discussions were Award Numbers 10894, 12341, 12513 and 12514. The others cited were in effect duplicative of these.

Awards 7081 and 8021 involve different issues (work on unassigned days) and do not involve a discussion of a rule such as Rule 1(f) here; Awards 3216, 3431, 5397, 7350 and 8767 do not involve a discussion of a rule like 1(f). If Award 8767, cited by Carrier on the property, were applicable here it would tend to support Clerks' claim because it sustained Clerks in that case under circumstances similar to those here; but there were differences in the facts and the award there was made on the basis of the Scope Rule without discussion of a rule such as 1(f).

Awards 12513 and 12514 were decided on the basis of following Awards 10894 and 12341. Award 10894 warns that it is "limited to the particular facts of this case."; in it the primary duties of the abolished position were found to include: "Filling MP 151 orders at counter . . ," and the Board found:

" . all of the above listed duties of this position which remained to be performed were assigned to other positions covered by the Clerks' Agreement . . ."

11. . . the function of filling MP 151 orders at the counter . ceased to exist . . After the position in question was abolished, material required . . during the hours 11:00 P. M. to 7:00 A. M. usually was procured by the enginehouse personnel from a working stock section set up in the enginehouse in the Crew Dispatcher's office, and stocked by the storehouse employes who worked on the first and second tours . . . The only issue is whether the procural of materials from the storeroom by the Gang Foreman under the specific circumstances of this case is work within the Agreement . . . In our opinion the occasional procural of an item of material from the storehouse by the Gang Foreman as established by this record and under the specific circumstances of this case is not work in violation of the Agreement and does not constitute 'Filling MP 151 orders at counter', therefore this claim cannot be sustained."

It is apparent that the facts as found in Award 10894 are distinguishable in critical respects from those in this case; furthermore, there is at least an implication in Award 10894 that if persons other than Clerks had been found to have performed the function "Filling MP 151 orders at counter," a violation may have been found.

Award 12341 was based on findings (as distinguished from this case) that all items of work of the abolished position were assigned to another covered position, and that work similar to work involved here was not part of work there described in a bulletin as "attending Storehouse"; the reasoning and evidence leading to this latter conclusion are not set forth in the award.

Awards 10894, 12341, 12513 and 12514 thus do not help Carrier in its burden of proving that an unexpressed restricted meaning was intended in the word "work" in Rule 1(f) here.

Award 5391 is cited by Carrier as being in an identical situation. It contains a warning in the last line of the Opinion: "This award is limited to the particular facts of this case."; and there are some differences between the facts of that case and this one: there the description of the involved work made no reference to the details we have related here; there Carrier's estimate that the disputed work took only 20 minutes a day is noted with no dissent as to that fact by Clerks; here Carrier's estimate that a similar small amount of time is involved is so disputed and without resolution in the record that we are unable to determine how much time in fact is involved. But, in spite of such factual differences, the base on which Award 5391 rests does support Carrier's contention in this case, and is representative of the line of similar awards cited to the Referee in this case. The "Assignment of Work Rule" (1(f) in this case) is the same in 5391 as here. Award 5391 says:

"There is no question that under the scope rule of the agreement as interpreted in numerous awards by this division, if work within the agreement remains to be done after the postions were abolished which was not assigned to other employes within the agreement but instead was assigned to employes outside the agreement, there would be a violation of the agreement.

The only issue is whether the procural of materials from the storeroom by mechanics under the specific circumstances of this case is work within the agreement . . ."

Award 5391 does not recite the reasoning on which its apparent conclusion that "work" in the Assignment of Work Rule refers only to work reserved otherwise exclusively to Clerks; without direct reference to or discussion of the Assignment of Work Rule, Award 5391 deals with the dispute under the Scope Rule. We are unable to discuss, agree with or disagree with the absent reasoning.

We agree with the reading of the Assignment of Work Rule given by Referee Coburn in Award 12901, a case involving basic facts similar to those in this case and to those in Award 5391. In sustaining Clerks' claim, Award 12901 says:

"Its (3=C-2's-the Assignment of Work Rule in Awards 12901 and 5391) language is clear, precise, unambiguous, and mandatory. It says, interalia, that the work `previously assigned' to an abolished position which `remains to performed' will be assigned, under subparagraph (1), to another clerical position or positions remaining in existence `at the location where the work of the abolished position is to be performed. . . : "

x ~ > s

. the Board finds no necessity for exploring at length the much debated issue of proof of an exclusive right to the work by clerks under what has been characterized as a general, non-specific Scope Rule. There is nothing general or ambiguous in the language of Rule 3-C-2 applied to the facts of record here. The work was assigned by bulletin to the clerks and was performed by them. If it remained to be performed after abolishment of the clerical positions

it had to be assigned to the remaining clerks' jobs at the location under Rule 3-C-2 (a) (1) . " [Note: 3-C-2 (a) (1) in Award 12901 is the same as 1(1)(1) in this case.]

If Carrier would have us read into Rule 1(f) a limit to the meaning of the word "work" which is not spelled out in the Rule, it was up to Carrier to supply evidence sufficient to convince us that such an unstated limitation was. intended by the parties to the Agreemen;t Carrier failed to do this. Thus, we find that in failing to assign the involved work to other clerks at the location Carrier violated Rule 1(1)(1).

As we noted above, we are unable to determine from the record precisely how much time was involved each day of the violation; we are not persuaded, however, that more than a call each day was involved. Therefore, in sustaining the claim, we will limit the remedy to awarding pay to O'Leary for a call on each day, except his relief days, beginning on November 18, 1960, and for as long as the violation continues.

The record in this case shows that a "third party notice" was served on Railway Employes Department notifying it of the pendency of this dispute before this Division of the Board, to which Railway Employes Department responded with the standard letter reserving its rights under its agreement with Carrier and disclaiming involvement in the dispute between Clerks and Carrier. While this case was still under discussion among members of this Board, including the Referee, the Supreme Court issued its decision in Transportation-Communication Employes Union v. Union Pacific Railroad Co. (decided 12(5166). The information in this record is not adequate for us to determine what, if any, is the third party interest; thus we here come to no conclusion on this question.

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.

AWARD