Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27941
 THIRD DIVISION Docket No. CL-28341
 89-3-88-3-89
 The Third Division consisted of the regular members and in
 addition Referee Rodney E. Dennis when award was rendered.
 (Transprotation Communications International Union
 PARTIES TO DISPUTE:
 (Missouri Pacific Railroad Company

1. Carrier violated the TCU (formerly BRAC) Agreement when it abolished the Star Agents position, a six (6) day position, rated $2,700.72 per month, on the date of October 15, 1985, at Ste. Genevieve, Missouri and, on the following day, October 16, 1985, established lower rated five (5) day position of OCC Clerk No. 1, rated $100.04 per day, with relatively the same class of work.

 2. Carrier's action in the instant case was in violation of the Schedule Agreement, expressly Rule 31(b) and related rules contained therein.

 3. Carrier shall now be required to compensate Mr. G. 0. Gower and/or his successors for the difference in the daily rate of pay of OCC Clerk No. 1, $100.04 per day, and that of Star Agent rate of pay of $2,700.73 per month, beginning October 16, 1985, and continuing each work day thereafter, Monday through Friday and to include any over time accruing through and including any additional work on Saturday and Sunday each week to be pro-rated on actual time worked covering the difference in the two above quoted rates on a punitive basis until such time as the violation of the TCU Agreement is corrected and; to include all subsequent general wage increases."

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

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

This Board in Third Division Award 27940 has denied an identical claim. The reasoning applied in that decision applies equally as well to this case.
 Form 1 Award No. 27941
 Page 2 Docket No. CL-28341
 89-3-88-3-89




                          By Order of Third Division


Attest: _
        Nancy J. v -Executive Secretary


Dated at Chicago, Illinois, this 6th day of June 1989.

LABOR MEMBER's DISSENT TO

AWARD 27940, DOCKET CL-28338 & AWARD 27941, DOCKET CL-28341

(REFEREE DENNIS)


The Majority Opinion has erred in both cases at bar and has issued decisions which are contrary to precedential Award 25109 decided on the same property involving the same parties and same question which sustained the organization's position. The Majority Opinion in both instances has ignored that Award. Ignoring that lead Award has led to these two palably wrong Awards.
 For the sake of brevity we will only reiterate the facts and our position in Award 27940 as they apply equally in Award 27941.
 Award 27940 is a case wherein the Carrier abolished on October 15, 1985, the position of Star Agent/Telegrapher No. 006, Poplar Bluff,
 .-ssouri, rated $2,787.23 per month on the pretense of a "closing of an agency", and then simultaneously bullentined a new position of OCC Clerk/ Telegrapher a five (5) day position, rated $99.02 per day to be effective October 16, 1985, doing relatively the same work at a lower rate in violation of Rule 31 (b).

    Rule 31 (b) states:


    "(b) Established positions shall not be discontinued

    and new ones created under a different title covering relatively

    the same class of work for the purpose of reducing the rate

    of pay or evading the application of these rules."


      It stands unrefuted that the duties. of the two positions in question


were and are as follows:
 STAR AGENT/TELEGRAPHER DUTIES OCC CLERK/TELEGRAPHER DUTIES
 1. Post general orders and 1. Same Duty
 general notices
 2. Phone meal orders to Illmo 2. Same Duty
 for Train and Enginmen
    STAR AGENT/TELEGRAPHER DUTIES OCC CLERK/TELEGRAPHER DUTIES


        3. Work with CMS (Crew Management 3. Same Duty

        System) regarding trains called

        4. Deliver pay checks and various 4. Same Duty

        other duties as may be assigned

        5. Updating all car movements from 5. Same Duty

        Trainmens switch lists

        6. Copying car orders from customers 6. Same Duty

        s making switch lists.

        7. Getting day's billing from customer 7. Same Duty

        s sending by computer message to

        St. Louis for handling

          8. Making supply requisitions for station 8. Same Duty supplies & caboose supplies

          9. Ordering fuel s ice from local suppliers9. Same Duty for engines & cabooses

      10. Make written instructions to switch 10. Same Duty

      crews s over-the road crews i.e.,(pick

      up, set-outs, spotting instructions for

      yards, industries 6 rip tracks.)

      11. Miscellaneous duties including but 11. Same Duty

      not limited to: tracing cars,

      coordinating customer 5 mechanical

      forces needed for prompt repair and

      movement of cars.

      12. Work with the Chief Dispatcher 12. Same Duty

      13. Some minor Accounting Duties

The only difference in the two positions are Duty No. 13. Twelve (12) out of the thirteen (13) seperate major duties are still being done by the lower rated position. The Majority Opinion would ask us to believe that all the other twelve (12) duties are of a lower rated nature and that the Star Agent's.higher rate is based upon one (1) duty only. We do not believe that reasoning is logical nor do we think the Majority Opinion should have bought such a erroneous argument offered by the Carrier.
 Rule 31 (b) mandates that established positions shall not be discontinued and new ones created under a different title covering relatively the same class of work for the purpose of reducing the rate of pay or evading the application of these rules.

                                  _2_

we submit that a more careful reading of the facts revals it is clear `,at in the instant case at bar, the Carrier abolished the higher rated position of Star Agent, Poplar Bluff, Missouri, established the lower rated position of OCC Clerk/Telegrapher the following day doing relatively the same calss of work for the purpose of reducing the rate of pay and evading the application of the Rules.
 It is equally clear that this Board has repeatedly stated that the duties of a newly created position need not be identical with those of a discontinued position, all that is required is that the newly created position does relatively the same class of work. The record is clear that is exactly what happened in this instance.
 The Majority Opinion has ignored the correct facts and precedential Award 25109 which has led them to render Awards 27940 and 27941 both of which carry no precedential value. Both Awards are palably wrong and require strenvous dissent.

                                          .


                                        William R. Miller


                                        Date: June 9, 1989


-3-

RESPONSE TO LABOR MEMBER'S DISSENT

TO

AWARD 27940, DOCKET CL-28338

AND

AWARD 27941, DOCKET CL-28341


                    (REFEREE DENNIS)


The Dissent lists 13 duties that had been performed by the Star Agent/Telegrapher position and argues that 12 of such duties likewise are performed by the newly established OCC Clerk/Telegrapher position. It refers to the thirteenth duty as "Some minor Accounting Duties." The record on the property, set forth in the Majority decision, shows the "minor" duties of the Star Agent position included the handling of cash and accounts receivable for the Carrier, the responding to shipper car orders, the handling of customer complaints, and, as indicated by the Carrier's Agent for a specified territory.
 In substance, the Majority held that it was the thirteenth duty that separated the Star Agent position from that of OCC Clerk positions and which justified a higher rate of pay. Accordingly, when such duties disappeared, there was no basis in the Agreement or logic that would require the Carrier to continue to pay the higher rate of a position that no longer existed. Indeed, as was pointed out in Award 27940, the duties of the new position at Poplar Bluff, Missouri, perform precisely the same duties as other clerks working at that location, all of whom are designated OCC Clerks.
                                7G1~',c~


                                M. W. Finger t


                                R. L. Hicks


                                M. C. Lesnik


                                P. V. Varga


                                ./

                                J. E. Yost