tion of Rules 27 and 28 has the right to an investigation under Rule 50 of the current agreement on the basis of unjust treatment, the carrier submits that if such right does not' exist it would accrue to but one unsuccessful applicant. Where there is only one position to be filled, only one employe can be assigned to such position; it follows, therefore, that if there was unjust treatment involved in not assigning an unsuccessful applicant, such unjust treatment could only affect one employe. Such being the case it likewise follows that but one unsuccessful applicant would be entitled to an investigation under Rule 50.

It will be noted that in its statement of claim the petitioner alleges that each of the claimants is entitled to investigation under Rule 50 in seniority order. In other words, the petitioner is contending that the carrier had the obligation to accord te senior unsuccessful applicant an investigation under Rule 50 first, and then, if it was determined that he was not qualified for the position, each of te other unsuccessful applicants would be accorded an investigation in seniority order to determine if they were qualified. Otherwise stated, it is the petitioner's position that in the event applicants for position excepted from the application of Rules 27 and 28 are not awarded the position each of said unsuccessful applicant's, regardless of the number, has the right to an investigation under Rule 50. Under this position if there was but one position involved to be filled and there were fifty (50) unsuccessful applicants each of the fifty (50) unsuccessful applicants would be entitled to an investigation under Rule 50 in seniority order, that is, of course, if each successive investigation developed that the employe requesting such investigation were found not to be qualified.

The carrier submits that the petitioner's interpretation of Rule 50 in this respect is by no means reasonable and is contrary to the spirit and intent of said rule.

The carrier further submits that if the Division should find, the carrier is confident that it will not, that any of the claimants had a right to an investigation under Rule 50 ecause of not being awarded the stationmaster position at Tucson, the Division will likewise determine that but one of the claimants was entitled to said investigation and that it was incumbent upon the petitioner to determine which of the unsuccessful applicants (claimants) was qualified for said position and to have requested an investigation only for such (one) unsuccessful applicant.

CONCLUSION: The carrier submits that it has conclusively established that the claim in this docket is without basis or merit and therefore respectfully requests that it be denied.

OPINION OF THE BOARD: The Carrier, desiring to establish the position of Stationmaster at Tucson, Arizona, conferred with the Organization and obtained a letter agreement permitting the Carrier to establish the position at a monthly salary to cover all services required and to except the position from the promotion, assignment and displacement provisions of Agreement Rules 27 and 28. he Carrier assigned J. A. Ray to the position, he being an employe of the Traffic Department holding no seniority rights on Roster No. 3 of the Tucson Division, in which seniority district the position in question was established.

Claimants Kline, Kerr and Freeman held seniority rights on Roster No. 3. Each applied for the position of Stationmaster at Tucson but their applications were disregarded and the position given to Ray. Each requested an investigation in accordance with Rule 50 of the current Agreement "to determine our qualifications for position of Stationmaster at Tucson." The Carrrier offered an investigation to any one of the three that the Organization would designate but refused it as to all. The Organization declined the offer.

It is first contended by the Carrier that all Stationmasters on its property were excepted from the current Agreement and that the conference result-

ing in the letter agreement of July 16, 1943, was only in deference to the Organization. It is true that the Agreement lists several specific Stationmaster's positions as being excepted from the scope of the Agreement. It must be borne in mind that the Agreement does not declare that all Stationmasters are excepted but proceeds to name those that are excepted. This evidences an intent that any positions of stationmaster subsequently established shall be under the Agreement unless they are also specifically excepted. By naming those excepted, all others must necessarily be considered included. Award No. 2009. We conclude therefore that the position of Stationmaster at Tucson was within the current Agreement except to the extent it was exempted therefrom by the letter agreement of July 16, 1943.

Rule 33 (f) requires that in assigning new positions, preference will be given to employes within the scope of the roster where the new position was created. The letter agreement did not remove the applicability of this rule from the position of Stationmaster at Tucson. The letter agreement did, however, relieve the Carrier from giving effect to Rules 27 and 28. The effect of this was to free the position from any right to promotion based on seniority, fitness and ability. It likewise freed the position from the necessity of the Carrier to make the assignment on the basis of seniority, fitness and ability. The net result is that the Carrier was limited in making the assignment to an employe within the scope of the Agreement, with employes on Roster No. 3 having a preference to the position. It naturally follows that Claimants were not entitled to an investigation under Rule 50 to determine their fitness and ability for the position because after the elimination of Rule 28, fitness and ability as used in the Agreement was no longer a condition precedent to the assignment.

We do think that Rule 50 still applies to the position of Stationmaster at Tucson. An investigation might be properly requested if preference was not given to the Claimants because of ill-will, fraud, or similar reasons. No such allegations appear and consequently the Carrier cannot be said to have acted unfairly toward the Claimants in refusing an investigation as to fitness and ability.

The record shows that a similar position was filled at Phoenix, Arizona, at about the same time with an employe on Roster No. 3. It also shows that Ray was subsequently removed from the Stationmaster's position at Tucson and Kline, one of the Claimants here and an occupant of a Roster No. 3 position, was appointed in his stead. It might be urged that failure to give Kline the position in the first instance indicates failure on the part of the Carrier to give the required preference. We do not think so. There must be some evidence of bad faith on the part of the carrier before a violation of the preference rule can be properly asserted. We find no such evidence here.

An oral understanding is alleged by the Claimants to the effect that the Carrier agreed at the conference resulting in the letter agreement to assign a Roster No. 3 employe to the position. The oral agreement cannot be given effect. The letter agreement must be considered as merging therein all mutual meetings of the minds of the parties at the time of and prior to its execution. If this were not so, written agreements could have no more dignity than an oral one.

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, as approved June 21, 1934;

AWARD