only be unfair to the Carrier, but to other members of the Organization. It would result in this claimant receiving a higher rate of pay than any other Bill Clerk in that seniority district, including the Chief Bill Clerk. We cannot believe that any of the parties to this dispute intended any such unfair result.

"We must conclude that the monthly rate fixed by the Carrier, bid on by the claimant, and approved by the continued silence of the Organization for more than five months, was the existing daily rate for Bill Clerks, times the number of days per month the employs was regularly assigned to the work. Since this could only be 251h days per month, on the basis of a 306-day assignment, the correct rate of pay for the position was $170.60, the same wages then being received by the other Bill Clerks in that seniority district."

"We must conclude that the monthly rate fixed by the Carrier bid on by the Claimant, and approved by the continued silence of the organization for more than five months, was the existing daily rate for Bill Clerks * * * "

When consideration is given to the fact that:

1. The daily rate placed on the position of File Clerk No. 2 in the Superintendent's Office was the same daily rate as that on the position of File Clerk that had been established for many years in that same office;

2. The provision of Rule 51, Paragraph (a) provides that "The wages of any position shall be in conformity with the wages of similar kind or class in the Seniority District where created";

3. To sustain the Employes' contention and claim would result in the new position, which is in fact more or less of an assistant to the old established position of File Clerk, receiving $1.01 per day more than the old established position, thereby permitting the occupant of the new position to earn the same annual compensation in 306 days as that earned by the old established position of 365 days, which would obviously be most illogical and inequitable;

4. The letter agreement of October 13, 1940 does not apply to and, obviously, was not intended to apply in the case under consideration where a new position is created;

5. The "Opinion" and "Findings" of the Board in Award No. 2272 which declined a similar attempted application of an identical letter agreement;

No. 2 at the rate of $5.24 per day on an annual assignment of 306 days. There was in existence at that time an excepted position of File Clerk with a rate of $5.24 per day on an annual assignment of 365 days. It is evident that the daily rate assigned to the new position was the same as that applied to the excepted position. The Organization contends that under Rule 48 of the current .Agreement, the Carrier in making the assignment on a basis of 306 days rather than 365, is required to increase the daily rate to produce the same annual compensation as a 365 day assignment. Rule 48 provides:

It is the contention of the Carrier that the foregoing rule pertains only to the conversion of established positions to a daily rate of pay and has no relation to a newly created position. This would be true except for Rule 51 (a) which provides:

"The wages for new positions shall be in conformity with the wages for positions of similar kind or class in the seniority district where created."

The record indicates that the excepted position and the one involved herein were identical in character and of similar kind or class within the meaning of the rule. The Carrier appears to have concurred in this view when it fixed the daily rate of pay of the position at the identical amount fixed for the excepted position. It therefore affords a basis for determining the correct rate of pay for the new position.

It must be noted, however, that the position which we have termed the excepted position is not wholly excepted from the current Agreement. It is excepted from the call, overtime and Sunday and holiday rules. Consequently, this position may be assigned on a 365 day basis without a contractual violation. The new position, however, is under the Agreement and the position not being one necessary to the continuous operation of the Carrier, it is properly assignable on a 306 day basis. If the excepted position were brought within the Agreement, it would be subject to conversion to a 306 day annual assignment at a rate of pay neither more or less favorable than the rate then in effect. We think the Claimant is entitled to the same rate the occupant of the excepted position would receive if he were brought within the Agreement. After applying the conversion rule, that daily rate with wage increases added would amount to $6.97 per day.

It is urged that such a result would be unfair and inequitable in that File Clerk No. 2 would receive the same annual salary by working 59 days less than the occupant of the excepted position. While this is true, it results from the fact that the incumbent of the new position by being under the current Agreement is entitled to the benefits it confers. He receives the same rate that the excepted position would pay if it were not excluded from certain rules in the Agreement. It is a situation of which the Carrier can take advantage because of the non-applicability of certain rules of the Agreement to the excepted position. The Claimant is entitled to the same rate of pay which the identical kind and class of work outside the Agreement would produce if it were within the Agreement.

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 Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That the Agreement was violated as alleged.

AWARD