carrier, from the president down to the laborer, who do not perform some clerical work in connection with their regularly assigned duties."

When consideration is given to the facts of record in this case which conclusively show:

1. The position of Tax Accountant in the Auditor's Office at Houston is properly designated an official position;

1 2. The position of Tax Accountant was created for the express and primary purpose of relieving the Assistant Auditor of his official duties in connection with the handling of tax matters due to the increased volume of work and the continuously increasing complexities involved in the handling of tax matters for the Carrier;

3. The work performed on the position of Tax Accountant is exactly the same work that has previously been performed on the official position of Assistant Auditor;

4. No work is being performed on the position of Tax Accountant that should properly come within the scope of the Clerks' Agreement, or that was previously performed on a position coming under the provisions of the Clerks' Agreement;

5. No position coming within the scope of the Clerks' Agreement has in any way been adversely affected as a result of establishing the official position of Tax Accountant;

it is clearly evident that there is no basis for the contention and claim of the Employes as set forth in paragraphs (a) and (b) of their Ex Parts Statement of Claim. Therefore, it is the position of the Carrier that the contention of the Employes should be dismissed and the accompanying claim accordingly denied.

OPINION OF BOARD: The question for this Board to determine is: Is the position of Tax Accountant in the Auditor's Office at Houston, Texas, an official position as contended by the Carrier, or is the position one covered by the Clerks' Agreement of November 1, 140 and a Memorandum of Agreement, as contended by the Petitioner?

Petitioner relies upon Rule 1 (the Scope Rule), Rule 2 (Classification Rule), Rule 7 (Promotions, Assignments and Displacements Rule), Rule 9 (Bulletins Rule), and the Memorandum of Agreement, which reads:

"I; a) It is recognized and agreed that all of the work referred to in Rule 1 of the Agreement dated November 1, 1940, between the Carrier and the Brotherhood belongs to and will be assigned to employes holding seniority rights and working under the Clerks' Agreement, except as provided below. * * *"

The record discloses the following facts. Late in the year of 1943, the Auditor, L. M. Edrington, advised General Chairman Dyer of the Clerks Organization that he had requested authority to establish the position of Tax Accountant and stated if such position was authorized, he desired to add it to the positions covered by paragraph (c) of Rule 7, (which shows a list of positions excepted by the seniority rule). The General Chairman stated that the suggestion would be agreeable if the Carrier would agree to remove one of the positions of Traveling Accountant in Auditor Edrington's Office from Rule 7 (c) as he did not want to increase the number of excepted positions. Without any further conference in regard to this subject the Carrier established the position of Tax Accountant on December 1, 1943 and then placed Traveling Accountant Peterson in the new position. The two positions of Traveling Accountant are under Rule 7 (c).

Petition in its ex parts submission says:

"All income tax reports were prepared by an employe working under the Clerks' Agreement prior to December 1943".

To support this contention Petitioner relies aPon Exhibit "A". Exhibit "A" contains extracts of a letter written by Peterson addressed to Edrington and is dated July 3, 1943. The pertinent paragraph of that letter is as follows:

"I have prepared all income tax reports exclusive since 1938and prior to that time assisted in preparing them. The other duties I now perform have not changed in nature during the last fifteen years."

The letter just referred to was written in reference to a claim in Docket CL-2306, Award No. 2343. That claim involved the position of Office Manager in the Auditor's Office at Houston, Texas.

In the Carrier's submission, it denies that the work of Tax Accountant was done by any other person than E. S. Banks prior to December 1, 1943. Banks held the official position of Assistant Auditor and handled as a part of his duties all matters pertaining to income, excess profits taxes, etc. To support its statement the Carrier relies on tree letters. The first one is written by Banks and addressed to Edrington, dated April 17, 1946. In effect it states that prior to the year 1942 large deficits in taxable income were sustained and no income taxes were payable; in those years preparation of returns consisted merely of copying figures from records on tax forms. But due to the increase in traffic in 1942 and the enactment of the Federal excess profits tax and the sharp increase in income tax rates, he (Banks) took charge of the preparing of income and excess profits tax reports until that work took practically all his time and it was necessary to create the position of Tax Accountant to relieve him. On April 15, 1346, Peterson wrote Auditor L. M. Edrington in which letter he says, in speaking of the duties as Tax Accountant, "Since this position was created, I have been performing the same class f work under it as was formerly assigned to Mr. Banks as Assistant Auditor * * * and the work which I perform as Tax Accountant, has not diminished any work performed by the clerical forces."

Carrier also relies upon a letter written by Peterson to Mr. H. E. Roll, Chief Personnal Officer, in which he states:

"The work referred to in my letter of July 3 1943, is not the same kind or class as is now performed under the position of Tax Accountant."

Thus, we have a conflict between the evidence offered by the Petitioner and the arrier. The Petitioner mainly relies upon Peterson's letter dated July 3, 1943, and its Exhibit "H" The Peterson letter of July 3, 1943, was written in regard to Award No. 2343 and at most is impeaching evidence and has very little probative force. Exhibit "H" is a bulletin dated July 2, 1945, and under the description of duties it does not refer to Federal income taxes or excess profits taxes. This Exhibit does not support Petitioner's contention. We think that Peterson's letter of July 3, 1943, was satisfactorily explained by the Carrier. We have concluded from the entire record that the duties performed by the position of Tax Accountant were not any of the duties performed by the position of Traveling Accountant and that the duties of the Tax Accountant were formerly performed by E. S. Banks who held an official position. Therefore, none of the duties performed by the Tax Accountant were formerly perormed by an employe covered by the Clerks' Agreement.

Nor do we think that the position of Tax Accountant comes under the Scope Rule. Rule 1 names "clerks", "accounting", "bookkeeping machines", and "the performance of clerical work or in lieu of clerical work." Rule 2 specifically mentions "compiling, writing and/or calculating incident to keeping records and accounts * * * reports, statements, or similar work

shall be designated as clerks." Under these rules and the memorandum Agreement there is no mention of the position of Tax Accountant or the duties of preparing Federal income tax or excess profits tax reports. It would require a person skilled in Internal Revenue Commission rulings and

court decisions to properly prepare income tax and excess profits tax reports. There is no showing in this record that such reports were in contemplation of the parties when this Agreement was executed. Tax Accountant is much more than a clerical position and the really important part of the work goes far beyond the compiling, writing and/or calculating incident to keeping records and accounts, reports, statements or similar work which would ordinarily be regarded as clerical.

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 Employs 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 did not violate the Agreement.

AWARD