expense, he has no right of action outside the contract. His employment is terminable at will, and his discharge without a hearing was not an actionable wrong. * * * The appellant accepted the positions with its rights, privileges and limitations. He is therefore not within the bargaining contract and cannot claim any rights thereunder." (Emphasis supplied.)

CONCLUSION

The alleged claim for additional compensation in the form of overtime is without merit because the overtime provisions of the agreements involved clearly do not apply to the Claimant or to the position of Teller which he occupies, which by agreement was removed from the overtime and hours of service rules. As Judge Messmore, in Third Division Award No. 3458, said:

"The effect of the rules from which the manager of the Zone Revision Bureau is excepted is that such positions are not subject to the seniority rules of the agreement, nor the overtime rules, and are paid on a monthly basis to cover all services performed." (Emphasis supplied.)

Any arrangement which might have been made by the Carrier with regard to the payment of additional compensation to other employes excepted from the operation of the agreement is neither material nor relevant to this dispute, unless the Claimant is within the arrangements made and we have shown that he is not.

The Carrier respectfully requests that this claim be denied.

(Exhibits not reproduced.)

OPINION OF BOARD: Claimant occupied the position of teller in the Treasury Department of the Carrier at Omaha. During the years 1944 and 1946, Claimant was directed to assist in the distribution of retroactive payroll vouchers required by the Washington Wage Agreement of December 29, 1943 and January 17, 1944, after completing his regular tour of duty as teller. At the time the work of distributing payroll vouchers was performed in 1944, Claimant was wholly excepted from the Schedule Agreement then in force. In 1946, he was excepted from all provisions of the Current Agreement except Rules 10. 15, and 22. Admittedly, Claimant was excepted from the overtime and call rules of both Agreements. The refusal of the Carrier to pay the claimed overtime therefore violates no rule of the collective Agreements in force when the work was performed.

The record shows that Claimant was paid on a monthly basis. The general rule is that an excepted employe, pad on a monthly basis, can have no recourse to the overtime or call rules. It is contemplated that the monthly rate covers all services rendered the Carrier regardless of the amount of time the employe works in excess of the regularly established office hours. The Carrier may, of course, voluntarily enter into special arrangements with an excepted employe with reference to his rate of pay which would be binding upon the parties. This, the Organization contends, was done.

The record discloses that the preparation and distribution of the retroactive pay vouchers resulting from the wage increases heretofore described, brought about a tremendous amount of additional work on the part of those charged with its performance. That it was work assigned to Clerks under the Schedule Agreement does not appear to be controverted. Those to whom it was assigned were working overtime. The occupants of excepted positions were utilized in an effort to complete the work. As a part of its efforts to facilitate the completion of this work, the Carrier authorized the payment of overtime to occupants of certain excepted positions. Claimant contends that he is within the purview of this authorization which was directed to the three general managers on Carrier's property. It states:

"Understand that in the compilation of the back pay under the Washington Agreement it has been necessary in some of the division

superintendents' offices to use employes on excepted positions to assist timekeeping bureau. Where employes on excepted positions are so used, they should be paid for overtime on the same basis as other employes, that is, tune and one-half, and this case no allowance for supper money as seems to be the custom at some points. This ruling is based on the fact that the use of employes not associated with the timekeeping bureau for this emergency is on work other than their regular work."

The record discloses that the work here involved was not regularly assigned as a part of Claimant's duties although he did perform such work to some extent as a part of his regular duties according to his own statement. But even so, he does not come within the scope of the quoted authorization. It was addressed to Carrier's three general managers. It referred only to excepted positions in the division superintendents' offices. It was based on the fact that such employes were not associated with the timekeeping bureau. In form, it was an instruction by management to a subordinate official, lacking the usual elements of` an Agreement. Clearly, this Claimant is not within the class of employes specified in this communication.

It is urged, however, that Carrier agreed to apply the overtime rules of the Agreement to excepted positions during the period involved in the claim. In support of this contention, the Organization cites an occurrence in which, by agreement with the Organization, excepted employes were used in eliminating a war-time congestion of freight and mail at the Omaha Freight House and the Council Bluffs Passenger Terminal, and were paid the time and onehalf rate of their positions for such service. The effect of this arrangement was to do by specific agreement that which the Carrier would not have been obliged to do in the absence of such agreement. It was made to cover a specific emergent situation and can have no effect axcept as to the situation contemplated when the agreement was made. Consequently, it has no bearing on the case here presented.

It is also contended that as the work done was outside of Claimant's regular duties, that it lends some support to the claim. The answer to this is that no matter what service the Claimant performed for the Carrier, the overtime rule does not apply unless an agreement to that effect can be established.

It is asserted that the payment of overtime to some excepted employes and not to others is discriminatory. We know of no rule that requires the occupants of excepted positions to be uniformly treated. Such uniform rights have been attained for most employes by the negotiation of collective agreements. When an employe is excepted from the terms of such agreements, the benefits growing therefrom are not available to him.

The argument is advanced that as the work here claimed as overtime belonged to employes under the Agreement, that its performance by an excepted employe requires that the Carrier pay the Claimant for it. We cannot agree with this view. In the first place, Claimant's monthly salary is in payment of all the work he performs in a calendar month. In the second place, a claim for payment for the work as overtime, based on the fact that it should have been performed by employes covered by the Agreement, can be asserted only by an employe covered by the appropriate rules of the Agreement.

The Organization has failed to established an agreement by the Carrier to pay this Claimant additional compensation for the work constituting the basis for the claim. Under such circumstances, Claimant's monthly salary includes his compensation for the work for which claim is made. No basis for an affirmative award exists.

FINDINGS: The Third Division of the Adjustment Board, after giving the parties due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:

That there was no Agreement violation.

AWARD Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Third Division