4. Award 5244 cannot control the decision here since a similar interpretation of the Northern Pacific rules were not in evidence when that decision was made.

In view of the above, the Carrier respectfully requests this claim be denied.

(Exhibits not reproduced).

OPINION OF BOARD: The facts are not in dispute. The claimants held regular assignments as Relief Train Dispatchers in Carrier's various dispatching offices. They were covered by the agreement between the parties. These positions were secured through procedure provided for in the agreement and by the exercise of seniority rights granted under the seniority rules contained therein. These relief assignments provided that they work on the position of Chief Train Dispatcher one day each week, a position excepted from the general provisions of the agreement.

On the dates set forth in the Employe's Statement of Facts claimants worked the position of Chief Train Dispatcher rate of pay. For this service the Carrier paid claimants one three-hundred and thirteenth of the yearly rate of the Chief Train Dispatcher position. When the National Five-day week agreement became effective, September 1, 1949, Relief Train Dispatcher's rate was computed on a daily basis as follows: The daily rate to be determined by dividing the yearly rate, as provided by Article III, Rule 18 (a) of the agreement. Claim is here presented to enforce payment of the Chief Train Dispatcher rate on the formula as contained in Rule 16 (a).

The Employes contend all rules of the agreement between the parties, including Rule 16 (a) apply to Train Dispatchers for work performed on each day of his assignment, including the position of Chief Train Dispatcher. This being true, the Carrier is obligated, as provided for in Rule 16 (a), to compensate claimants at the daily rate by multiplying the regular monthly rate by twelve and dividing the result by two hundred sixty-one.

Rule 18 (a) of the agreement provides: "Train Dispatchers shall be monthly employes but the monthly compensation shall be computed on a daily basis. To determine the daily rate, multiply the monthly rate by 12 and divide the result by 261*x".

The Carrier contends the position of Chief Train Dispatcher is excluded from the scope of the current agreement, and Rule 16 (a) therefore is inapplicable in this connection. Rule 18 (a) is cited. It reads: "Where relief requirements (including position of Chief Train Dispatcher) regularly necessitate four (4) or more days of relief service per week, a relief train dispatcher shall be employed and regularly assigned, and shall be compensated at the rate applicable to position worked. On ays when not engaged in 'train dispatcher' service, he will be assigned to such other service as may be directed by the proper supervisory officer and shall be paid for such service at the rate applicable to trick train dispatchers.

That Rule 16 (a) relates to train dispatchers and the monthly rate referred to can only relate to them. Therefore, inasmuch as the Chief Dispatcher's wage rate or salary data is entirely excepted from the agreement in the instant case, Rule 18 (a) is applicable and train dispatchers occupying the position of Chief Train Dispatcher are paid accordingly. Since this is true, the Carrier can properly, by unilateral action, determine the rate of pay and conditions of employment which attach to such excepted positions and to any employe that may fill it.

The question to be determined here is, when a train dispatcher working a Chief Train Dispatcher's position on a rest day and regularly assigned to such position, is such train dispatcher, under the circumstances, still subject to the terms of the contract between the parties governing his rates of pay and working conditions?

Awards of this Division adopted before the advent of The National Five-day week agreement involving claims of pay for time and one-half for a regularly assigned relief train dispatcher relieving the Chief Train Dispatcher on the regular relief days of that position held: "The claimant did not become Chief Dispatcher by virtue of the fact he performed service on that position on the day in question, and he relinquished none of his rights and privileges under the rules applicable to the regular assignment by the performance of such service." See Awards 2905, 3344, 5371, 5202, 3906, 2944, and 5904. These awards are self-explanatory and require no discussion of the point determined therein.

Award 5244, this Division, involving the same question under rules very similar to the rules here being considered based on an identical condition as in the instant case, said: "Train dispatchers may perform the work of the excepted Chief Dispatcher but that does not change them from train dispatchers where there is one holding the appointment of Chief Dispatcher. On such days the relief train dispatcher may be acting Chief Dispatcher, but he is yet a Train Dispatcher." Citing Awards 2905, 3344, 5202. See, also, Awards 5371 and 5904. The claim was sustained-the formula for calculating pay of such train dispatcher under the circumstances was in conformity with Rule 16 (a) as the same appears in the instant case.

The Carrier directs attention to Rule 18 (a) and asserts the practice between the parties has been, in reference to this rule, to use the Chief Dispatcher's monthly salary because that is the salary of the position worked, and this practice has been in effect since July 1, 1921. The language of all subsequent agreements has maintained the provision "shall be compensated at rate applicable to position worked." That the issue of practice under the agreement was not before the Board in Award 5244.

Furthermore, for 18 months after the five-day week was' effective payment was made to the relieving dispatcher in this manner and accepted.

On this phase of the case, payment was made to relief train dispatchers, relieving the Chief Train Dispatcher and occupying such positions prior to September 1, 1949 the effective date of the National Five-day week agreement, was in accordance with Rule 16 (a) at that time.

The argument of the Carrier as to "long interrupted practice in effect" is not sustainable. Eighteen months after the effective date of the agreement, September 1, 1949, having reference to the Five-day week agreement wherein Rule 16 (a) sets forth the formula for computing pay as announced therein to parties fully covered by the agreement as heretofore referred to is a reasonable time to file a claim under the circumstances.

In the light of the foregoing cited Awards of this Division and the rules heretofore set out and discussed, the claim should be sustained. As to any determination that may occur in the future with reference to Rule 16 (a) we are not privileged to determine at this time.

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;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

AWARD