Rule does not specify the work which falls within the Agreement. That it was intended that certain work did belong to the Clerks is an accepted fact if the Agreement is to have any validity at all. On the other hand, the contention that the Scope Rule provides that clerical employes under the Clerks' Agreement shall perform all clerical work has no foundation."

There is no material difference between the Scope Rule of the Clerks' Agreement and the Scope Rule of the Maintenance of Way Agreement. All either of them do is to specifically designate therein the various classes of employees covered by the agreement. Paragraph (a) of Rule 1 in the agreement here involved covers the Bridge and Building Department. It will be noted that there is nothing therein specifically or otherwise showing what work will be performed by employes in that department. It is understood, of course, that they will perform certain work in connection with bridges and buildings. However, to say that this rule specfically or otherwise gives employes in the B&B Department a contractual right to perform all maintenance or construction work requires reading into the rule something that is not now there. Primarily the duties of B&B forces consist of maintaining already existing facilities such as bridges and buildings. Throughout the entire history of the railorad it has been the practice to contract out certain construction and maintenance work.

CONCLUSION

In light of the foregoing record it is clearly evident that the Employes' contention and claim in the instant case is without basis and should be denied for the following reasons:

1. Claim is not supported by any rule in the working agreement.

2. Any work that may have been performed by contractors during the period in question was due entirely to inability of the Carrier's B&B forces to perform it.

3. Under the circumstances there was no violation of the agreement as alleged by the Employes.

4. It has always been the practice for the Carrier to have work performed by contractors where the Carrier did not have sufficient force to perform it, and the character and urgency of the work was such as to preclude its being deferred indefinitely, and until comparatively recently the practice has been acquiesced in by the Employes.

5. Claimant lost no time in any capacity as a result of any work being performed by contractors.

6. Your Board has previously denied claims for pay in favor of Carrier forces when work was performed by contractors, even though it was recognized that such work properly belonged to Carrier Maintenance of Way forces, when the Carrier forces lost no time. (Third Division Awards 1453, 1610: Second Division Award 1042).

7. The Board has recognized that a claimant must assume the burden of presenting some consistent theory which, when supported by the facts, will entitle him to prevail. In this case claimant has not presented any consistent theory supported by facts which would entitle him to prevail.

(Exhibits not reproduced.)

OPINION OF BOARD: The Carrier assigned to contractors the work of repairing certain buildings on the Kingsville Division which were used in connection with the growing of fruit and vegetables. The work done belonged to B&B employes under the Maintenance of Way Agreement. Claimant contends that the contracting of the work resulted in his being assigned as an

assistant foreman instead of foreman of a B&B gang. The record shows that except for nine days in October, 1946, 24 days in November, 1946 and 13 days in December, 1946, he worked as a relief foreman during the period of the claim. The laim, consequently, involves the difference in pay of an assistant foreman and a foreman for 51 days.

The record in this case hsows that the Carrier had six B&B gangs working during all the times mentioned herein. It contends that two additional gangs were required to complete the maintenance work programmed on this division but due to Carriers inability to obtain necessary personnel, such maintenance work was not completed. It is evident from the record that this claimant, even if the two additional gangs had been established, would not have been affected by the contracting of the work. He would have served as foreman of a gang engaged in programmed maintenance work which had not been performed at the end of 1946.

It is evident from the record that claimant was required to work for 51 days as an assistant foreman because of the manpower shortage in the B&B forces. If additional employes could have been hired, claimant would have served as foreman by virtue of his seniority. It was an economic condition and not the contracting of the work here complained of that resulted in his claimed loss. For this the Carrier is not liable.

The Organization contends that adequate employes could have been obtained if greater compensation had been offered and working conditions had been improved. This is pure speculation and does not constitute proof of any dereliction of duty on the part of the Carrier. The record will not sustain a finding of bad faith on the part of the Carrier in its attempts to augment its B&B forces by hiring additional employes.

We are obliged to hold that claimant's alleged loss was in no way due to the contracting of the work herein described. A denial award for compensation is required.

FINDINGS: The Third Division if 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

That the agreement was not violated as to claimant Pressley.

AWARD