pumpers alone were contemplated. The use of fuel oil for locomotives and Diesels was comparatively small at that time. The term Water Service Foremen, the first positions named, bears out this fact. It seems unlikely, therefore, that the parties contemplated anything more than water pumpers at the time the rule was negotiated. Standing alone, we would be compelled to hold that the Scope Rule, in specifying the positions of pumpers, was intended to include water pumpers only within its scope."

After making this statement the award went entirely outside the Agreement and citing certain Carrier instructions with reference to water service foremen training pumpers in the operation of water and fuel oil stations, ordered the pumping of Diesel oil at Hoisington be given to pumpers under the Maintenance of Way agreement.

This decision seemed to the Carrier to be so obviously wrong and beyond the authority of the Board that we requested a rehearing of the case on its merits. This rehearing was denied but a "Ruling on Petition for Rehearing" was promulgated. The following is quoted from this ruling:

"The Carrier appears more apprehensive of the effect of the award than of its application at Hoisington. Where a practice exists, it would well prevail over the interpretation to be made in a case where that factor was non-existent. We have not said that all fuel oil pumping was the exclusive work of pumpers."

It is the Carrier's position that in view of the long time well-established practice of Store Department employes pumping Diesel oil at Omaha, there can be no support in Award 4848 for the claim here involved.

Decision MW-85, referred to in Section 9 of our Statement of Facts, and the letter of January 9, 1941 referred to therein are attached as Carrier's Exhibits "I" and "J", respectively. An examination of these documents quickly reveals that they pertain only to the matter of seniority and promotion. They merely place pumpers in the line of promotion covering Water Service Department Employes. The classification of pumper was already in the Scope Rule. The decision does not contain anything more with respect to employes covered by the Maintenance of Way Agreement than is contained in the agreement itself. It is not, in any wise, support for this claim.

(Exhibits not reproduced.)

OPINION OF BOARD: When facilities for handling Diesel oil were first installed at Omaha in 1940 the work of pumping oil was assigned to Store Department employes who have continued to perform this service except for a short period in 1951 hereinafter mentioned. Before and since 1940 pumping of water for steam locomotives at Omaha has been done by a pumper in the Water Service, Department represented by the. Brotherhood of Maintenance of Way employed. With the gradual substitution of Diesel for steam locomotives since ,X940. the quantity of oil pumped at Omaha has increased and the need for pumping water for steam locomotives has been correspondingly reduced to a point where the position of water pumper at Omaha was abolished in May 1951.

In early 1951 enlarged Diesel oil facilities were constructed at Omaha and the oil pumps placed in operation on April 25 by water service employes who installed them. W. M. Hardenberger, a pumper employed in Carrier's Water Service Department, operated these oil pumps from April 25 to May 5, 1951 when the work was taken over by Store Department employes and the position of pumper discontinued. The Carrier asserts that this operation of the oil pumps for ten days was a test period and when the facilities were determined to be satisfactory for normal operation on May 5, they were then turned to Store Department employes by whom pumping oil at Omaha had always been done.

Claimant contends that the work of handling Diesel and fuel oil is properly within the scope of the Maintenance of Way Agreement and should have been assigned to pumpers in the Water Service Department; that pumpers handle oil at other points on this property which indicates that such work is construed to be within the scope rule of the Maintenance of Way Agreement; and that when the Carrier assigned the work at Omaha to Store Department employes it violated the scope rule. Specifically claimant asserts that Award 4848 of this Division issued April 28, 1950 settles this issue in its favor.

It should be noted that the work of handling Diesel and fuel oil for locomotives on this property has never been performed by water service pumpers exclusively. Although they have done this work at a few points on the system it is also done by other than maintenance of way employes at several points. The record shows that fuel oil is handled at 24 stations on the property and water service employes perform this service at less than one-third of these stations. The record shows in other words that the parties to the Maintenance of Way Agreement have heretofore accepted the fact that pumping oil at all points on this property was not the exclusive function of water service employes.

The sole issue for determination here is, therefore, whether Award 4848, which involved these same parties, can properly be construed to hold that pumping of oil at Omaha belongs to maintenance of way employes.

Analysis of the docket in Award 4848 discloses that facilities for handling oil at Hoisington, Kansas were intially installed in November 1942 and thereafter until June 1945 the operation of fuel pumps and maintenance of pipe line and tanks used in connection therewith was done by employes of the Water Service Department. In June 1945, the Carrier removed this work from maintenance of way employes and assigned it to Mechanical Department forces. It was also shown that there was no past practice at Hoisington which justified that action. This Award held that the scope rule of the Maintenance of Way Agreement construed alone referred to water service pumpers only, but in view of the sum of other factors, viz., Carrier's Rules and Regulations of September 1, 1941, its subsequent assignment of pumping oil to water service employes in November 1942 and the absence of past practice to justify assignment of the work to mechanical forces, the work came within the Maintenance of Way scope rule. It will also be noted that the Ruling on Petition for Rehearing in that case specifically stated that this Division had "not said that all fuel oil pumping was the exclusive work of pumpers" and that "where a practice exists it could well prevail over the interpretation to be made in a case when that factor was non-existent".

We think the situation at Hoisington, Kansas is clearly distinquishable from that shown to have existed at Omaha and that Award 4848, correctly construed, requires denial of the instant claim. The work of handling Diesel oil at Omaha was assigned to Store Department employes in 1940 before the Carrier's Rules and Regulations relied on in Award 4848 were in existence. Award 4848 holds that the language of the scope rule of the Maintenance of Way Agreement does not include oil pumpers among employes of the Water Service Department. Therefore the inference is that in 1940 the parties to that agreement did not interpret the rule to mean that oil pumping at Omaha was work belonging to maintenance of way employes exclusively. The present scope rule is identical with the rule then in effect. So far as the present docket indicates, no objection was made to other employes performing this work at Omaha mill the position of water pumper was abolished on May 5, 1951 immediately after the ten day period during which he had handled this work. The Carrier's explanation that this short assignment was for tests purposes only is not unreasonable in the circumstances shown, and such assignment does not support the instant claim. For the reasons stated we hold it has not been shown that the Carrier violated the Agreement as claimed. It is therefore unnecessary to pass on the question of third party notice raised by the Carrier.

That the Agreement was not violated.

AWARD