SOUTHERN PACIFIC COMPANY
(Pacific Lines)
ment bearing effective date October 1, 1940, reprinted May 2, 1955, including revisions, between the Southern Pacific Company (Pacific Lines) (hereinafter referred to as the Carrier) and its employes represented by the Brotherhood of Railway and Steamship Clerks, Freight Handlers, Express and Station Employes (hereinafter referred to as the Employes) which agreement (hereinafter referred to as the Agreement) is on file with this Board and by reference thereto is hereby made a part of this dispute.
With regard to Rules 27, 28 and 33, these rules certainly are not applicable since Rules 1 and 26 are not involved.
As pointed out by the Carrier, the claim is completely lacking in merit by reason of the fact no provision of the current agreement supports the claim, and the long-standing practice on this property must control.
Even if the claim had merit, which Carrier denies, there would be no proper basis for paying the Claimant more than the difference in earnings between position No. 225 and position to which he was assigned. In this connection, attention is called to claim in Award 6209 on this property, which was presented to this Board on the basis of difference in earnings, and paid for the period determined by this Board on the basis of difference in earnings.
Carrier has conclusively shown herein the claim is unwarranted and totally lacking in merit, and asks that if not dismissed, it be denied.
OPINION OF BOARD: In 1956 this Carrier entered into a contract with the Morrison-Knudsen Company under which the latter was to construct an earth fill bottomed on rock and gravel across the Great Salt Lake in Utah. The fill when completed was to form the road bed for a second and superior main line to the then existing main line on the Great Salt Lake Trestle.
On April 4, 1956, the Carrier established a position of Steno-Clerk to· the Construction Division Engineer who had been assigned to the fill project in a supervisory capacity. Despite the Organization's contention that the Steno-Clerk position and the work thereof was within Agreement coverage and should have been bulletined to covered employes, the Carrier awarded it to an applicant holding no seniority rights under the Clerks' Agreement. Claimant was the senior bidder for the job among those employes listed on Roster 1 of the Carrier's Salt Lake Division. His bid was declined and an applicant holding no seniority rights on the Division was appointed.
While the record is not clear as to the precise supervisory duties performed by the Division Construction Engineer in connection with the fill project, it does establish that his work was for the sole benefit of the Carrier. It also shows that the work performed by the occupant of the Steno-Clerk position was for Carrier's sole benefit. He was a bona fide employe of the Carrier at all times and performed no work for the account of the contractor.
The Board finds from a preponderance of the evidence of record that work of the kind here involved is covered by the Scope Rule of the Agreement and that it may not properly be removed therefrom by the Carrier under the factual circumstances of this particular case. The Carrier's defense of past practice based upon two isolated instances, standing alone, cannot prevail. We have consistently held that past practice to be controlling must be shown to have been of sufficient consistency and duration to establish acquiescence resulting in agreement (Awards 4428 and 5877). That showing was not made here.
Accordingly, the Board finds the Agreement was violated when Carrier failed to bulletin and award the Steno-Clerk position in accordance with applicable schedule rules. The claim, therefore, will be sustained but payment of compensation to Claimant will be limited to the difference in earnings 13025--17 1035