(Brotherhood of Railway Airline and Steamship Clerks
 ( Freight Handlers, Express and Station Employes
 PARTIES TO DISPUTE:
 (Southern Pacific Transportation Company (Pacific
 ( Lines)

(a) The Southern Pacific Transportation Company violated the current Clerks' Agreement when it failed and refused to allow employe F. F. Kinisky to displace
(b) The Southern Pacific Transportation Company shall now be required to allow employe F. F. Kinisky eight (8) hours' additional compensation at rate of Agent, Salinas, November 11, 12, 15, 17, 18, 19, 20, 21, 24, 25, 26, 27, 28, December 1, 2, 3, 6, 7, 8, 9, 10, 13, 14, 15, 16, 17, 20, 21, 22, 23, 24, 27, 28, 29, 30, 31, 1971; January 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, 17, 18, 19, 20, 21, 24, 25, 26, 27,

 28, 31, February 1, 2, 3, 4, 7, 8, 9, 10, 11, 14 and 15, 1972, and each date thereafter that the violation continues.

 OPINION OF BOARD: After Claimant was displaced by a senior employe
 from a Star Position at Monterey, he attempted to
 displace a junior employe from a Star Position at Salinas but was re
 fused by Carrier. Rule 33 (h), part of the Rule relating to Adver
 tising and Assigning Positions, reads as follows:









                  Docket Number CL-20443


      "(having five (5) or more years seniority) selected by the proper officer of the Carrier from the basic seniority roster or Master Roster (in that order) on which the vacancy occurs. Where a suitable employe for the position cannot be found on such seniority rosters, the Carrier is privileged to make a selection from the Master Roster of one of the other regions of an employe (having five (5) or more years seniority), and if this is done such employe shall be governed by the provisions of Rule 45(f)."


Petitioner relies largely on Rules 27 and 41 and contends that Rule 33 (h) does not supersede th 41 read in pertinent part as follows:

                  "RULE 27


          PROMOTIONS, ASSIGNMENTS, DISPLACEMENTS


      Employes covered by these rules shall be in line for promotion. Promotions, assignments and displacements shall be based on seniority, fitness and ability; fitness and ability being sufficient, seniority shall prevail.


                    RULE 41


          POSITIONS ABOLISHED, DISPLACEMENTS AND

          REDUCTION IN FORCE


      (a) An employe whose position is abolished, or who is displaced under conditions not otherwise provided for in these rules, may, within five (5) calendar days, or if on vacation, leave of absence,or absent by reason of illness or other physical disability, within five (5) calendar days from date of return, displace a junior employe. An employe will not be permitted to wo Guaranteed Extra Board employe during the five (5) day allowable displacement period, unless he becomes a Guaranteed Extra Board employe during the five (5) day displacement period by displacing a Guaranteed Extra Board employe"

                  Award Number 20514 Page 3

                  Docket Number CL-20443


Carrier first argues that the Claim is procedurally defective with respect to the damages claimed. We do not agree with Carrier's position since it is evident that at no time was Carrier misled with regard to any aspect of the Claim..

 The Organization argues that " ....Carrier's action is arbitrary and capricious and that their reliance on Rule 33 (h) is a device to favor one employe over another at their discretion, rather than placement of an employe based on sen 33 has no bearing on displacements. 3. Rule 41 is applicable in the event of positions being abolished, displacements or reductions in force.

 Carrier asserts that the clear language of Rule 33 (h) provides that at all times, continuously, and without any qualification after expiration of the notice, the position shall be filled with the best qualified employe. Carrier argues that Petitioner's position in this case would modify this language in that the best qualified employe would fill the position only until some senior employe desired to displace him. Carrier. also asserts that under the predecessor TCU agreement the same rule had been in effect since 1944 and Carrier's interpretation and application of the rule had never been questioned.

 Petitioner argues that the past practice relates to a predecessor agreement, prior to the consolidat practice which is contrary to the clear language of the agreement is controlling and finally Carrier's past practice argument is unsupported by proof and hence is invalid. We do not agree with Petitioner's position with respect to past practice. First we have held (Award 19800) that the consolidation of clerks and telegraphers agreements did not affect the meaning and application of existing rules and practices. Further, w to the matter of the clear language of the agreement, we have two problems: first, if we accept Petitioner's point of view, we would be modifying Rule 33 (h) by inserting the phrase, "except in the event of displacement"; if we accept Carrier's position we would be forced to modify Rule 41(a) by adding to the first sentence "except for Star Positions."
                  Award Number 20514 Page 4

                  Docket Number CL-20443


Petitioner cites Award 11335 in support of its position. We note that the rules in that dispute were quite different than those herein; in that Award, additionally we said that there was adequate rule protection against the filling of a position similar to a Star Position through displacement by an employe considered unacceptable by management. If we accepted Petitioner's position, such would not be the case in this dispute; moreover the rule herein provides for the "best qualified employe". We think more in point the position taken in Award 6723. In that matter, with closely parallel rules and facts, we said:

        "To apply the general displacement rule to asterisk positions as contended for by the Organization, would render Carrier's free choice in making appointments thereto a mockery. We say this because under such theory, any such appointee could immediately thereafter be swept from the position by a senior emplo irrespective of his qualifications, ....We should not assume that the parties intended to do a useless act in negotiating Rule G -II, nor should we so interpret an Agreement so as to result in an absurdity when a path is open to effectuate an expressed intent ...."


We find that the meaning of Rule 33 (h) is clear and unequivocal: it does not provide for an excepti the right to determine and designate the best qualified employe for a limited number of positions, with only the qualification that such employe must have a minimum of five years of seniority. This evident intent of the parties is buttressed by the unchallenged practice under the TCU predecessor agreement and the reasoning in Award 6723 above. We have repeatedly held that the conduct of the parties over a period of time is the best evidence of their intent (See Award 19959 and many others).

      For the reasons indicated above, the claim must be denied.


        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


      That the parties waived oral hearing;


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;
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                  Docket Number CL-20443


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

      That the Agreement was not violated.


                  A W A R D


      Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:~,
 Executive Secretary

 Dated at Chicago, Illinois, this 8th day of November 1974.

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