PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The Carrier violated the Agreement when it assigned and used T. Throne instead of W. Burg to fill a temporary vacancy of track foreman, System Gang N1 for the period November 12, 1979 to January 2, 1980 (System File ITRR 1980-2).
(2) Mr. W. Burg be allowed the difference between what he would have received at the track foreman's rate and what he was paid as a large machine operator during the period referred to in Part (1) hereof.
OPINION OF BOARD: A track foreman on Carrier's System Gang No. 1 (headquartered
 in Edwardsville, Illinois) became disabled for a period of
 approximately six weeks. His position was filled temporarily by a truck driver
 attached to Gang 1. Claimant, here, a large Machine Operator not a part of
 Gang 1, asserts that, being qualified for the temporary promotion and being
 senior to the truck driver, he (Claimant) should have been given the job. It
 appears on the record before us to be uncontroverted that Claimant*was, indeed,
 qualified and senior.
The relevant contract language is 11(c) of the Agreement between the parties which reads as follows:


The essence of Carrier's response to the claim here is that it has been an established practice when filling temporary vacancies under 11(c) to upgrade only qualified employes in the gang in which the vacancy occurs rather that (in the words of the Carrier) ·...canvassing employees from all over the railroad to work such vacancies...·.
The Organization representing Claimant correctly argues that if past practice is to be successfully asserted by a Carrier as controlling in a given case, the burden falls on Carrier to prove through adequate evidence the existence of the alleged practice. In the processing of this case son the property· Carrier, in the final appeals decision document, asserted for the first time the existence of the practice but offered no evidence with respect to same. Subsequently, Carrier, in its ex parte submission to this Board, offered time slips indicating that on six occasions prior to the claim period here (as well as on numerous occasions subsequent to the claim period) the truck driver temporarily promoted in our case filled the same foreman position without protest from the organization.
                    Locket Number MW-23996


While the practice of filling temporary vacancies only from the gang
 in which the vacancy occurs may make good operating sense and while this practice
 may be widespread on Carrier's property, we must conclude on the basis of the
 slim record before us that Carrier has not met adequately, in this instance,
 its obligation of demonstrating the existence of the practice with a sufficient
 volume of credible evidence. The fact that Carrier's belated assertion of the
 practice was not supported by evidence proffered during processing won the
 property precludes this Board from drawing an inference of organization acquiescence
 to the assertion of the existence of the practice. The evidence of practice in
 Carrier's ex parte brief to the Board has not been submitted to even the slightest
 degree of adversary 'testing· and is, in any event, not necessarily sufficient
 to prove the practice asserted by Carrier. Accordingly, the claim is sustained.
 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; a

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
        That the Agreement was violated.


                        A W A R D


        Claim sustained.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


Attest: -
        Nancy : e dver - Executive Secretary


Dated at Chicago, Illinois this 9th day of November 1984.