The Carrier has violated the current Rules Agreement particularly, but not limited to:

On or about early August, 1995, the Carrier knew a vacancy was going to exist on the Commuter Rail Secretaries Position, GC-1, due to the fact that Ms. Toni Bonano was about to undergo carpal tunnel surgery.

Initially the Carrier refused to post the vacant position, and chose instead to hire a "Kelly Girl" (from outside the Industry) on a supposed temporary basis. However, the position still continues to be covered by the temporary agency in violation of our Agreement.

Therefore, claim is made as a penalty for eight (8) hours pay at the punitive rate for each and every day beginning August 17, 1995, and continuing until such time as a satisfactory resolution is reached, on behalf of Ms. Ann Bulmer, who has made written application to perform the duties of the illegally covered position after completing her regular assignment on a daily basis.

Parties to said dispute were given due notice of hearing thereon.

"(d) When a reduction in force occurs which affects employees covered by this Agreement, the remaining work shall be performed by employees covered by this Agreement."

"(a) All new positions and vacant positions known to be of more than thirty (30) days duration will be bulletined on the Wednesday following the date they occur, but not later than the succeeding Wednesday, in the seniority district, for a period of seven (7) calendar days in places accessible to employes affected. Bulletin will show position (indicating if new), location, primary duties, tour of duty, meal period, days of rest, rate of pay, symbol number, if numbered, and whether position is of a permanent or temporary nature."

The Organization maintains that the Carrier did not follow the standard steps in filling the vacancy created by Ms. Bonano's absence. It asserts that the proper procedure is clearly spelled out in the Extra List.

The Carrier denies that it violated the Scope Rule, which in the Agreement between these Parties is general in nature. It contends that the work in question is not reserved exclusively to members of the TCU craft. Further, the Carrier asserts that it did not violate Rule 2-A-1, but fully complied with it. It notes that it advertised the temporary vacancy at least three times without receiving a bid. Finally, the Carrier argues that the Extra Board Agreement could not have been violated, because no Extra Board existed for the offices where the involved position was located.

This is certainly not a case of first impression. It is undisputed that Rule 1 of the Agreement between the Parties is general in nature. Accordingly, noted in Public Law Board No. 2792, Award No. 1:

"As the moving party in this Scope Rule the Organization has the burden of proving 1) the reservation of the work to Clerk-Stenographers by literal and unambiguous contract language, or 2) the mutual intent or implicit understanding of the parties to the Agreement that, notwithstanding contractual silence or ambiguity, the work at issue should be reserved for Clerk-Stenographers covered by the Agreement. The former burden is met by the Organization if it can point to clear, specific and unambiguous contract language. With respect to the latter burden, it has been established by a long line of precedent, which we are not at liberty to ignore, that the Organization must demonstrate by a preponderance of evidence the existence of along-standing, mutually acknowledged and uniform practice of assignment to an performance of

".. . In the typical case, the collective bargaining agreement involved is a system-wide agreement. The instant Agreement is no exception. In such a case, the analysis of the record has a system-wide perspective unless there is evidence that demonstrates the parties intended that a narrower approach be taken. No such evidence exists here.

While the customary, historical and traditional performance of the work is the typical means of analysis, it is by no means the only one. Evidence of the bargaining history, when available, is helpful in resolving questions about Scope coverage. Previous Awards of this Board have recognized unsuccessful attempts to negotiate a rule change as being strong evidence that the existing rules do not provide for the results sought."