(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:

 (1) The Carrier violated the Agreement when, on August 7, 22, 23, 26, 28, September 9, 12, 15, 16, 24, 29, October 1, 3 and 7, 1969, it assigned or otherwise permitted other than track department employes to perform the work of cutting and clearing trees, brush and weeds from its right-of-way at Muncie, Indiana; Hume, Ohio and Bloomington, Illinois.







OPINION OF BOARD: The claim herein arose because the Carrier assigned Communica-
 tion and Signal employes the work of cutting and clearing trees, brush and weeds from its right of way at Muncie, Indiana, Hume, Ohio, and Bloomington, Illinois.

 The Petitioner contends that Maintenance of Way employes have the right to perform the work of cutting and clearing trees and brush on Carrier's right of way. Four prior awards of this Division, involving the same parties and the same agreement, have upheld the contention of the Petitioner in this respect; namely, Awards Nos. 17051, 17059, 17100 and 17199. The Carrier contends that the four awards cited were based on erroneous premises and that Award No. 17003, which denied the claim of the Petitioner should be considered controlling.

 We have reviewed all of the Awards, and we are unable to find Awards Nos. 17051, 17059, 17100 and 17199 to be in palpable error. The prior awards of the Division and the record in the dispute, including the correspondence involving a claim that arose in 1957, is convincing that the work involved was Maintenance of Way work.

                    Docket Number MW-19205


In some of our prior awards we have found it not to be in violation of the Agreement for Signalmen and Communication employes to cut brush and trim trees that may be interfering with signal and communication wires. However, there is no proof in the record in our present dispute that Carrier's signal and communication equipment became inoperative because of brush interfering with such lines. Moreover, it is doubtful that the amount of time involved in the claim would have been consumed by Signal or Communication employes simply eliminating interference.<
        The Agreement was violated and the claim will be sustained.


FINDINGS: The Third Division of the Adjustment Board, after giving the parties
 to this dispute due notice of hearing thereon, and upon the whole
 record and all the evidence, finds and holds:

 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;

 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: Executive Secretary


        Dated at Chicago, Illinois, this 30th day of October 1972.

                            CARRIER IBS' DISSENT TO AWARD N0. 19457

                            DOCKET No. tsr-19205


              The Awards cited by the majority as not in palpable error are not analogous to the situation in the instant case. As pointed out to the Neutral in these prior Awards, the weed and brush cutting was performed by outside coa-

l tractors and was a general clean-up operation, the result of some deferred main-
              tenance. It was not, as in this case, the removal of brush and other growth that

              interfered with signals, wire lines and other related equipment serviced and

              maintained by signal and communication department employes.


              The Neutral's attention was also called to previous Awards in which he participated wherein claim by the Signalmen for punitive pay when required to cut trees and brush growing up through the signal line wires was denied.


                In this case in the handling on the property the employes did not deny that the work was in connection with the cleaning of communications and signal lines.


              The employes did not meet their burden of proof while the Carrier, on the other hand, showed by sufficient probative evidence that such work had not been historically and traditionally performed by them to the exclusion of others. We dissent.


                                        R. F. M. Bra 00

                                        P. C. Carter


                                          .B. Jones


                                        0. L. Iiaylor