f


The Carrier does not deny Petitioner's statements that the electric signal circuit was not opened. The Carrier states, however, that "Although it is possible that the angle bars could maintain the circuit, the signal system was Also, the Carrier states, "The circuit was being maintained only by the angle bars and not by the bond wire." (R32). We must conclude from our review of the record that the electric signal circuit was not opened. We must also conclude that the track and the signal system were not at the time is a "normal serviceable condition" when in replacing the rail, the track forces removed the angle bars and knocked the bond wire from the opposite end of the broken rail. The record shows that Claimant Maintainer Boweer, whose headquarters is at Meyersdale, was notified of the broken rail at 7:30 A.M. and that he and his Assistant proceeded to Garret, and bonded the replacement rail at 8:05 A.M.

 The Scope Rule of the Agreement embraces, in paragraph (j), "Bonding of all track." This Agreement rule, between the same Brotherhood of Railroad Signalmen and Western Maryland Railway Company, was interpreted and applied in Award Number 17359, made on the Claim that the same Claimant (Maintainer Bowser) was sent home and "track forces were allowed to break bonds" in the process of reconstruction of track. This Board (Referee David H. Brown) issued a brief opinion denying the claim, stating:

In Award 12329, on the basis of which Award Number 17359 was determined, Referee Dolnick states:





Referee Dolnick, in Award 12329, points out therein that "Signalmen were present and did open the circuit and took the signal circuits out of service before track men broke the rails. The breaking of the bonds by the track men It was a salvaging operation."

 Award No. 17359, accordingly, rendered between the same parties hereto on the same agreement pro on facts and circumstances of "a salvage operation" wherein signalmen were not denied their agreement rights to take the signal circuits out of service since the signal system was inoperative due to the rails having been torn from the tracks in the derailment there involved. In the instant case, however, the track forces were dealing with an electric signal circuit which was n track bond by the track forces. This was not "a salvage operation" in the meaning of Award 12329 and the controlling Award No. 17359 even though replacement of track was involved.

 Award No. 17359, based upon Award 12329, which in turn is based upon earlier, reasoned awards, uses a simple test as to whether a scope rule violation exists when there is a breaking of the track bonds by track forces. The test is whether the breaking of the track bond "had the effect of opening the circuit". The test is not whether the signal system is in a "normal serviceable condition" or whether the track required replacement. If the brea case, "had the effect of opening the circuit," we are required by the precedential force of Award No. 17359 to conclude that there was a violation of the Agreement. It is to escape the bite of the doctrine of stare decisis.



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






        Claim sustained.


                        NATIONAL RAILROAD ADJUSTMENT BOAR

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 22nd day of November 1974.