(Brotherhood of Maintenance of Way Employee PARTIES TO DISPUTE:

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

 (1) The Carrier violated the Agreement when, without a conference having been held between the Assistant Vice President, Engineering and Maintenance of Way and the Ge out the work of disposing of old cross tie butts between Mile Post A-83 and Mile Post A-86; and between Mile Post A-120 and Mile Post A-135 1System File 12-2 (73-2)./.

 (2) Foremen E. G. Williams, Jr., L. J. Hedgepeth, D. I. Denton; Apprentice Foremen A. C. Nelms, T. G. Williams; Machine Operators W. Williams, R. L. London; Crankhand C. Frazier; Trackmen K. York, W. Robinson, E. J. Price, W. Green, B. A. Wactor, L. Hinton, A. Small, S. C. Mooring, J. L. Banks, W. Glover, J. D. Turner and E. Wilson each be allowed pay at their respective straight time rate for an equal proportionate share of the total number of man hours consumed in performing the work referred to in Part (1) hereof.

 OPINION OF BOARD: When Carrier contracted for disposal of certain old
 cross tie butts, Claimants alleged a violation of Rule 2. That rule provides that maintenance and construction work under the Agreement may be performed by individuals other than employees subject to the Agreement, only if the Assistant Vice President, Engineering and Maintenance of Way and the Gene conditions.

 The Organization urges that the work of disposing of old ties is maintenance work which its employees have performed by history and custom; and Carrier violated the Agreement when it failed to confer with (and reach understanding with) the General Chairman.

 The Carrier is careful to draw certain distinctions in this dieputs. Carrier concedes that the e of cross ties and tie pieces within the limits of the railroad's right of way. But, Carrier insists that its action complained of herein was merely a removal of solid waste, and that it has customarily and historically disposed of such waste in any


Awards cited by the organization have sustained claims concerning labor performed on the right of way - having found that the work in question in those cases was cove thereunder. But here, the Carrier's distinction appears to be well taken. The applicable rule speaks in terms of "maintenance" and "construction." Without regard for the argument concerning the "exclusivity" doctrine, in order to sustain this claim, we would require a stronger showing than presented by this record that the employees have, by history and custom, performed the work of waste disposal. For example, concerning the question of giving away old ties, Claimants argue that Carrier has not demonstrated that the employees did not pile or group the ties for disposal in the prior instances. That may be so, but there is no showing that this claim is limited to that type of work performance. To be sure, there were two (2) instances when a Carrier Official conferred with the Organization regarding this type of work. Rut the record, as a whole, suggests that those instances were isolated, and not indicative of customary practice.

 We certainly do not dismiss, out of hand, or minimize the Organization's contentions in this case. T perservation. We do feel, however, that in order to activate the rule, a showing must be made that the work is of a nature contemplated by the rule. While the type of work here in dispute may fall within that category, we are not disposed to conclude that the Organization made such a showing while the matter was under consideration on the property. Thus, we will dismiss the claim for failur




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





NATIONAL RAILROAD ADJUSTMENT BOARD
 ATTEST: A &ll4&e By Order of Third Division

Dated at Chicago, Illinois, this 24th day of October 1975.