(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

(The Chesapeake and Ohio Railway Company

(Northern Region)


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

 (1) The Carrier violated the Agreement when it used a Transportation Department employe instead flag protection for the safe passage of trains at Mile Post 86.4 December 21, 1983 through December 30, 1983, both dates inclusive (System File C-TC-2119/MG-4448).

 (2) Furloughed Trackman R. Brooks shall be allowed thirty-three (33) hours and ten (10) minutes of pay at his appropriate rate because of the violation referred to in Part (1) hereof."

 OPINION OF BOARD: The instant Claim alleges Carrier violation of the Scope
 Rule wherein it assigned flag work to Transportation employes when such work belonged exclusively to Maintenance of Way employes. Due to the construction of an advertisement sign along the Carrier's main line at MP 86.4, the Carrier assigned the work of flagging to Transportation employes on December 21, ?2, 29 and 30, 1983. These employes performed flag work to assure that tracks were clear for the safe passage of trains through the construction area.

 The Organization maintains that said work "comes exclusively under the scope of the Maintenance of Way Agreement." In support of its position it submits the Agreement and a past Award of Public Law Board No. 1204.

 The Carrier denies both the allegation and the substance of the Award cited by the Organization. It is the Carrier's position that flagging is not work which belongs exclusively to Maintenance of Way employes. It notes that within the switching limits of a terminal, Yard "Conductors have performed flagging work and that two Public Law Boards have already ruled that "flagging does not accrue exclusively to Maintenance of Way Employes" (PLB 1210, Award No. 1 and PLB 2630, Award No. 13).

 This Board has carefully viewed the evidence as presented on property and finds nothing in the Agreement of clear and unambiguous language assigning such work as herein disputed exclusively to the Maintenance of Way employes. The Rule disputed refers to "patrolling and watching track where bridges or structures are not involved." A review of the probative evidence presented by the Organization does not establish exclusivity. Patrolling and watching does not contain contractual language explicitly defined or encompassing the protection of No. 13:
                        Docket Number MW-26280


            "So far as the record shows, the trainmen were used not to flag traffic over a crossing, but to protect train movements. There is no evidence that by rule or practice the protection of train movements on this property is reserved exclusively for Maintenance of Way watchmen. In the absence of such a showing, it would appear that it was not improper to call upon trainmen to perform that work."


Although the circumstances herein differ, the logic of the above Award holds. As such, this Board denies the Claim as the contractual language does not evidence exclusivity. Absent probative evidence to establish that such work has historically been exclusively performed by members of that craft by custom, practice or traditio
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 not violated.


                        A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest:
        Nancy ever - Executive Secretary


Dated at Chicago, Illinois, this 20th day of March 1987.