Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 27012
 THIRD DIVISION Docket No. MW-26579
 88-3-85-3-321
 The Third Division consisted of the regular members and in
 addition Referee Herbert L. Marx, Jr. when award was rendered.

 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The Agreement was violated when outside forces were used to cut brush on the Carrier's right-of-way between West Allens and East Allens, Pennsylvania on January 26 and 27, 1984 (System Docket CR-889).

 (2) The Agreement was further violated when the Carrier did not give the General Chairman prior written notification of its plan to assign said work to outside forces.

 (3) Because of the aforesaid violations, Mr. S. L. Ransdorf shall be allowed sixteen (16) hours of pay at this straight time rate."

 FINDINGS:
The Third Division of the Adjustment Board upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

As Third Party in Interest, the Brotherhood of Railroad Signalmen was advised of the pendency of this dispute but chose not to file a submission with the Division.

 The Carrier contracted with an outside firm to cut brush and trim trees along the pole line of the right-of-way between West Allens and East Allens, Pennsylvania. No notice of the intent to have this work performed by outside forces was given to the Organization's General Chairman.
Form 1 Award No. 27012
 Page 2 Docket No. MW-26579
 88-3-85-3-321



There is no question that, under these provisions, the Carrier is required to notify the General Chairman when it "plans to contract out work within the scope" of the applicable Agreement. The Carrier argues, however, that the proposed work (brush cutting) is _not within the scope of the Agreement and thus no notific no showing that the Organization has exclusive rights to such work, either through specific Agreement language or otherwise, and that there is at least some question as to whether the work may be more appropriately within the work assigned to employees represented by a different Organization.

 The Organization demonstrates, however, that such work had been assigned to employees it represents and that seniority rules as well as proposed job assignments mak required therefor.

 The Board finds that the Carrier's insistence on an exclusivity test is not well founded. Such may be the critical point in other disputes, such as determining which class or craft of the Carrier's employees may be entitled to perform certain work. Here, however, a different test is applied. The Carrier is obliged to make notification where work to be contracted out is "within the scope" of the Organization's Agreement. There is no serious contention that brush cuttin Way employes, even if not at all locations or to the exclusion of other employees. As emphasized by the Organization, the Carrier failed to make any notification to any Organization.
 Form 1 Award No. 27012
 Page 3 Docket No. MW-26579
 88-3-85-3-321

 The Scope Rule quoted above recognizes the right of the Carrier to contract out work, but at the same time it places the Carrier under the special obligation of pre-notification and, if requested, discussion and an "attempt to reach an understanding" with the Organization. Whether or not the work here involved would have eventually been contracted out, assigned to another craft or class, or assigned to Maintenance of Way employees is not the principal point and indeed need not be resolved here. What the Board does find, however, is a failure by the Carrier to initiate the notification procedure.

 The Claimant herein is an employee on furlough contending his availability to perform the work. inappropriate, even if violation is found of the provisions of the Scope Rule. The Board does not agree. What would have been the outcome had the Carrier complied with the notification procedure cannot be predicted or retroactively determined by the Board. One consequence, however, is that discussion and attempts at reaching an understanding may have resulted in assignment of work to a Maintenance of Way employee. On this basis, the Board finds the remedy sought in the claim to be proper.

 Thus, the Board will sustain the claim as stated in Paragraphs (2) and (3) of the claim. With this, it is unnecessary to rule on the contention in Paragraph (1) of the claim.




                          By Order of Third Division


Attest..
 Nancy J er - Executive Secretary

 Dated at Chicago, Illinois, this 25th day of April 1988.

CARRIER MEMBERS' DISSENT

TO

?,WARD NOS. 27012, 2-014; DOCKET NOS. MW-26579, .."-I'A-26642

(Referee Marx)


      The Maori=_ as committed two grievous errors in the

handling of these cases.

First, they ha·.·e :=pletely overlooked or failed to give any credence to the dec;sion rendered by the Third Division in Award 26676 which involved t'^.e same parties, the same agreement and the same dispute, i.e., orush cutting under a signal system. In Award 26676, the '1a]ority correctly denied the Organization's


claim, stating:
 "The Organization has produced no evidence
 appearing in the record of this dispute which supports
 its contentions that the work in question is the type
 of work reserved to Maintenance of Way Employes, either
 by practice or agreement language."
 In Awards 27012 and 27014, while recognizing that the
 dispute involved pole line brush cutting and invitingthe
 Brotherhood of Railroad Signalmen as a Third Party, the Majority
 nevertheless somehow decided that the agreement was violated when
 the Organization was not given advance notice of the contracting
 although not finding a violation of the agreement because a
 contractor was used. An extension of this convoluted decision
 would require an advance notice to the Organization even when
 Signalmen are used to cut brush under pole lines, an item of work
 clearly spelled out in that Agreement.

Certainly, the proper and logical path to follow was that already set by Award 26676. Having gone astray, the Majority has merely muddied the waters by these awards.

Dissent to Award Nos. 27012, 27014 ?age 2

 Secondly, and more _nportantly, the Majorit;, has decided

 notice is required scope of the Agreemen-

 have participated in.

 decision ignores the

 The

 work involved is not within the

 cecause the represented employees

 Cutting in the past. However, the

 hat brush cutting is not mentioned

 the Scope Rule. oa7ority further overlooks the fact

 brush cutting has bee.^. performed historically by other craft by contractors, throughout the pr without any protest.

      For these reasons, it is necessary that we dissent.


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