"Claim on behalf ofthe GeneraIICommittee of the Brotherhood ofRailroad Signalmen on the CSX Transportation Co. (former Louisville & Nashville Railroad):

Claim on behalf of G. E. Fluhr,!D. B. Puckett, J. W. Lee, T. G. Mattingly, T. M. Nalley, R. C. Meador, M. E. Bagwell, D. J. Witherspoon, R. D. Lightfoot, and W. T. Sorg for payment of 480 hours at the time and one-half rate to be divided equally among the Claimants, account Carrier violated the current Signalmenhs Agreement, particularly the Scope Rule and Rules 31 and 32, when it used outside forces to remove trees and brush from the signal pole line Mile Post 99.6 to Mile Post 136.1, through March 31, 1998, continuing for the (term of the violation, and deprived the Claimants of the opportunity to perform this work. Carrier's File No. 15(98-205). General Chairman's File No. 98-13-07. BRS File Case No. 10890-L&N."

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

Parties to said dispute were given due notice of hearing thereon.

As Third Party in Interest, the Brotherhood of Maintenance of Way Employes was advised of the pendency of this dispute and chose to file a Submission with the Board.

The general principles governing resolution of the brush cutting disputes currently under consideration by the Board are set forth in detail in Third Division Award 35229. In sum, (1) the Organization filing the claim has the burden to demonstrate a violation of the Agreement; (2) brush cutting in general along the Carrier's right-of-way is BMWE scope covered work; (3) the cutting of brush that interferes with signal or communications lines and related equipment is BRS scope covered work; (4) the cutting of brush under the pole line that does not interfere with signal or communications lines and related equipment falls under BMWE Scope Rules; (5) where outside forces are used, the relevant contract provisions governing the use of such forces will be applied and assertions of the need to show exclusive performance of the work will not defeat an Organization's claim; (6) with respect to asserted emergencies, the Carrier has the burden to demonstrate the existence of an emergency, which requires it to show the existence of an unforeseen combination of circumstances that calls for immediate action, but where ordinary track maintenance could have prevented the situation, no emergency exists; (7) where Agreement violations have been demonstrated, adversely affected employees will be made whole at the appropriate contract rate on the basis of lost work opportunities and irrespective of whether the employees were working on the dates of the demonstrated violations; and (8) where violations have been demonstrated, the disputes will be remanded to the parties for determination of the number of hours attributable to the improperly assigned work taking into account the specific type of work involved, with the Board retaining jurisdiction to resolve disputes over remedies.

According to the Organization, this is a follow up to the incidents raised (and decided) in Third Division Award 35545. Here, the Organization added dates through March 31, 1998 with a total of an additional 480 hours of claimed work performed by the contractor for work cutting by hand as per FRA cited violations from mile marker 99.6 to 136.1.

01-3-99-3-265