PUBLIC LAW BOARD No. 1210 _ AWARA No. 3 .

PARTIES TO DISPUTE: Baltimore & Ohio Railroad Company
and
Brotherhood of Maintenance of I-lay Employees
STATMEBT OF CLAIM: 1. Carrier violated the effective Agreement when,
on June 24, 25, 26 and July 1, 1969, it assigned two
Signalmen on each of these dates and the Signal Gang
Foreman on June 26 to the cutting of brush beneath the
wires from Pataskala, Ohio between Poles 119-10 and
113-12. .
2. Carrier shall now compensate Track Foreman J. A.
Ruff and Trackmen J. 0. Hickman and M. A. Willey in the
amount of 72 hours, equally divided, at their respective
rates of pay account of this violation of the Agreement.
OPINION OF BOARD: There is no dispute concerning the basic facts in this
case. S11hile conducting an Insulation Resistance Test,
I. C. C. Test 136.108, the Signal Inspector found that
some of the signal control circuits failed to meet the
minimum test requirement due to brush fouling the lines
in the area covered by the claim. Signalmen were assigned
to cut brush from the lines so that the minimum test could
be met.
In denying the claim the Carrier relied, in part, upon
the allegation that the Scope Rule of the Agreement was
general in nature and did not reserve such work as involved
herein exclusively to Maintenance of Way forces and cited

1

PL Board No. 1210 (2) AYIARD No. 3 .'.

V

several prior Awards in support of this position. In essence, these Awards reiterated the principle that, in the face of a general type Scope Rule, the burden of proof rests with the Petitioner to show that questioned work belonged to him by custom and past practice. However, in the instant claim we note from a Carrier letter dated October 21, 1969 the following statement:

"Ve have carefully investilgated this case and we find that the Signal employees did not do general cutting of brush or mousing of right of way orhich is customarily nerfor^i..d by '.·=aintenance of Wa

r employees." emphasisnadded

. The question at bar is whether the work performed was

of a general nature or, rather, performed as an emergency.

Petitioner concedes that if the questioned work had been

f

in the category of an emergency then "such work performance could reasonably be said to be 'incidental' to their -(Signal employees) - assigned duties in maintaining or inspecting their pole line of wires." The Carrier, in its opening statement of its submission, stated:

"Periodically Carrier's Signal Department inspects line wires to insure that signal circuits ... are operating properly. Such tests are required by the Signal Inspection Act of 1937." It is obvious that such tests are necessary to assure a safe

' operation and are not discretionary on the part of Carriers.

` In the performance of such tests, on the dates in question, the record shows that, over the territory in question, the

FL Board No. 1210 (3) · . , - AWARD No. 3 -· .
. · signal control circuits failed to meet the minimum test
requirements and "that failure of the test indicates that
· signal circuits carried on the line are partially shorted to
ground or other circuits which could result in interference
with the signal system." The work performed by the Signalmen
was to correct the situation so that the minimum test could
' be met.
We are persuaded, based upon a careful review of the record
before us, that the work performed in this particular case
was not of the category of "general cutting of brush or
mooring of right of way" but was, in fact, of an emergency
nature requiring prompt corrective measures. The general
cutting of brush and mo:aing of the right of way was, in
fact, performed by Maintenance of Way Employees, under these
same wires, at a later date.
In Award 19418 of the Third Division, NRAB, it was stated, in
part:

" .... the method of determining to which class such work belongs is by examination of the reason for the performance of the work.

"The Board finds that the instant record .·. lacks the probative evidence necessary to prove that the work here involved, on this property, was not performed at the behest of and for the benefit of the Telephone and Signal Departments." The foregoing award covers a case in point. For the reasons ` stated herein we will deny the claim.

AWARD: Claim denied.

o - `d

PL:Board No. 1210 _ (4 ) - AWARD No. 3 ,

C. Robert Road ey, Neutral i.Iember

A. J. Unningha:°oloyee i·Iember L. W. Burks, Carrier Member

Baltimore, Maryland March 11, 1974