(Brotherhood of Maintenance of Way Fmployes PARTIES TO DISPUTE: (Burlington Northern Inc. (Formerly Northern Pacific ( Railway Company)

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

 (1) The discipline of Track Supervisor A. F, Lechler was improper, without just and sufficient cause and based upon unproven charges (System File MW-20(b) - 2/1/71).

 (2) The personal record of the claimant be cleared of the charges placed against him and reimbursement he made for all wage lose suffered in accordance with Rule 52(g
OPINION OF BOARD: The claimant, a Track Supervisor, was discharged as of Nov
 ember 20, 1970 for "failure to recognize a defective condi
 tion and take proper actions in order to protect the movement of trains."

 The claimant examined the track in question at 11:30 A.M. of November 19, 1970, and although he knew, that the track was generally in a "troublesome" condition, he noticed no change in it from his previous inspection and did not order any slow down of trains or take any other action. Between 11:30 A.M. November 19, and 1:30 A.M. November 20, six trains have passed over that portion of the track without mishap. At 1:30 A.M. November 20, a seventh train while passing over the tracks, was derailed, causing over 200,000 dollars worth of damage.

 Charges were brought against claimant and he was found guilty of failure "to recognize a defecti discharged as of November 20, 1970 by letter, dated December 11, 1970.

 On February 16, 1971 he was; by agreement between the parties, reinstated without loss of seniority. The agreement further provi






The carri-r, ,-~.~rt From its 7c:ner.:.lWsiti:)n on t;ie merits, ;nuves to cl:nmiss t:he claL.a nti tAe ;;round Li:3tthe pocL~.Lon Laken by Claimant on the prupert7 is dLli_·rant iron shat takan by it b;:iore the flo,.rr1, in that, on the pr-ipe:rty,claiciant ner,~Ly contested "the measure of disclplind", whlla before Lh~ board he claims that "the discipline was without just tend sufficient cause _::d based upon unproven char-Ps".

        In Award 17222 (Jones) we said in a similar issue:


        "As has been noted Ln other cases before this Board; we must avoid being ':caper technical' in resolving disputes".


        Citing Award 11214 (Dolnick), we quoted:


        "It is not the purpose of the Railway Labor Act .... to dismiss disputes on mere technicalities. It is rather, the intunt to resolve them on the merits unless it is clear that the essential procedural pr ....."


We feel that the so-called claim of variation in positions is merely a play on semantics. The carrier agreed that the issue of back pay and clearing of the record of claimant be decided by the Coard.

 The letter of C. 0. Morehouse, General Chairman, addressed to Mr. S. A. Anderson on January 7, 1971, advised the carrier that the organization does not agree with the findings of the carrier as to the responsibility of the claimant for the accident. The letter ends with the request for full reinstatement with

 compensation for time lost because of the "improper disciplining". The claim of "improper discipline" is, evidently, based on the claim of lack of "responsibility", and disagree from a mere disagreement on the "measure of damages".

 We find that there is no substantial difference between the presentation of the claim on the property and the presentation to the Board.

        lie shall, therefore,proceed with the merits of the case.


In Award Number 19696, and numerous others, we held that the Board can not substitute its judgment for that of the Carrier in evaluating evidence, where the finding is based on substantial~evidence (underscoring supplied). To sustair this well established maxim, the evidence must be substantial. Where there is lack of evidence, a finding of guilt not only-msy but should be reversed by the Board, regardless of whether it was arbitrary or capricious.

 A study of the transcript herein does not establish any evidence that the claimant was guilty. It shows that lie performed his duty, examined the tracks and found them in the same condition as on previous occasions. lie could not have been expected to foresee that something will happen. Although the passage of or or two trains, without mishap, may not absolve one of his neglect, if there was such, the mere occurrence of an accident does not establish guilt, or neglect, if there was none.

 The mere fact that the Carrier agreed to reinstate the claimant after discharging him shows that it was not so sure of its own belief in his guilt.
                  Award lfusber 198" Page 3

                Docket LLLlber w-19702


        FII.MIMS: The Third ~i·.^ision of the Adjuct^_:~ut Beard, upon the whale record and all the evidence, finds and hclds:


        That the parties r:aived oral hearing.;


That the Carrier and the Ernloycn involved in this dicpute are respectively Carri.cr _nd rploycs within the ecanira of the Poilw:.y Labor Act, as approved June 21, 1934;

 That this Piviaion of the Adjuatnat Board has ,jurisdiction over the dispute involved herein.; and

        Claim is sustained in all respects.


                      A W A R D


        Claim sustained.


                          NATIO1ML FAIL:f~:W I`.IM;iMM^IM BCARD

                          By Order of `fdrd Pivicion


ATr£STt ~·
 Executive Secretary

        Dated at Chicago, IUinois, this 13th day of .tiny 1973.