(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (The Kansas City Southern Railway Company

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

 (1) The five (5) days of suspension imposed upon Section Foreman H. L. Swinney for allegedly 'having left track unsafe on February 13, 1980' was without dust and sufficient cause and on the basis of unproven charges (Carrier's File 013·31-

 (2) The claimant's record shall be cleared of the charges leveled against him and he shall be compensated for all wage loss suffered including all overtime worked by Section Gang 055 from May 26 through May 30, 1980, both dates inclusive."

 OPINION OF BOARD: Claimant herein, a foreman, was found guilty of leaving
 track in an unsafe condition on February 13, 1980 and
 was assessed a five day suspension, following an investigation. Carrier
 avers that the evidence indicated Claimant's responsibility for the unsafe
 condition and that the discipline was fully warranted. Petitioner denies
 that there was any significant evidence to establish Claimant's guilt and
 prays that the Claim be sustained.

 careful study of the transcript of the investigation leaves the Board with as impression of confusion on the part of the Carrier with respect to the facts There apparently were two gangs working on the track in question ~.
 on February 3th; further Claimant and his crew were called off work on the;
 particular piece of track after about an hour's work and were assigned to
 another track. Although there is no doubt that the loose bolts and an unsafe
 condition existed, the evidence does not indicate who was responsible for the
 condition is the first instance. The Roadmaster, Claimant.'s supervisor, testi
 fied that Claimant had performed work on the switch in question:

Claimant, and both members of his crew for the day in dispute, testified that no bolts were loosened while they worked on the track. No evidence was presented with respect to the his gang stated that they had merely cleaned out the dirt around the switch in initial preparation for changing the track when they were reassigned. There was further confused testimony with respect to a subsequent inspection of the particular track.
 Award Number 24039
 Docket Number MW-24118

 Page 2

 The Board is constrained to conclude that there was no clear or convincing evidence adduced at the investigation to establish Claimant's culpability for the incident.. Hence, Carrier has not borne its burden of proof which is the fundamental requirement in disciplinary situations. The Claim must be sustained.

That the parties waived oral hearing;

 That the Carrier and the Employee involved is this dispute are respectively Carrier and Employee 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 Aaesseat was violated.
A W A R D
Claim sustained.

 ATTEST: Acting Executive Secretary

By
 T osemarie Brasch - Administrative Assistant

 r

 Dated at Chicago, Illinois, this 29th day of November 1982.

 NATIONAL RAILROAD ADJUSTMT BOARD
 By Order of Third Division