(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Consolidated Rail Corporation

(1) The disciplinary disqualification of Mr. J. L. Craig as track foreman and the twelve (12) working days of suspension imposed upon him for alleged 'failure to comply with MW-4, Part 1, Sections 213.5(al) and 213.6(a) causing derailment of Train BUOI-5, head Engine 3327, on the Corning Secondary at Beaver Dams, New York, Wednesday, June 15, 1983' was without just and sufficient cause and on the
(2) Mr. J. L. Craig's seniority as track foreman shall be restored and unimpaired, his record cleared of the charges leveled against him and he shall be compensated for all wage loss suffered."

 OPINION OF BOARD: Claimant, with a seniority date of May 1, 1952, (and Track
 Foreman's seniority of April 13, 1968) was a Section Foreman at the time of the incident involve at about 7:30 A.M. Claimant was sent to MP 55.8 to line a joint that had kicked out. The work consis track and replacing ballast. The entire job took about forty-five minutes. Subsequently a northbound freight passed over the track which had been repaired. Later in the day a and after about eighty-three cars passed over the spot a derailment occurred.

 As a result of the accident, on June 16, 1983, Claimant was charged as follows:

Following a Hearing, held on June 30, 1983, Claimant was found to be guilty of the charges and was assessed a twelve day suspension and was disqualified as a Foreman.

 Carrier maintains that the derailment which occurred made it quite obvious that Claimant did not properly perform his duties. Carrier points out that Claimant's testimony verified the facts that he did not place a slow order on the track either


the track out of service. His testimony that he did not believe these actions were necessary establishes that his judgment was at best erroneous, according to Carrier. Furthermore, Carrier argues that Claimant did not check the gauge in the area and made no determination as to why the track had kicked out at the particular spot. Carrier concludes that Claimant was derelict in his duties and was guilty of th be allowed to stand.

 The Organization argues that Carrier has failed to prove that Claimant's actions were the direct notes that the track in question was a 30 MPH secondary track but the tapes indicated that the train which was derailed was traveling at 32 MPH at the time of the derailment. Further, it is maintained that Claimant's responsibility was to repair the t not comply for 30 MPH service. Claimant did all that was required of him.

 The Board notes, initially, that the Claimant's Supervisor, as well as the Supervisor of Track Inspection were aware of the problems with the particular segment of trac the testimony at the investigation that the train crew of the train which was derailed observed no irregularities while travelling over the rails (some 80 cars passed the point prior to the derailment). It is also apparent that Carrier attributed the derailment to a sun kink.

 A careful evaluation of the testimony presented at the Investigation indicates no evidence whatever to establish Claimant's guilt of the charges. The two facts, the repair activity and the derailment, do not per se indicate Claimant's culpability. The Board concludes that Carrier has not borne its burden of proof in this case.

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


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes 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 Agreement was violated.

                      Award Number 26491 Page 3

                      Docket Number MW-26142

                      A W A R D


        Claim sustained.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


Attest: ',
      Nancy J. )13_ve~/- Executive Secretary


Dated at Chicago, Illinois this 9th day of September 1987.