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

(1) The ten (10) days of suspension imposed upon Track Inspector/Foreman J. Price for alleged 'F action' for alleged defects at MP 26.9 and MP 35.7 on February 6, 1984 was without just and sufficient cause and on the basis of unproven charges (System Docket CR-732-D).

 (2) The claimant's record shall be cleared of all charges leveled against him and he shall be compensated for all wage loss suffered."

 OPINION OF BOARD: Claimant was a Track Inspector Foreman with 35 years of
 service. His duties included a weekly inspection of the
 Cape May Secondary track. On February 6, 1984, Claimant performed his normal
 duties including the inspection of the Cape May Secondary track and submitted
 the required inspection reports. On February 14, 1984 four Carrier officials
 highrailed the Cape May Secondary track and found two serious track defects
 necessitating taking the tracks in question out of service and making repairs.
 Subsequently by notice dated March 15, 1984, following a Investigation, Claim
 ant was found guilty of the following charges and was given a fifteen day
 actual suspensions:



Carrier argues that the serious track conditions observed by the Carrier officials had not been


inspecting track, reporting defects and ensuring that the defects are repaired, it is evident th took place at all, according to Carrier. It is argued further that according to the Carrier officials making the inspection, the defects clearly must have been present some eight days previously. It is concluded that not only was Claimant properly found guilty of the charges, but that the discipline accorded him was lenient unde
The Organization maintains that Carrier has not borne its burden of proof in this matter. It is argued that there is no probative evidence to show that the defects in question were present on February 6, 1984, the date of Claimant's last inspection. In addition, there was testimony by Claimant, who had an unblemished record of 35 years service prior to this incident, that there were poor conditions in the area to start with and with the early thaw and excessive rain in the first part of February many changes could have occurred within a few days part by two Carrier witnesses. It is concluded that the testimony adduced at the Hearing did not justify any discipline whatever.

 The Board, after careful analysis of the testimony at the Investigation, believes that there is conclusion with regard to Claimant's guilt. Even if Claimant's testimony is totally disregarded, which should not have happened, the Carrier officials who made the inspection some eight days after Claimant's normal inspection, could only speculate as to the existence of the defects on the earlier date. That judgement, which was later, under cross examination, partially qualified, was insufficient to support the charges. There were no facts whatever to support the conclusions reached. In fact, the two key Carrier witnesses agreed that Claimant's version of what probably happened was plausible. The Board concludes that Carrier did not guilt with significant substantial evidence; in short Carrier failed to bear its burden of proof (see Third Division Awards 19853 and 24039). The Claim must be sustained.

        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 26686 Page 3

                      Docket Number MW-26478

                      A WAR D


        Claim sustained.


                              NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


Attest: Cs
        ancy J. /P150 Executive Secretary


Dated at Chicago, Illinois this 23rd day of November 1987.