"Claim of the System Committee of the Brotherhood that:

(1) The discipline [Level S thirty (30) day record suspension and a one (1) year probation period commencing on October 6, 2010] imposed upon Mr. A. Koss by letter dated October 6, 2010 for alleged violation of MOWSR S-1.2.3, MOWWSR S-12.9.1 and MOWSR S-16.24 for alleged failure to be alert and attentive when parking BNSF Vehicle #21225 which was subsequently damaged when it was backed into by an excavator on August 25, 2010 at/or near Mile Post 345.6 on the Sandhills Subdivision while assigned as a foreman on Gang TMGX 1338 temporarily headquartered at Alliance, Nebraska was arbitrary, capricious, on the basis of unproven charges and in violation of the Agreement (System File C-10-D040-41110-10-0571 BNR).

(2) As a consequence of the violation referred to in Part (1) above, Claimant A. Koss shall now receive the remedy prescribed by the parties in Rule 40(G)."

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

Form 1

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21,1934.

Parties to said dispute were given due notice of hearing thereon.

The Organization asserts that the Claimant was denied a fair and impartial Investigation. The Organization further asserted that the Carrier failed to prove the charges levied against the Claimant.

It is evident that the Carrier did not comply with Rule 40's requirements and in so doing prejudiced the Claimant's right to a fair and impartial Hearing.