Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42853 Docket No. SG-43167 18-3-NRAB-00003-150250

The Third Division consisted of the regular members and in addition Referee Patricia Bittel when award was rendered.

(Brotherhood of Railroad Signalmen

PARTIES TO DISPUTE: (

(BNSF Railway Company (Former Burlington Northern (Railroad Company)

STATEMENT OF CLAIM:

"Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the BNSF Railw ay Company:

Claim on behalf of B. Welsh, for any mention of this matter to be removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 54, w hen it issued the Claimant the harsh and excessive discipline of a Level S (Serious) 30 day record suspension with a 3 year review period, without providing him a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation held on October 7, 2014. Carrier's File No. 35 14 0015. General Chairman's File No. 13 045 BNSF 129 S. BRS File Case No. 15110 BNSF."

FINDINGS:

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

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.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

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

The Carrier determined that on September 24, 2013, the Claimant failed to stay w ithin his authorized limits in violation of Maintenance of Way Operating Rules ("MWOR") 6.3.1 - Main Track Authorization, 10.3.5 Using Track and Time Authority, and 10.3.3 - Joint Track and Time. It issued a Level S 30-day Record Suspension w ith a three year review period. The Organization contested the discipline as improper. The parties to said dispute w ere given due notice of hearing. Failing to resolve the matter, the Organization referred this dispute to the National Railroad Adjustment Board ("NRAB") for arbitration. This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

The Carrier notes that Division Engineer Michael J. Watkins testified during the investigation as follow s:

"Mr. Welsh and the other employee stated that uh, they w ere trying to cover multiple crossings and that, w hen they got there, there w as another road crossing farther to the east that w as activated and just trying to stay up with the gang and do the multiple tasks, they just jumped out there to get the, the other crossing up and not activate it. They just stepped out there, did it, w ithout review ing or uh, really understanding w here their Track and Time started or stopped."

According to the Carrier, the Claimant admitted during investigation that he was outside his limits but attempted to indicate that he w as not aw are of it at the time. The Carrier maintains it has been held numerous times in arbitration that ignorance does not excuse a rules violation or absolve an employee from being held accountable for such violation.

The Organization maintains the Carrier has failed to prove the Claimant w as outside his track authority. Testimony revealed Watkins did not know where the OS began, hence he could not possibly have know n w ith certainty w hether the Claimant w as foul of the track w ithin the OS. According to the Organization, though Watkins could have measured the distance from the joints to the signal, he failed to do so. The Organization references the follow ing testimony: "BRANDON PETTIT: Okay. Could you give me an exact measurement from the signal at West Catale in relation to the insulated joint?

MICHAEL J WATKINS: No.

BRANDON PETTIT: Okay. How far is the signal from the rail there?

MICHAEL J WATKINS: I'd say a minimum of, I don't know that either. I, I can't give you a, a definite distance."

From the Organization's perspective, the Carrier's w itness discredited his ow n testimony; he did not know precisely where the OS section began and therefore had no basis for alleging that the Claimant w as within the OS section w hen he applied his shunt.

A Level S 30 day Record Suspension is a relatively heavy form of discipline and the Carrier is required to provide substantial evidence to support it. The Claimant's testimony indicated he w as confused. His statement to Watkins after the incident w as a confession that he w as unclear about his limits. In the context of his obvious uncertainty, the Board does not find that he clearly confessed to being outside his limits as argued by the Carrier. The Claimant's "confession" w as not adequately definitive to persuade the Board that discipline is w arranted in this case.

Watkins w as the Carrier's main w itness, but he w as unable to conclusively identify the boundaries w ithin w hich Claimant w as w orking. Though at one point he did say that the shunt w as placed in the OS, this testimony was in the context of confusion and conflicting statements. As a result his testimony lacks reliability. The Carrier has failed to produce adequate evidence to bolster its claim.

The claim is sustained in full. The Carrier shall immediately remove the discipline from Claimant's record, w ith seniority, vacation and all other rights unimpaired and make him w hole for all time lost as a result of this incident.

AWARD

Claim sustained

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 10th day of January 2018.