BROTHERHOOD OF MAINTENANCE ()F WAY
 EMPLOYES DIVISION - IBT RAIL CONFERENCE

 Vs

 BNSF RAILWAY COMPANY



STATEMENT OF CLAIM:






INDINL,St

 Public I,,aw Board No. '1048, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, amended; and:, that the lard has jurisdiction over the dispute herein; and that the parties to the dispute have participated in :ice to the Agreement that established the hoard.

 The facts indicate that can Deceber l7, 2008, Signal Maintainer r. Burns was hy-railing his vehicle across the territory and at least Fox he derailed his vehicle while traversing over a switch. There is no dispute that Claimant had earlier in the clay taken the same switch into hand from the motor position and lined himself into the siding. Carrier Officers investigated; the incident and subsequently determined that the Claimant might have some culpability.
 P.L.13. No. 70
 .ward No. 52, Case No. 52
 Page 2

 On December 1 . 2008, Claimant was directed to attend a formal Investigation on December 29, 2008, which was mutually postponed until January ta, `?009, concerning in pertinent part the following charge:






On Jane 16, 2009, Claimant was notified that he had been found guilty as charged and kvas issued a Level S record suspension of 30 days and assigned a probation period of three years.

 It is the Organization's position that the Carrier erred in its discipline as it did not meet its burden of proof. It argued that the record indicates the Claimant had taken the switch into "hand" from the motor position and lined himself into the siding after which he placed the switch back into its normal position in motor and subsequently the switch went cut of synchronize, an its yawn. Simply stated it asserted that the switch malfunctioned due try no fault of the Claimant. It concluded by requesting that the discipline be rescinded and the claim he sustained as

 of the " 'er that substantial evidence was produced that Claimant

 violated the aforementioned Rules and he admitted during the Hearing he operated the switch and it was in the reverse position, causing the derailment. It closed by asking that the discipline not be dis~turld.

 The Hoard as thoroughly reviewed the transcript and record of evidence and determined that the Investigation was held in compliance with Rule I 3(a) the Discipline Rule and Appendix No. I I, therefore, the claim will 1e resolved on its merits.

 The Organization made a forceful argument in behalf of the Claimant that the switch in dispute may have been improperly lined by the Dispatcher or it may have malfunctioned. I-Iowever, neither argument is persuasive. Eon page IO of the Transcript the Hearing Officer questioned the Supervisor of Signals 13 Owstey as follows:




                                  Page 3


      or at the tune the incident happened.


<)n page 25 of the Transcript the Hearing Officer continued to question Supervisor C?wsley about the possibility that the switch may have malfunctioned on its own as follows:

      "Russell Sweet: ..., with the Dispatcher never throwing the switch, what's the probability of the switch going just out of correspondence on its own


      Dan ()wsley; Urn, I'd say impossible after, especially a property operating switch that t tested it to verify that it vas a properly operating switch. (Underling Board's e mphasis)


Review of the testimony indicates that Supervisor of Signals C). Owsley's statements that the Dispatcher did not line the switch its reverse, and that the subject switch operated properly were not refuted. No rebuttal of those statements and/or plausible alternate theory leads to the inescapable conclusion that the Claimant was the last person who operated the properly functioning switch. On pages 3? and 38 of the Transcript the Claimant stated that the Maintainer G. Burns told him the switch was in the reverse position causing the derailment. He further fitted on page 7 that the person in charge was Maintainer Bunts and that he should have advised him when any switch was moved, but he did not do such in this instance.

      The record further substantiates that the Claimant fitted on page 39 of the Transcript

that he heard the Dispatcher and the Maintainer on the radio state the switch was cut of
 correspondence and he was the only person that had moved the switch. Rule 8.3 states in
 pertinent part: "Do not open main track hand-operated switches, except ax instructed y
 employees in charge." The evidence is clear the Claimant eras not the employee in charge and
 he did not seek authorization tax do such in violation of the Rule. Rule 8.2 states in part the
 following: "When the position of a derail or main track switch is changed by hand
 operation, the employee in charge must record the location of the derail and/or main track
 switch used and the tune the derail is secured in derailing position and/or the main track
 switch is returned to the normal position." Additionally, Rule 8.3 states in part: "/..one
 workers who operate a main track switches must observe the position of the switch and
 ensure that the switch is line anti secured in the normal position before leaving the area."
 There is ample testimony and evidence which indicates that the Claimant did not observe the
 switch in the reverse position and the derailment was caused by the switch being in the reverse
 position arid he was the only person to orate that switch can the elate oaf the incident prior to the
 derailment. Substantial evidence was adduced at the Investigation that the Carrier met its burden
 of proof that Claimant was guilty charged.
 P.L.B. No. 70413
 Award No. 52, Case No. SZ
 Page 4

 The only issue remaining is whether the discipline was appropriate. At the time of the dispute the Claimant had approximately 32 plus years of service with sane prior discipline and a clear record over the last eight yew. However, the discipline assessed slid not result in any acmal time off and was in accordance with the Carrier's Policy far Employee Performance Accountability (PEPA), therefore, the Board finds and holds it will not be rescinded because it was not arbitrary, excessive ear capricious.

 Claim denied.

 Samantha. Rogers, Car~ Member

 AWARD
Z'...~ .~°
William R. Miller, Chairman & Neutral Member

 ,'ward Date:

 David D. Tanner, Employee Member