BROTHERHOOD OF MAINTENANCE OF WAY
 EMPLOYES DIVISION - IBT RAIL CONFERENCE
vs

 RNSF RAILWAY COMPANY




STATEMENT OF CLAIM:











FINDINCS:
Public I.aw Board No. 7048, upon the whole record and all the evidence, finds and holds that E3mployee and Carrier arc employee and carrier within the meaning ol` the Railway Isabor f\ct. as amended; anal that the Board has jurisdiction over the dispute herein; and that the parties to the dispute have participated in accordance to the Agreement that established the Board.

 On June 2, 2010, Claimant was directed to attend a formal Investigation on June 9, 2010, which vas mutually postponed until July 12> 2010, concerning in pertinent part the follow=ing charge:


                                  Page 2


      2(110 at 1729 hours on Main`rrack 2, between the L«maz and Stronghurst stations, you allegedly released the wrong authority, Track and Time #22-64, allegedly leaving; yourself unprotected on Main Track 2 activating an exceeds alarm on the HLCS."


On August 13, 2010, Claimant was notified that he had been f~Mind guilty as charged and was assessed a Level 30 Lay Record Suspension with a one year probationary period.

 It is the Organization's position that the Carrier did not meet its burden of proof: It asserted that the record indicates that the Claimant who at the time of the incident has 29 plus years service, 24 ofwhich had been as a Track Inspector, did nothing wrong or out of place concerning the allegations. It argued that the testimony ofthe Claimant verifies that on Inlay ?6th, and for several days prior the Claimant as well as other personnel working throughout the area covered by the charges had experienced trouble with their (ffLC'S) units as they were giving false readings as to the actual location of on-track vehicles indicating they were outside their limits for track protection when they were not, which according to the Organization is what transpired in this instance as well. It further argued the occurrences of false readings had been reported several times which was documented by the "trouble tickets" issued for that area.

 The Organization directed the Board to carefully examine Exhibit #4 attached to3 the Investigation, which is a diagram of the location and the authorities that the Claimant hail been granted. It stated that Claimant had been granted two overlapping track authorities. One (22-64) v,as granted on Main Track ? between EBCS, Lomax, switch yes, and west crossover, Stronghurst, switch no. Another authority went from W13CS Niota to WBCS I.omax. The track between the EBCS Lomax and WBCS is the overlapping limits and this is the location the Claimant was in when authority (22-64) was released. According to it, because he was inside those overlapping limits that allowed the Claimant to still be under On Track Protection, but when the last authority limits were released, this put the Claimant back within the limits of the: previous authority were the HLCS was issuing false trouble alarm; which is why he was shown Outside his track authority even though he was still protected. It also stated that the Claimant's truck had just recently been installed with a Smart Mobile Client which is a computer generated system whereby an employee can acquire On Track Protection without actually speaking with the Train Dispatcher. Claimant's training consisted of a two hour conference call with other personnel wherein they were instructed in its use. The Organization suggested that because of the insufficient training, it was kind of learn as you go, or on the job self-training and that when the Claimant acquired the third segment of track and was in the process of releasing; a track authority he released the portion just acquired. Nonetheless, he was still within the overlapping limits and protected by the, second track authority. It concluded by requesting that the discipline he rescinded and the claim be sustained as presented.
 P.L.l3. No. 7114$
 Award fro. 64, Case No. 64
 Page 3

 It is the C'arrier's position that can the date in dispute Claimant was working. as a Track Inspector between Lotnas and Stronghurst stations assigned to a hyrail vehicle inspecting tracks. It stated that when operating a hyrail on the track employees are required to get secured tract: warrants through their Dispatcher that allows them to occupy that portion of track they are on sally without the threat of any on-coming trains or any other equipment being on the track at the ,acne tine. In addition there is a global positioning device (t IlaCS) that the Carrier installed in its vehicles to both verify its position as well as provide an additional safety measure to the driver. On May 26th the Dispatcher was notified through the lllrt'S system that the Claimant was outside of the authority of his track warrant. It further argued that the Claimant admitted that he tried to release track warrant two, but instead released number three on page 31 of the transcript, therefore, he was guilty. It closed by asking that the discipline not he disturbed.

 The Board has thoroughly reviewed the transcript and record of evidence and has determined that the Investigation was held in compliance with Rule I 3(a) the Discipline Rule and Appendix No. 11.

 Review of the record substantiates that the Carrier is correct that the Claimant inadvertently released his third track warrant, but that does not answer the: question of whether or not he lost his protection. The reason being is that the Organization and Claimant specifically stated multiple times during the Hearing the Claimant did not lose his protected status because he was still within the overlapping limits and protection ofthe second track authority. The Claimant further stated that the HLCsy=stem in his vehicle and another was not working properly and repeatedly sent false signals that vehicles were outside oftheir protected area when they were not, and this had been reported to the Dispatcher several times. The diagram that the Carrier introduced at the Investigation showing the three different track warrants does not dispute the Organization's position and the Claimant's rendition of the incident. On page 4? and 43 ofthe Transcript, the hearing Officer made it clear that he did not understand if the C'laimant's assertions were correct which led to the questioning of its one Carrier Witness as follows:

 "Michael llcille: All right, urn, I -just needed to understand the process Mr. Alvarez explained. l wanted to bring you in to ask a few questions about it to see if you've ever worked with it. l don't have any other questions, but I do have one last question. Is there anybody that we could get that would be a resource that could bet that would lie a resource that could explain this over via speaker phone if we needed to? Is there somebody available?
Jason Dye: Um,
Angel Alvarez: Before you go on could t ask a question about that?
                                  P.L.I3. No. 70413

                                  Award No. 64, Case No. 64

                                  Page 4


      Michael Heille: Oh, yeah, yeah, I just wanted to ask him one last question. Could we have somebody testify via speaker phone? Would that be all right, Mr. Dye, or do you know somebody, that we could get via speaker phoney


      .Jason Dye: Um, the only guy I know his, his last name is Bennett, but I can't think of his first name or anything right now.


      Michael t-Ieille: Okay, I have no more questions ...." (Underlining Board's ermhtisis)


No recess was taken to see; if they could find Mr. Bennett anti on page 48 of the Transcript the Claimant's representative asked Mr. Dye the following questions:

      "Gary Marquart: .lust one clarification. If you hail two authorities and they overlapped each other. In other words, a segment of those two authorities were overlapping.


      .Jason Dye: Okay.


      Gary Marquart: And you released one of the authorities, but you were within those overlapping limits. Would you still be protected if you were within the overlapping limitAll


      Jason Dye: Yeah, if you got you're track and time.


      Cary Marquart: You would still be protected.


      Jason Dye: Correct." (Underlining Boards emphusiyt


'Me record is clear that the Claimant's testimony was never refuted that he had overlapping protection and the FILCS system on his vehicle was sending a false signal. Countless Board have repeatedly riled that un-refuted statements must he considered as being tactually correct. Therefore, those fact coupled with Witness Dye's confirmation that if a person had overlapping authority his protection would not cease leads to the inescapable conclusion that the Carrier (lid not meet its burden of proof. The Board finds and holds that the discipline is rescinded and is to he removed from the c'laimant's personnel record and his disciplinary status reverts to that held prior to the instant care. The additional requests set forth in part ? of the claim do not apply as the Claimant lost no compensation nor had any benefits impaired.
 P.1..B. No. 71148
 Award No. 64, Case No. 64
 Page S

 AWARD
Claire sustained in accordance with the Findings and the C'`arrier is directed to make the Award effective can or before 30 clays fallowing the date the Award was signets by the parties.

 William R. Miller. Chairman & Neutral rMember

 Samantha Rogers, ('arrier Mcf4er

 Award Date:

C)


David D. Tanner. Employee Member