BROTHERHOOD OF MAINTENANCE OF WAY
 E MPLOYES DIVISION - I BT RAIL CONFERENCE
vs

 BNSF RAILWAY COMPANY




STATEMENT OF CLAIM:









FINDINGS:

that Employee and Carrier are employee and carrier within the meaning of the Railway Labor
 Act as amended= and that the Board has jurisdiction over the dispute herein: arid that the parties
 to the dispute have participated in accordtutce to the Agreement that established the Board.

 On October 28. 201 t). Claimant was directed to attend a formal Investigation on November 9, 201(), which alas mutually postponed until December 21, 2(110, concerning in pertinent part the following charge;:


                                Page 2


      knowledge was Monday, October 18, 2010.


      This investigation rill determine possible violation of El 2.1 Purpose of Track Inspections, El 2.2.3 Authority and Responsibility of Inspections, El 2.4.1 Minimum BNSF Inspections of Frequency, and El 2.3.2 FRA Track Safety Standards Minimum Inspection Requirements."


On January 17. 201 1. Claimant was notified that he had been found guilty as charged and was assessed a 10 Day 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 argued that on October 14, 2010, Claimant fulfilled his. job responsibilities and he was not called for work on his rest days October 15th and 16th thus according to it the allegations are in error. Additionally, it asserted that the (claimant's co-worker, J. Romero had already accepted responsibility f«r the aforementioned charges. It concluded by requesting that the discipline be rescinded and the claim sustained as presented.

 It is the position of the Carrier that the record shows that the Claimant was assigned as a Track Supervisor and it was his responsibility to perform a thorough inspection of the tracks he is responsible for and take appropriate action to either make the necessary repairs or take necessary steps ensuring the trains arc: safe. It argued that lie did not inspect the track on October 14, 2010, and on his return from his rest days he was informed that the track was out of compliance following his failure to inspect. It closed by asking that the discipline not be disturbed and the claim remain denied.

 The Board has thoroughly reviewed the transcript and record of evidence and has determined that the Investigation was held in accordance with Rule I 3(a) the Discipline Rule and Appendix No. 1 1.

 Review of the record reveals that the Claimant was charged with having violated the Rules set torth in the charges on the dates of October 14 through 16, 2010. however, the disciplinary letter of January 1 ?, 201 1, narrowed dawn the alleged violation period to October 14, 2010, making no reference to either October 15th or 16th. The Board is in agreement that there was no basis for the latter two days as the record substantiates those were the Claimant's rest days and he was not called in work on either day.

 Turning to October 14th there is no disagreement between the parties that the Claimant did not inspect track from MI' 695.3 to klP 747.9{30, but the question is did the Claimant have a ,justifiable reason for not making the full inspection. On pages 20 and 21 of the transcript the I tearing Officer questioned the Claimant as follows:
 P. L. B. No. 7048
 Award No. 81, Case No. 81
 Page 3
"Sheri Ellis: If you could explain kind of the layout of, the territory you inspect.
Jimmy Zaikowski: My territory comes from, uh, Vaughn, which is, uh, you know, 788.9 all the way down through to 695.
Sheri Ellis: Okay.

    Jimmy Zaikowski: And, uh, 1, I went to Vaughn and Hy-baited Vaughn all the way down to, uh, Yeso and they had, uh, they had a Form B and, uh, putting ties in. Dispatcher wouldn't let me through, so he kicked me off, I think it was around 1 o'clock.


    Sherri Ellis: And, you were unable to get back on the track on that day, correct?


    Jimmy Zaikowski: That is correct." (Underlining Boarr!'s emphaav%s)


The Claimant's testimony above was not refuted. It is clear that he was taken off the track by the Dispatcher on October 14, 2010, and was not allowed to get back on the track and absent any alternative theory as to how he could finish his inspection on that date, it is determined that the Carrier did not meet its burden of'proof: The Board finds and hods the discipline is set aside and the claim is sustained in accordance with part 2 of the claim and the Claimant's disciplinary status reverts to that he held prior to January 17, 201 1, in accordance with the Carrier's Policy for Employee Performance Accountability (PCPA j.

 AWARD
Claim sustained in accordance with the Findings and the Carrier is directed to make the

 Award effective on or before 30 days following the date tile Award was signed by the parties.

 William R. Miller, Chairman & Neutral Member

 Samantha Rogers. Carrier ember

 David D. Tanner. Employee Member

 Award Date: