PUBLIC LAW BOARD NO. 3765
Parties to the Dispute

BROTHERHOOD OF MAINTENANCE

OF WAY EMPLOYES




GRAND TRUNK WESTERN
 RAILROAD COMPANY

 STATEMENT OF CLAI1
Claim appealing the 35 demerits assessed K. Shepherd, as a result of investigation held on April 12, 1994, in Battle Creek, Michigan.

 OPINION OF THE BOARD
Case No.: 69

 At the time of the incident that gave rise to this case, Claimant K. Shepherd was employed by Carrier as a Track Patrol Foreman headquartered in Valparaiso, Indiana. On October 16, 1994, while inspecting track in claimant's territory, the Roadmaster and an FRA Inspector uncovered a joint with a cracked angle bar, a surface defect, and a gage 1k inches too low. Because the track was not in compliance with "FRA Track Safety Standards," Carrier was penalized for



having a code I violation. As a result of the FRA inspection, Claimant was directed to attend a formal investigation of the matter on April 12, 1994. The investigation notice reads as follows:

          ***to determine your responsibility, if any, for alleged failure to detect and take proper remedial action for a gage, cracked angle bar, and surface defect at M.P. 66.3, Eastbound Main, South Bend Subdivision, that were not in compliance with Paragraph 213.9 of the FRA TRACK SAFETY STANDARDS, which resulted in a Code 1 Violation on March 16, 1994.


The hearing was held on April 12 as scheduled. Claimant was granted all rights and privileges guaranteed to him by Agreement. A transcript of the hearing has been made a part of the record placed before this Board. As a result of the investigation, Claimant was found guilty as charged and his record was assessed with thirty-five demerits. The organization appealed the decision and the case was placed before this Board for final adjudication.
 This Board has reviewed the record before it. Based on that review, we are compelled to conclude that the record does not support the fact that Claimant was in any way negligent in the performance of his duties. Further, it cannot be concluded from the record that the defects discovered by the Roadmaster and the FRA Inspectors actually

3yG5-G9


existed to the degree noticed on October 16, 1994, when Claimant last inspected the track.
 The Board is mindful of its duty not to substitute its judgment for the judgment of the Carrier in discipline situations. On the other hand, it does have authority to modify penalties it considers to be excessive under the conditions set out in this record.
 Based on Claimant's long years of service and his exemplary work record, the Board concludes that Carrier can make its point in this case with a letter of admonishment. The record shall be modified to reflect that.

            AWARD


The penalty of thirty-five demerits assessed Claimant shall be reduced to a letter of admonishment.

R.E. Dennis,

Neutral Member


R6,'J. O'Brien, carrier member

 Bartholomay,
 E ploye Member

 February 20, 1996
 Date of Adoption