Brotherhood of Maintenance of Way Employes
 PARTIES TO DISPUTE: and
 Burlington Northern and Santa Fe Railway
 (Former ATSF Railway Company)

 STATEMENT OF CLAIM:













FINDINGS AND OPINION:
Upon the whole record and all the evidence, the Board finds that the Carrier and Employees ("Parties") herein are respectively carrier and employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the dispute herein.

 The Claimant, Mr. Ricky D. Phillips, entered the Carrier's employment in 1977. He was a regularly assigned Track Supervisor at Lubbock, Texas on September 25, 2002, although on authorized paid vacation on that date. The record shows that he is a certified track inspector, qualified by training and experience to determine whether track meets the regulatory requirements of the U. S. Department of Transportation's Federal Railroad Administration ("FRA").'

 On December 19, 2002, he was sent a notice of investigation and charges by the Carrier's Road Foreman of Engines, reading as follows, in pertinent part:

 'Title 49, Code of Federal Regulations, (49 CFR) §213.7 prescribes the training and/or experience required of an individual designated to inspect track.

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The rules in the above notice read as follows:

 Maintenance of Way Operating Rule ("MWOR"1 1.3.1


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 MWOR 1.6
 Employees must not be
 1. Careless of the safety of themselves or others
 2. Negligent
 3. Insubordinate
 4. Dishonest
 5. Immoral
 6. Quarrelsome
 or
 7. Discourteous.
 MWOR 1.9

MWOR 1.13


MWOR 1.18


MWOR 1.26


Maintenance of Way Safety Rule ("MWSR"1 S-26.1


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Claimant testified in his own behalf and was represented by the Organization's Vice General
 Chairman. The Carrier's Superintendent of Operations, offered testimony and documentary
 evidence. Mr. F , a businessman engaged in the sand and gravel trade, and Mr. M , the
 owner of M Railroad Construction Company, a contractor performing track construction
 and repairs, appeared as witnesses for the Claimant. Mr. M testified that he is qualified to
 perform FRA track inspections. A transcript of testimony and evidence taken in the investigation
 is a part of the record before this Board.
Mr. F _'s industrial facility with a short line rail carrier, and deemed the track met the FRA's
 Track Safety Standards. The short line's operator, a Mr. W , nevertheless refused to serve
 Mr. F _'s facility, contending the track and/or connecting switch were in an unacceptable
 condition. In an effort to resolve the dispute, Mr. M proposed to Mr. F_ that a third,
 neutral party, an FRA-qualified inspector, examine the track and switch and render an informed
 opinion as to their fitness for service. Mr. M suggested the names of several track
 inspectors in the vicinity. Because his company frequently performed contract repair work on
 industry tracks served by the Carrier, he had made the acquaintance of the Claimant and other
 Carrier-employed personnel. Since the Claimant was located nearest the subject site, and was on
 vacation at the time, Mr. M offered to contact him. He also gave one of the Claimant';s
 business cards to Mr. F_. Mr. M said he called the Claimant, who agreed to perform
 the inspection. Mr. M picked up the Claimant at his home and drove him to the inspection
 site.

 The Claimant performed the inspection, deemed the track safe to be used, and presented Mr. F_ a handwritten statement (herein "inspection report") dated September 25, 2002, reading as follows:

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The Claimant signed this inspection report and added his employee number and title, "Track
 supervisor BNSF Ry. Co." Mr. M testified that he asked the Claimant to show his
 qualifications on the inspection report, hence the entry of his job title under his signature.
ant's appraisal of the track's condition. He therefore recommended that Mr. F_ contact the
 Carrier, the short line's only connection to the nation's rail network, because Mr. F
 anticipated a substantial volume of traffic which would benefit the Carrier, as well as the short
 line, if he could obtain rail service. Mr. M stated that the inspection performed by the
 Claimant did not affect his relationship with the Carrier. He also stated that he did not hire the
 Claimant to do this work; that he had "never known of them [track inspectors] to charge anyone
 for looking at a track."

 Mr. F_ testified that after his privately owned track was repaired and deemed fit for
 service by Mr. M 's company, the short line operator, Mr. W_, said the connecting
 switch and the track were "bad and out of service and had been for a period of time," even though
 he was aware of the repairs made by Mr. M 's company. Mr. F_ then told Mr. M
 that they needed another opinion. He testified that Mr. M said he knew a Carrier-employed
 inspector who was on vacation. Mr. M brought the Claimant to the site. Mr. F_ said
 this was the first time he had seen the Claimant. He firrther testified that there was no exchange
 of money or any other compensation for the inspection; "We just shook hands and I thanked
 him." He denied that the Claimant represented himself as an agent of the Carrier for this
 inspection. When asked if the Claimant performed the inspection by using the Carrier's rules, or
 the FRA regulations, he answered:

2These sections of 49 CFR Chapter II describe permissible track characteristics with respect to gage, surface, guard rails, crossties, etc.

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When Mr. W continued refusing service to Mr. F _'s facility, he attached the business
 card to the Claimant's inspection report, and submitted a photocopy, showing the attached card,
 to the Surface Transportation Board ("STB"), a Federal agency that Mr. F_ had petitioned to
 resolve his conflict with the short line carrier, and to obtain service on the private track serving his
 facility. Mr. F stated that this Carrier's, i.e., Burlington Northern & Santa Fe's, reputation is
 in no way diminished in his view. If he could establish service on his track, he would be able to
 offer a considerable volume of business to both the short line and the BNSF.

 The Claimant testified that he was on vacation and received a call from Mr. M on
 September 25, 2002. He described the contact:
 It was just a spur of the moment thing. I received a phone call and asked if I'd be
 a tie breaker. Would I look at a switch that they felt was serviceable, and they
 were being told it was not serviceable, and if I would mind looking at a switch, and
 I agreed. [Transcript Answer No. 146]

 He said he had never met Mr. F_ before he arrived at the inspection site. He did not represent himself as an agent of the Carrier, and he did not give a business card to Mr. F_. He did not charge for the inspection; he said he "did it for a handshake." There was no intent, nor even a realization, that his act would result in any adverse effect to the Carrier.

 He testified that he based his conclusions on the track's condition "strictly" on the FRA's standards, it met all the FRA's standards for a Class l track, and he wrote the inspection report. His business card was not appended to the inspection report by himself. He showed his job title to attest that he was qualified to inspect track. He further testified that he was not directed by the Carrier to perform this inspection, nor did he seek permission from any Carrier officer to do so. He did, however, advise his immediate supervisor, a Roadmaster, after he completed his vacation. He gave this account of their discussion:

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 The Claimant alluded to several past instances of problems between himself and Mr. W , and
 suggested that Mr. W was motivated by their previous disagreements, about which he
 supplied details.

 The Carrier's Superintendent of Operations, (herein "Superintendent") tested that on December 10, 2002, he was contacted by the Carrier's Law Department, concerning an inquiry or complaint that the Claimant had represented himself as an agent of the Carrier while inspecting track on September 25, 2002. He said that the Law Department had told him that Mr. W has threatened to file a lawsuit against the Carrier because of the Claimant's inspection. The STB had sent the Law Department a copy of the inspection report with the Claimant's business card stapled to the upper left corner. The Superintendent testified that by affixing his business card and by entering his employee number, his job title, and his employer's initials on the inspection report, the Claimant was representing himself as the Carrier's agent. These acts, he testified, subject the Carrier to possible lawsuit damages, criticism, and STB fines, and the Claimant risked the reputation and financial well-being of the Carrier.

 He placed in evidence the letter dated June 28, 1993, alluded to in the notice of investigation and charges. This letter, written over the signature of then-Superintendent K. W. Ross, and sent to the Claimant by Certified Mail, Return Receipt Requested, reads as follows:





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In response to a series of leading questions by the Conducting Officer with respect to the
 above letter, the Superintendent testified that the Claimant's inspection closely resembles the
 activity proscribed by Mr. Ross's letter, constitutes a conflict of interest, negligence, and
 insubordination, risked the Carrier's reputation with the STB and its customers, and placed its
 financial well-being at risk. He further asserted that the short line carrier itself and all its
 customers are customers of the Carrier, as the short line's exclusive connection. He therefore
 concludes that the Claimant's inspection and inspection report created a conflict among the
 Carrier, the short line, and the short line's customers. Although he was unable to state with
 certainty that the Carrier had lost any business as the consequence of the inspection, he testified
 that adversarial contact from Mr. W 's attorney represents a loss of good will and affected
 the Carrier's reputation.



The Organization promptly appealed the Carrier's disciplinary decision to the Carrier's Labor Relations Department, and it was there denied. The dispute has therefore been referred to this Board for fiuther consideration.

 The Board must address a threshold procedural issue raised by the Organization. An objection to the investigation's timeliness was twice submitted by the Claimant's representative before any testimony was taken, reiterated at the investigation's close, and renewed by the Organization in its appeal

 The Organization argues, supported by the Claimant's testimony, that he told his immediate supervisor, the Roadmaster, in the presence of witnesses, of his inspection and written report on September 30, 2002, but the Roadmaster said "he didn't want to get involved." From this, the Organization concludes that the investigation was not timely held, the notice of charges coming more than two months later.

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 The Board concludes that the investigation was not untimely held. Schedule Agreement Rule 13, the Discipline Rule, has two discrete time limit provisions. The second provision may be quickly disposed of. Rule 13 - (b) provides that the investigation will be held within thirty (30) calendar days after an employee is held out of service pending the investigation. Here, the Claimant was not withheld from service. In the alternative, Rule 13 - (a) provides, in part, "[N]o employe who has been in service more than sixty (60) calendar days will be disciplined without first being given an investigation, which will be promntlv held." (Emphasis added). "Promptly" is an imprecise term, which must be interpreted from its context. From the record, it is apparent that the Roadmaster found no fault in the Claimant's inspection. Of course, he had not seen the inspection report submitted to the STB, with the attached business card and the Claimant's job title and the Carrier's initials. From the Claimant's account in the pancake house, there was nothing which sparked the Roadmaster's interest. The triggering event was the Law Department's receipt of the inspection report, referred by it to the Superintendent on December 10, 2002. The notice of charges was written on December 19, 2002, initially setting the investigation for December 30, 2002. The Board is persuaded, on this record, that the investigation was "promptly held" after the Carrier received information indicating a possible violation of its rules. The Board's determination here, however, is not intended to establish a hard and fast interpretation of Agreement Rule 13 - (a). Differing circumstances might dictate a different determination in another case.

 Turning to the merits, the Organization argues that the inspection was carried out in conformity with FRA standards and the Claimant did not represent himself as a representative of the Carrier. He did not attach his business card to the inspection report, and indicated his employment status only for the purpose of showing that he was a qualified FRA inspector. The Carrier responds that when he identified himself as an employee of the Carrier, this constituted a conflict of interest not permitted by the Carrier's rules.

 The record clearly proves that the Claimant did not give his business card to Mr. F -
 It was obtained by him from Mr M . Its attachment to the inspection report was not
 intended by, sanctioned by, nor even known to the Claimant. The Board is persuaded that the
 endorsement of his job title and the Carrier's initials on the inspection report was an unmindful or
 unguarded act intended only to establish his credentials as a competent, trained inspector. In
 retrospect, it was imprudent to do so, but the Board believes that the Claimant could not have
 foreseen at that time the adversarial reaction which followed.

 The more important issue here is the Carrier's conclusion that the inspection constitutes a "conflict of interest." Black's Law Dictionary, Sixth Edition, West Publishing Co., (1990), defines "conflict of interest" as follows:

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Webster's New World Dictionary of the American Language, Second College Edition, Simon & Schuster, (1984), defines the term in this fashion:

When Mr. Ross wrote the Claimant in 1993,' the Claimant's track repair business typifies the above definitions of a conflict of interest. From the text of that letter, it appears the Claimant was, for remuneration, repairing tracks connecting with his employer, and then in his capacity as an employee, he was in a position to approve the work that he himself had done as an outside contractor.

 His actions in this instant case are easily distinguishable. The Board does not concur in the Superintendent's assessment that this "closely resembles" the business he was engaged in in 1993.' The Claimant was not engaged in a "business" of repairing tracks. The use of the word "business" in Mr. Ross's letter denotes a commercial enterprise for profit. Furthermore, the Claimant was directed to cease and desist from soliciting, accepting, or performing repair work for customers located on Santa Fe's lines. Since the Claimant - according to his own testimony and that of two witnesses not in the Carrier's employ - received no remuneration from anyone, Mr. F- could hardly be characterized as a "customer" of the Claimant. Black's defines a

 'The Organization argued that the Claimant never received the 1993 letter. Lacking certain evidence that it was or was not received, the Board assumes that it was sent, for the purposes of this discussion.

 "'Closely resembles" is not the Superintendent's words, but reflects his affirmative response to a leading question propounded by the Conducting Officer. (Transcript Question and Answer No. 56).

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 "customer" as one who repeated or red has business dealings with a tradesman or
 business, or a buyer, purchaser, consumer, or patron. The Claimant performed this inspection
 work more in the manner of a favor for an acquaintance, Mr. M , who in turn arranged the
 inspection for his customer, Mr. F_, as a "tie breaker." The Claimant was not engaged in a
 "business" which sought or solicited the inspection. Rather, it was a happenstance that the
 Claimant was known to Mr. M , was available, and was nearby. In any event, Mr. F _'s
 track was not located on the Carrier's lines. Under the totality of these circumstances, the Board
 finds no conflict of interest and no disobedience of the instructions in the 1993 letter.
chain of events resulting from his inspection report. The record does not show that he expected,
 knew, or intended that his business card (supplied by the Carrier) would appear on a document
 submitted to the STB in support of a petition involving a service dispute between Mr. F and
 the short line carrier. He did not give his card to Mr. F_, whom he met for the first time when
 brought to the inspection site by Mr. M . While it was imprudent to put the Carrier's initials
 on the inspection report, the Board is persuaded that it was not intended to represent the Claimant
 as an agent of the Carrier. He testified, "The way I described myself was just for the qualifica
 tions to show that I was qualified to inspect track." (Transcript Answer No. 155).

 The Claimant, or any person not privy to the apparent tension between Mr. F and Mr.
 W_, for that matter, could not have foreseen the repercussion which was forthcoming, i.e.,
 the threat of a lawsuit. This reaction might be explained by reference to Mr. F 's assertion
 that Mr. W_, himself, has a conflict of interest:













The Board, of course, cannot know whether the witness's opinion is well-founded, but no better explanation has been offered for the short line's refusal to provide service to Mr. F _'s facility, after the track and switch were deemed to meet FRA Class I standards by both Mr. M and

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 the Claimant. It seems unlikely that a simple difference over the track's condition would have induced the short line operator's irascible reaction.

 The Board must, unavoidably, consider the Claimant's account of some previous disharmony between himself and Mr. W . (See page 7, supra). At worst, one might speculate that the Claimant's inspection was a retaliatory gesture toward a person who had troubled him in the past. But such speculations are not proof. Without more persuasive supporting evidence, the Board is not warranted in imputing any such sinister motive to the Claimant.

 The Board has carefully considered the sundry rules with which the Claimant was charged and found to have violated. MWOR 1.3.1 has broad application, and was not discussed in detail in the transcript. It does, however, require employees to be familiar with and obey all rules, regulations, and instructions. The Board finds no violation of this Rule.

 MWOR 1.6 requires, among other injunctions, that employees must not be negligent nor insubordinate. The Superintendent testified that the Claimant was negligent in perfomvng the inspection at Mr. F 's facility and writing the inspection report, placing the Carrier's reputation and financial well-being at risk. He also asserted that the Claimant was insubordinate when he disobeyed the specific instructions in the 1993 letter. The Board believes that the inspection and the consequent inspection report cannot be considered negligence, which connotes a lack of reasonable care to prevent damage or injury. The Claimant's acts do not constitute insubordination. The 1993 letter was the basis for the Superintendent's conclusion that he was guilty of insubordination. The Board finds no such disobedience, as discussed on page 10, supra.

 MWOR 1.9 directs employees to behave in such a way that the Carrier will not be criticized for their actions. Understandably, when the Superintendent saw the inspection report bearing the Claimant's business card and other identification, it appeared that the Claimant had represented himself as an agent of the Carrier. The Superintendent concluded that because the Carrier received criticism from the short line and the STB, even a threatened lawsuit, the Claimant violated MWOR 1.9. (Transcript Question and Answer No. 39). The Board does not concur in this conclusion, in light of all the evidence and testimony. The inspection and the inspection report were not unlawfirl. On their face, they were not confrontational. It was only the short line operator's reaction that engendered the tempest. That an action results in a negative response does not, of itself, prove that the act was somehow wrong. The Claimant could not have foreseen the outcome. In today's litigious society, no person or entity is immune from threatened lawsuits, whether or not based on facts, good evidence, or sound judgment.

 MWOR 1.13 requires employees to comply with instructions from their supervisors and managers of other departments when they apply to their duties. The Superintendent testified that

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 the 1993 letter came within the coverage of this Rule. The Board has already discussed the 1993 letter and is persuaded that the Claimant did not disobey that letter, nor MWOR 1.13.

 MWOR 1.18 prohibits employees from engaging in another business or occupation that would create a conflict of interest. The Board, for reasons discussed above, finds no conflict of interest by the Claimant.
Carrier concluded that the Claimant's inspection and qualification of Mr. F _'s track consti
 tutes discrimination between Mr. F 's interests and those of Mr. W . The problem with
 this analysis is that the alleged discrimination is solely the product of Mr. W 's reaction to
 the inspection. On its face, an honest, unbiased assessment of a privately-owned track does not
 rise to the level of prolnbited discrimination. The discrimination must be obvious, not hidden
 from the observation of guileless persons. It must arise from the clean hands of the one asserting
 discrimination. While not finally determinative, Mr. F 's testimony alluding to Mr. W 's
 other business interest casts a shadow of insincerity over his concern about the condition of Mr.
 F _'s track, and suggests that his refiisal to service this facility did not have its genesis in purely
 safety issues.
appear to conflict with those of the Carrier. Outside activities are to be conducted so as to avoid
 loss or embarrassment to the Carrier. It also repeats MWOR 1.18, word for word, with respect
 to engaging in other businesses or occupations which create a conflict of interest with their
 employment by the Carrier. It finther states that these rules are designed to protect the reputation
 and financial well-being of the Carrier. The ultimate question is whether the Claimant could have
 reasonably foreseen the end game which resulted from his inspection and inspection report.
 Certainly, he did not go as a representative of the Carrier, and Mr. W 's erroneous conclu
 sion that he did is based on the business card and his identification of himself as an employee of
 the Carrier. This was ill-advised, in the brilliance of hindsight, but it does not rise to the level of
 misconduct which wan-ants severe discipline, much less dismissal from the Carrier's service.
Claimant's account of his conversation with the Roadmaster on September 30, 2002, serves to
 reinforce the Board's conclusions about the chain of events which culminated in the charges
 against the Claimant. When the Claimant told the Roadmaster about his inspection, this candid
 disclosure confirms that the Claimant had no realization of wrongdoing. The Roadmaster's
 indifference to his disclosure further indicates that no misconduct was clearly in evidence. The
 Board is persuaded, therefore, that it was Mr. W 's reaction, not the inspection, of itself,
 which caused the Carrier's Road Foreman of Engines to draw up charges against the Claimant.

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 Case No. 320

 The Claimant has more than 25 years' service with the Carrier. His only disciplinary entry was in 1990, an accumulation of demerits cleared by good conduct. He received a quality performance entry in 1994. The 1993 letter is not remarked in his personal record. The Board cannot find that the Claimant violated the several rules with which he was charged. The claim will be sustained

The claim is sustained. The Carrier is ordered to comply with this Award within thirty (30) days from its date.

                  Robert J. Irvin, Neutral Member


RR. . B. Wehr ' Employe Member William L. Yeck, Carrie ember

              ~9 Q~


Date

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