BROTHERHOOD OF LOCOMOTIVE ENGINEERS )

                  VS. ) Parties to Dispute


UNION PACIFIC RAILROAD COMPANY

 STATE$= Of CLAM:
    Claim in behalf of Engineer T. J. Burke, Union Pacific former Chicago and North Western Transportation Company, for compensation for all lost time including time spent at the investigation and that this incident be removed frcm Claimant's personal record when he was investigated on the following charge:


          'Your responsibility for your failure to operate your train in accordance with speed restrictions on the East Iowa Subdivision between Boone, Iowa and Clinton, Iowa and

        your violation of Federal'

          Regulations 49 CFR Part '

          240.117 (e) on March 6, 1992' '

        while employed as engineer

        of 8021 East, ROPPC."


                        FINDINGS


      Upon the whole record and all the evidence, the Board


finds that the parties herein are Carrier and Employee within

p(-Q No - 5.33

,4WD VJ - spy


the meaning of the Railway Labor Act, as amended, and that the Board is duly constituted by agreement and has jurisdiction of the parties and of the subject matter.
 Claimant was found responsible for failure to operate his ' train within speed restrictions between Boone and Clinton, Iowa. He was assessed five (5) days suspension and his - locomotive engineer's license was revoked for thirty (30j days per FRA regulations.
 The incident occurred on March 6 and the speed recorder tape was processed on March 19. It was established at the investigation that the tape of the lead locomotive unit was not usable and the tape from the second unit was the basis for the charge and the finding of responsibility. It.was stated at the investigation that the engineer verified the accuracy of the speedometer on the first unit but not the second. The tapes used indicated excess speed up to sight (8j mph at times.
 - There are aspects of this case that are troubling to the
 Board. In addition to the rather long time between the trip and
 the processing of the tape from the second unit is the lick
 _2_
                                                    Y'GS ND- 5373 ,~-~ o N~ _ 3~


        C= d C: din cf Cu:StGdy for t -e only evidence against the cCC;iS-';. --


    _. __--__-Sn_-First_D_u? ~~on Award. 24021, a UP. tease., it i-rya held i^ pa=t


        as follows:


              "While-it is not necessary in a discipline case for Carrier to prove beyond a moral certainty the truth of the charge, there still must be some evidence in the record

                which supports the Carrier's assertions: -

                In this case, Carrier, bases its action

                against Claimant upon speed recorder -

                tapes. But there is no certification

                of authenticity of the tapes, and no

                claim of custody. Moreover, even if

                the tapes could be deemed authentic, _

                there was no calibration of the

                recording device." -


            The elements in Award 24021 are also present here. The'


' claim will be allowed under this precedent. -

                              $PPM

                                                      .


          Claim is sustained.


                              ORDZR

        The Carrier is ordered to make this Award effective within thirty (30) days from the date shown below.


        Employee Member Car.-.446r Membe


' Chair an an eutral Member

        Dated: ~~4-f'

                                ._g_