Carrier alleged violations of two Rules, but the primary Rule is 1.3.3 which roads as follows (It was not established that any one of the three Claknanfs removed the spike from the switch which Is a violation of Rule 2.6.1A.):

"Circulars, Instructions, and Notices

Circulars, Instructions, notices, and other information are issued ant)

cancelled by the designated manager. Before beginning each day's work

or trip, trakunen, enginsmon, and any others M duties_ra;guire. must

review those that, agi*. to the brritorv they will' wick gr)." (Emphasis

added)

The aforoquoted undarseured portion of 1.3.3 is generic as to whom other than engineers and trainmen are obligated to review the particular list of track conditions, "brat apply to the territory they will work on."

To be successful in establishing guilt, the Carrier must establish that each Claimant was to work In the territory so the authors of the Rule Intended it to be applied.

Claimant Marquez was the Foreman of a resurfackrp gang. He used tin track that Is the center of this dispute to park the equipment on overnight. He followed all the procedures required to protect the machinery and then no"ed the Dispatcher to take the track out of service because of the machinery.

On March 7, the gang moved on and Marquez nofflfsd the Dispatcher to advise the machinery was no longer stored on the track. On March 16, 2006, Ckslment's Supervisor contacted Claimant and advised the track conditions list still Noted the track occupied by the machinery, so Claimant called the Dispatcher to advise that the track was clear of machinery.

From March 1$,1006, until the derailment on June 2, 2006, the track was not Meted as being out of service as (t should have boon. In fact, it is noted that Claimant

Claimant Marquez and the surfacing gang had moved on and, as far as this record Is concerned, performed no work and/or was not scheduled to work in the area.

Claimant Marquees record is to be cleaned of the discipline imposed as the Carrier has failed to establish he was in any way responsible for overlooking the fact that after the 16th of March, the track no longer was toted as being out of service. He also Is to be paid for any time he may have lost because of this charge.

In fact, the Carrier witness tesMd that "they reviswod the track condiliona Hot once a month and "they" tailed on at least two occasions to note the track was no longer listed as being out of service. From December 2001, to March 8, 2005, tire track condltlon Noted this track as being out of service because of a missing frog, On March 6, 2006, Claimant Marquez to protect the machinery of his crew used the track (accessible from one end) to stone the machinery and did have the track listed as being out of service. On March 7, when Claimant Marquees crew moved on, he called the Dispatcher to remove the out of service because of machinery :serge. The Dispatcher removed the notice about the missing frog. Claknant's Supervisor did on March 15, 2005, call the Claimant to advise hurl that the track wpa still listed as being out of service because of stored machinery. Claiment Marquez did as instructed, thus from Marquez's call to the Dispatcher on March 16 to the derailment, the track was not listed as being out of service yet the frog was still muting.

Claimant Reyes was the Track Supervisor. The following testimony of Claimant Reyes appeared as follows:

"182. tae Okay, we talked about the track condition massages. What Is your responsibility as you see It as far as the, the dffferent

183. Q. Okay, ff there's an unsafe condition such as the frog being out of a system, is that something that should normally be in the track condition messages?

A. Yes.

184. Q. And whose responsibility is it 6o make sure that Is placed on "hero?

A. Whatever employee's covering the territory at the tine.

185. Q. And whose responsibility is !t to assure that the track is maintained safely, whether that Inspecting, riding over the track and doing your inspection or making sure that a portion of that track Is taken out of service and not used?

A. Track supervisor, foramen, any employee whose duties are in

the area."

Claimant Reyes by the atorequoted, candidly admitted raring the track condition list is part of his responsibility. Claimant Reyes may have been on vacation as of June 2, 2005, but from March 15 until his vacation started he was present and should have caught the omission of tire out of service on the track hero concerned.

Claimant Cordova is also a Track Supervisor. Nee admitted he know of the Wasing frog and that he does review the track condition IIst. Obviously, he overlooked the track with tire missing frog was not on the track condition list, just as "they" did In the once a arondr review of the track condition Get

A review of Claimants Rsyes' and Cwdova's discipline records shows Roy" In 1998 received a 30-day deferred suspension for running through a switch. The record also shows that in April 1999, he recslvsd a letter of commendation for his efforts and dedication to dully during Inclement weather. Nothing after the commendation until the 10-dsy record suspension assessed because of this Incident

Pig ND.ssso

Claimant Cordova hired out in June 198·, and the only blot on his file is this 10. day record suspension.

Of significance to this Board is that the "they" referred to by the Carrier witness was never identified. If they did review the track conditions Nat once a month, they are also guilty of overlooking the fact that from March 15 to June 2, the track was not listed as being out of service.

It Is this Board's opinion that after one year of good behavior the 10-day record suspension and this investigation should be erased from Claimants Reyes' and Cordova's files.

MW