(Brotherhood of Maintenante of Way Employes PARTIES-TO, DISPUTE: (The Burlington Northern Santa Fe Railroad (Former (ATSF Railway Company) §TATEMENT QF GLAIM:
    1. The Carrier violated the Agreement on November 30, 2007 when

        Claimants, D.R. Vinson (60187Tj and O.C. Fllyaw (6"9374) were

        each assessed a Level S 30-Day Record Suspension for allegedly

        failing to detect and protect the track from excessively worn switch

        point in accordance with BNSF Engineering Instructions. The

        alleged conduct resulted in a train derailment at Mite Post 43,0 near

        Arcola, Texas on the Galveston Subdivision, and;


    2. As a consequence of the violation referred to in part 1 the Carrier

should reinstate the Claimants with all seniority, vacation, rights
 unimpaired and pay for alt wage loss commencing November 30,
 2007, and remove any mention of discipline from their records.
 FINDINGS

Upon the whole record and ail the evidence, the Board finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, as amended: Further, the Board Is duly constituted by Agreement, has jurisdiction of the Parties and of the subject matter, and the Parties to this dispute were given due notice of the hearing therwn,


On October 14, 2007, the Carrier experienced a derailment causing about $2'7'5,000 in damages. to investigating tire derailment, the inspectors took a close look at the switch which the train passed (partially passed). It was their belief that tine derailment was caused by a switch point that deteriorated to the point that it should have been replaced.

Pare PLB NO. 5850
 x Award No.
                                        Case No. 329


it developed that the Track Inspectors, when they Inspected the switch (which already had been protected by a 10 MPH slow order), that it should have been immediately replaced. The worn condition art the switch point did cause the Inspector to call his Supervisor and advise the replacement (or repair) of the switch should be placed In line to be worked art far Monday, October tv, 2007. Unfortunately, the derailment occurred on Sunday, October "14, 2007.

    The Carrier then slated an Investigation far the purpose:


    "...of aacerfining the facts and determining your raspomsibINIA if any,

    regarding your alleged failure to properly detect and protect and

    excessively worn switch point in accordance with BNSP Engineering

    instructions on October 1l-13, 2007, while conducting track Inspections,

    which resulted in a train derailment at Mile Post 43.8 located near Arcola,

    Texas on the Galveston Subdivision on October 14, 2007 at approximately


    0480 hours, resulting In total damages at over $x75,000."

Following the Investigation, a hearing was held on November B, 2007, after a mutual postponement, The Carrier assessed each Claimant a Level S 30-day record suspension (no actual time lost, just an entry In each Claimant's disciplinary file).

Each Claimant is a veteran employee, both hired out In 4984; one In June and the other in August. Each kept an eye on the condition of the switch and testified the switch paint met the minimum measurements.

A review of the transcript reveals much discussion concoming the technology In the use of the Geismar wear tool to determine far certainly the measurement of the (twitch point. It also developed the switch point wage broken. Note the following tram Page 1$ of the transcript- the Cialmanfro Representative was questioning a Carrier witness:


    "Q . ...In previous testimony you rotated that theca was a portion of the switch point that wars broken out, correct?

page 3 PLB NO. 5850 Award No.
                                        Case No. 329


    A. After the derailment when I hooked at it.


    Q. Okay, so its possible, with the four trains going over It and this

    being the fifth train, it could have broke out under any one! of these trains?


    A. That's possible, yes sir."


    Earlier, the Claimant's Representative elicited testimony from the same Carrier


witness that the switch point was broken. (CR Is Carrier Representative. CW Is Carrier

 Witnesas):

    "CR: You also stud that the switch paint was broken, is that correct?


        CW: Yes.


        Cot: So it wasn't just worn, it actually broke out?


        CW: There were fresh chips on tire ground, yes air.


    CR: So the chips, you said there went fresh chips on the ground, so these chips show of tt, just a recent break, correct?


        CW: Yes, of n yeah, fresh...


        CR: A frosh break?


    CW: !tights. Of something that was already within tolerance maybe broken; who knows.


    CR: Okay. So there's no way that you know If it had broken, there's no way to tell whet It broke, torroc"


        CW: That's right.


        CR: But It was broken?


        CW: It was broken, yes air."


    The burden of proof in disciplinary cases rests squarely on the shoulders of the


Carrier. There must be sufficient evidence. The main charge was negligence. This
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 PLB NO.

 Award No.
 Gala No. 32$

 hoard cannot find evidence that totals out to be significant The total experience of the Claimants Js 27 years each a$ o! the data cat the derailment. hatch wits aware of the erosion of the switch paint and on Thursday believed it should be repaired or replaced. It was thorn put on the work schedule for Monday, October ill. Unfortunately, Me derailment occurred on the 14"'.
                      For lack of sufficient evidence, the Board will sustain the claim. A ARD

    Claim sustained fn accordance with the Findings.


                      C?RDIrR

Thin Board, after consideration o_ the dispute tdentified above, hereby orders that an award favorable to the Clalmanf(s) be made. The Carrier Is ordered to make the aware! effective on or before 30 days. following they date the award is adopted.

 Robert L. Hicks, Chairman & Neutral Momber

 David D. Wanner, I=or the Employees

 Samantha Ro$ara, For they. inter