(Brotherhood of Maintenance of Way Employes PARTIES TO QfSPUTE_:__

ST~,FMFNT OF Q1,AjM:

      1. That the Carrier's decision to assessed (sic) an entry of censure onto

          the record for Southern Region, E. J. Morgan was unjust.


      2. That the Carrier now rescind their decision and expunge ail discipline,

          and transcripts and pay for all wage loss as a result of an Investigation

          held 11:40 a.m. June 2, 1998 continuing forward andlor otherwise made

          whole, because the Carrier did not introduce-substantial, credible

          evidence that proved that the Claimant violated~he rules enumerated in

          their decision, and even if the Claimant violated the rules enumerated in

          the decision, the discipline is extreme and harsh under the circum

          stances.


      3. That the Carrier violated the Agreement particularly but not limited to

Rule 13 and Appendix 11, because the Carrier did not introduce sub
 stantial, credible evidence that proved the Claimant violated the rules
 enumerated in their decision.
 FINDINGS
 Upon the whole record and all 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 thereon.
 Claimant is an experienced veteran Foreman who, as of the date of the Incident, was the Foreman on a rail laying gang.
 On the day of the incident; a track warrant was secured by the Roadmaster assigned to work with the gang, although the name on the warrant was Clalmant's. Apparently this is a frequent occurrence with this gang. In fact, Claimant testified that he sometimes secures the track warrant but only when he has a track profile in hand and can communicate
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                                                Case No. 83


intelligently with the Dispatcher.

Claimant was charged with failure to place a red flag at a point where a foreign train would enter the track protected by the warrant. Red boards, however, are required in Form B territory only when employees and machinery are fouling the track, or when the track is out of service because of changing rail or ties.

To this Board, after reviewing the transcript, the entire subject is confusing and not clear, The only thing established was that there was no red flag at the point the foreign train would enter Carrier's tracks, but then the Claimant testified that such foreign train entering the Form B protected territory would see the red board protecting the crew. This was never denied by the Carrier.

A review of the Rules cited by the Carrier alleged to have been violated by Claimant, does not reflect that Claimant was in violation of either Rule. The Carrier witness stated Claimant violated the Rule "because he didn't have an effective route flag." There is no reference to Intersecting tracks, nor an "effective route flag" in either Rule other than that portion of 5.4.8 referencing an intersecting track within the two mile zone of the red-ysllow board and the warrant's parameters.

Furthermore, Claimant was In territory new to him, The Roadmaster who set the disciplinary machinery In motion, in whose territory Claimant's crew was working, attended the morning safety briefing conducted by Claimant. This Roadmaster knew the parameters of the track warrant. Rather than waiting for Claimant to ask questions about the territory, he could have cautioned Claimant about the intersecting track, or at least furnished Claimant a track profile.


      The Carrier failed to furnish substantial evidence of the Claimant's culpability for the

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Award No. 93

Case No, 83


Page 3

 charges assessed, The record mark is to be removed from his work record, and if he lost any time because of this Incident, he Is to be paid in accordance with the practice on the property,

 Claim sustained.

                          ORDER

This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Ciaimant(s) be made, The Carrier is ordered to make the award effective on or before 30 days following the date the award is adopted.

 Robert L, Hicks, Chairman & Neutrxl Member

 Rick 8.`Wehrli, Labor Member

 Dated: (p~7~r/~;

 Y omas M. Rohl(ng, Carrie ember