BROTHERHOOD OF MAINTENANCE C?F WAY
 EMPLOYES DIVISION - IBT RAIL CONFERENCE

 vs

 BNSF RAILWAY COMPANY




STATEMENT OF CLAIM:











FINDINGS:
Public Law Board No. 7048, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act as amended; and that the Board has jurisdiction over the dispute herein; and that the parties to the dispute have participated in accordance to the Agreement that established the Board.

 On June 4, 2010, Claimant was directed to attend a formal Investigation on June 14, 2010, concerning in pertinent part the following charge:
P.L.B. No. 7048
 Award No. 109, Case No. 109
 Page 2


On August 12, 2010, Claimant was notified that he had been found guilty as charged and was assessed a Level S 30-Day Record Suspension with a one year probationary period.


It is the Organization's position that contrary to the assertions of the

 everything

was handled properly by the Claimant regarding this incident. A defect was found, and proper protection was provided and the condition was repaired in accordance with normal practices. It pointed out that prior to the defects being found Claimant had been on vacation for the prior two weeks. During the last week of May, and the week before these defects were found, the Carrier's key witness Roadmaster Mooney made a fly-Rail trip across those locations and found nothing. It concluded by requesting that the discipline be rescinded and the claim sustained as presented.


It is the position of the Carrier the Federal Railroad Administration (FIZA) was inspecting the Carrier's track on Jane 2, 2010, when their representative found multiple violations. It argued that it was determined through testimony that the Claimant was working as a Track Supervisor the day before, on June I, 2010, mid had hyrailed over the track and inspected it at the locations where the violations were found. It asserted the Claimant did not observe those defects through his inspection and lie did not report any defects to his Roadmaster nor did he put the required slow orders out lowering train speeds to 10 mph to protect the track under his supervision. It reasoned that was a serious violation and the discipline assessed was appropriate and it closed by asking that the discipline not be disturbed and the claim remain denied.


The Board has thoroughly reviewed the transcript and record of evidence and it is determined that the Investigation arid appeal process met the guidelines of Rule 13(a) the Discipline Rule and Appendix No. 11.


The facts indicate that during an FItA Inspection, Carrier Roadmaster Mooney found a deviation that was (2/16) or (ll8) of an inch out of compliance after which he contacted tire Claimant who placed a slow order in accordance to FRA Guidelines Rule El 2.2.3.


`testimony by Supervisor Mooney further showed that the measurements taken were static measurements wherein no compensation for loaded cars moving over the track were taken into consideration. The Organization asserted that means that under load the locations covered by the charges could have been in compliance. On page 21 «f the transcript Mooney testified





that it was possible that under load the track could have been in compliance. fie was further questioned on the same page about measuring tracks without being under load as follows:

    "Gary Marquart: And I believe you have a gage in your office that you guys use to measure, to simulate a load. Is that correct?


    David N. Mooney: Uh, not for guard check, but for a standard gage, yes sir.


      Gary Marquart: Okay, could you use it for guard check or anything`.'


      David N. Mooney: Well, you might could. I never have tried it for guard checking.


    Gary Marquart: Okay, would, would that not Give -you a more accurate measurement than iust a static measurement?


    David N. Mooney: If there's, uh, if there's defective, uh, track components it would." (Underlining Board's emphasis)


(fin pages 19 - 26 of the transcript Roadmaster Mooney testified that he was not aware of how many trains might have traversed across the territory in question since the Claimant's last actual walking inspection and any movement in the tracks and/or switches is largely due to train traffic coupled with weather conditions (heat and cold). On page 27 he further testified that the FRA Inspector did not take into account movement under load. On page 28 he was questioned as follows:

    "Tommy Brazier: t have one more question for Mr. Mooney. Mr. Mooney, normally when you're taking measurements of track loc-, at locations that are static and then when you add the consideration based on those measurements of the track being under load, would those measurements normally be more or less than what you have when you measure those locations static.


    David N. Mooney: Normally more. (Underlining Board'.s emphasis)


After Mr. Mooney testified that the measurements would be more under load he reversed himself on pages 28 and 29 as follows:

    "Tommy Brazier: Based on those measurements that the presumption in adding the factors in of these locations being under load, would those measurements, would have been more, creating, uh, making defect areater`I


    David N. Mooney: No." (Underlining Bard's emphasis)


1
                                P.L.B. No. 7048

                                Award No. 109, Case No. 109

                                Page 4


Testimony of Supervisor Mooney was contradictory at times, but despite that fact it was not refuted that track deviations were found, however, the Board is not persuaded that the Claimant failed to adhere to his duties or that deviations discovered were not the result of train traffic movement and/or conditional changes after his last check of the territory, therefore, it is determined that the Carrier did not meet its burden of proof.


The Board finds and holds that the discipline is rescinded and removed from the C'laimant's disciplinary record and the Claim is sustained as presented. Claimant is returned to his prior disciplinary status in accordance with the Carrier's Policy for Employee Performance Accountability (PFPA).


Claim sustained in accordance with the Findings and the Carrier is directed to make the Award effective on or before 3(? clays following the date the Award was signed by the parties.


        William Miller, Chairman & Neutral Member


Samantha Rogers, Carrier fiber David D. Tanner, Employee Member

 Award late: 2 = .... ___