Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42362 Docket No. MW-42456 16-3-NRAB-00003-140039

The Third Division consisted of the regular members and in addition Referee Patricia T. Bittel when award was rendered.

(Brotherhood of Maintenance of Way Employes Division ( IBT Rail Conference

PARTIES TO DISPUTE: (

(BNSF Railway Company (former Burlington ( Northern Railroad Company)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The discipline (dismissal) imposed upon Bridge Inspector B.

Jackson by letter dated November 14, 2012 for his alleged violation of MOWOR 1.19 Care of Property and MOWOR 1.6 Conduct in connection with his alleged use of Company property for personal use on October 8, 2012 while assigned as a bridge inspector working on Montana Division South was excessive, without merit and in violation of the Agreement (System File C-13-D070-1/10-13-0129 BNR).

(2) As a consequence of the violation referred to in Part (1) above,

Claimant B. Jackson shall now '. . . be immediately returned to service in accordance with Rule 40 of the current Agreement with all lost wages and benefits restored.'"

FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute were given due notice of hearing thereon.

On October 8, 2012, BNSF employee W. Sutton witnessed BNSF vehicle 22978 traveling down the highway between Matisse and Thermopolis, WY, hauling a trailer without BNSF markings. He reported the incident. An investigation was held on October 18, 2012. The Claimant was found guilty of misuse of Company property in violation of MOWOR 1.19 Care of Property and MOWOR 1.6 Conduct. Since the Claimant was within a review period from a prior serious offense, he was dismissed.

It is the Carrier's position that the Claimant admitted using BNSF vehicle 22978 to pull his personal trailer. He claimed he did not know this was forbidden. The Carrier contends that ignorance of the Rules is not a proper defense.

The Organization claims there were egregious procedural violations in the hearing of this case. The discipline was issued by Mr. Cory Knutson who testified at the investigation hearing and provided every single exhibit against him. Knutson decided his own credibility, destroying the possibility of a fair and impartial hearing. It was established in PLB 7601 Award 38 that the chief accuser cannot be the final decision maker. The Arbitrator in that case found it so fundamentally unfair that the merits were not even addressed.

The Carrier declared the Claimant guilty of a rule that was never even mentioned during the investigation. Those two procedural violations alone mandate a finding for the Claimant. He was making the trip with or without the trailer. He pulled the trailer, but discipline clearly was excessive. He did not know he was violating a rule since he had seen other employees do this.

The procedural flaw of having a witness at the hearing decide and issue the discipline to be imposed is flagrant. The Carrier points out that there was no credibility decision to be made, hence the witness was not put into a position of deciding his own credibility. This argument, however, does not address the full panoply of problems with allowing a witness to decide the facts, to articulate the rule deemed violated and then to specify a penalty.

The Notice of Investigation in the instant case did not cite the exact rule(s) alleged to have been violated. In fact, the rule in question was only cited post hearing by Knutson. The nature of the identified violation(s) dictates the severity of the penalty. Furthermore, the possibility of discovering and considering any applicable mitigating circumstances is doubtful when a testifying witness is left responsible for case evaluation. Having testified as a witness in the case, C. Knutson clearly has an interest in the outcome. Such a person, by definition, cannot render an objective, impartial or fair view of the case. It follows that the procedural error in this matter constituted a denial of a fair and impartial hearing in violation of Rule 40 and must be deemed fatal to the Carrier's case.

The claim is sustained in full. The Claimant shall be offered reinstatement subject to the Carrier's return to service policies. The Carrier shall remove the discipline from the Claimant's record, with seniority, vacation and all other rights unimpaired and make him whole for all time lost as a result of this incident. Lost overtime shall be compensated at the overtime rate. His compensation shall be reduced by any interim earnings he may have had from outside employment. The Claimant shall be reimbursed for medical benefits to the extent that he provides the Carrier and the Organization with receipts of medical expenditures that would have been covered but for the lapse in his Health and Welfare Benefits. The Parties shall then jointly determine what co-pays, premiums and other medical costs would otherwise have been covered by his insurance had he continued in the Carrier's employ uninterrupted by dismissal. Any other claims to compensation not specifically granted in this award are hereby denied.

AWARD

Claim sustained.

ORDER

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

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

Dated at Chicago, Illinois, this 30th day of August 2016.