Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 42373 Docket No. MW-42552 16-3-NRAB-00003-140210

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 ( Railroad Company)

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

(1) The discipline (dismissal) imposed upon Mr. D. Delorme by letter dated December 3, 2012, for alleged . . . for failure to operate the motor vehicle in a careful and safe manner, failure to drive defensively, failure to possess and carry a valid driver's license, failure to stop operating company vehicles and notify supervisor when license is suspended, failure to obey local, state and federal laws for operating vehicles, and failure to be alert and attentive, when you were involved in a vehicle incident with two parked vehicles while you were driving vehicle 17786, and driving with a suspended and expired driver's license, at approximately 2115 hours, October 30, 2012, at or near the 100 block of Elliott Avenue West, Seattle, Washington, while you were working as Sectionman (TFLX1408).' And '. . . in connection with alleged violations that occurred leading to a report of a vehicle incident involving vehicle 17786 and two private vehicles at approximately 2115 hours, October 30, 2012, at or near the 100 block of Elliott Avenue West, Seattle, Washington, and a report that you have been driving with an expired driver's license while you were working as Sectionman (TFLX1408). Alleged violations include but are not limited to failure to be alert and attentive, failure to operate the motor vehicle in a careful and safe manner, failure to possess and carry a valid driver's license, failure to obey local, state and federal laws for operating vehicles,

and failure to comply with BNSF Company Vehicle Policy.' was without just cause, excessive, on the basis of unproven charges and in violation of the Agreement (System File S-P-1681-G/11-130124 BNR).

(2) As a consequence of the violations referred to in Part (1) above, Claimant D. Delorme shall receive the remedy prescribed by the parties in Rule 40G."

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 30, 2012, the Claimant was driving a company truck in downtown Seattle when he stuck a parked car which then collided with another vehicle. When the police arrived, it was learned that the Claimant's driver's license had been suspended for unpaid citations. He was also cited by police for performing an illegal lane change. The Claimant was found to be in violation of Sections 7.B and 16 of the Vehicle Policy and Procedures Manual, MOWSR 12.1.1 and MOWOR 1.1.2 and 1.3.1. Because this was his second serious violation within a review period, he was dismissed.

It is the position of the Carrier the Claimant went around a parked car and pulled back into the right lane without realizing that the cars in front of him were parked. His license had expired 17 months prior. This was in violation of multiple BNSF rules and policies as well as the local and state laws. He was responsible for damage to a BNSF vehicle and two private cars. At the time of this serious infraction, he was under a review period for a prior serious rules violation. As a result, dismissal was proper.

The Organization argues the discipline was excessive to the extent of being an abuse of the discipline process. He was alert and attentive and tried to operate in a safe manner since he had to wait to go around the parked car. Having an accident does not establish that the driver was careless. The Claimant was unaware that his driver's license was not valid.

The Board finds Claimant was responsible for maintaining a valid driver's license. His failure to do so cannot be excused by ignorance of his status. Without a valid driver's license, he had no right to drive on the streets of Seattle. It is the Carrier's responsibility to ensure that only licensed drivers operate its vehicles on public streets. It was within the Carrier's rights to view this as a serious infraction. Further, the fact that he received a citation for the accident is substantial evidence that he was at fault, demonstrating a failure to be alert and attentive.

The Carrier's burden of proof for demonstrating a Level S offense has been met. Insofar as the Claimant was under a review period for a prior Level S infraction, his dismissal must be deemed proper.

AWARD

Claim denied.

ORDER

This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.

NATIONAL RAILROAD ADJUSTMENT BOARD By Order of Third Division

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