Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD

THIRD DIVISION

Award No. 43498 Docket No. SG-44664 19-3-NRAB-00003-180057

The Third Division consisted of the regular members and in addition Referee Kathryn A. VanDagens when the award was rendered.

(Brotherhood of Railroad Signalmen PARTIES TO DISPUTE: (

(BNSF Railway Company

STATEMENT OF CLAIM:

Claim on behalf of the General Committee of the Brotherhood of Railroad Signalmen on the BNSF Railway Company:

Claim on behalf of T.M. Neal, for reinstatement to service with compensation for all time lost, including overtime pay, with all rights and benefits unimpaired, and with any mention of this matter removed from his personal record, account Carrier violated the current Signalmen's Agreement, particularly Rule 54, when it issued the harsh and excessive discipline of dismissal against the Claimant, without providing a fair and impartial Investigation and without meeting its burden of proving the charges in connection with an Investigation held on March 16, 2017. Carrier's File No. 35-17-0014. General Chairman's File No. 17-024BNSF-119-D. BRS File Case No. 15796-BNSF.

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.

At the time of his dismissal, Claimant was assigned to a CTC Signal Maintainer position, headquartered out of Bridgeport, Nebraska. On February 24, 2017, the Claimant was given notice of an Investigation in connection with the following charge:

"An investigation has been scheduledfor the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged failure to comply with the BNSF Rules on use of Electronic Devices, using a hand-held device while operating BNSF vehicle 19157, according to DriveCam Event ESKR12849, at 1123 CST, on February 22, 2017, at/or near 9603 Main Street, Bridgeport, NE, while assigned as a CTC Maintainer on SMTR0499. . ."

After a formal investigation on March 16, 2017, Claimant was found to be in violation of MWOR 1.10 Games, Reading, or Electronic Devices and was dismissed from the Carrier's service.

On February 22, 2017, while driving the Carrier's vehicle, the Claimant drove over a rough and uneven surface. Doing so triggered the DriveCam and the Claimant was recorded with his cell phone next to his ear while the vehicle was in motion. At the Investigation, the Claimant admitted that he is seen on his cell phone and that he is using it in other than hands-free mode.

The Board sits as an appellate forum in discipline cases. As such, it does not weigh the evidence de novo. Thus, it is not our function to substitute our judgment for the Carrier's judgment and decide the matter according to what we might have done had the decision been ours. Rather, our inquiry is whether substantial evidence exists to sustain the finding against the Claimant. If the question is decided in the affirmative, we are not warranted in disturbing the penalty absent a showing that the Carrier's actions were an abuse of discretion.

The Claimant admitted his violations during the investigation on property. Where there is an admission of guilt, there is no need for further proof. This Board finds that sufficient evidence exists to support the findings against the Claimant. With respect to the disciplinary penalty, the Board finds that the Claimant's prior disciplinary record is an aggravating, rather than mitigating, factor. This Board has reviewed the procedural arguments raised by the Organization, and we find them to be without merit. The Claim is denied.

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 1st day of March 2019.