BROTHERHOOD OF MAINTENANCE OF WAY
 EMPLOYES DIVISION - IlllrT RAIL CONFERENCE

 vs

 BNSF RAILWAY COMPANY



"Claim of the System Comittee of the Brotherhood that:







FINDINGS:
Public Law Board No. 7048. upon the, whale record and all the evidence, finds and holds that /ploy:. and Carrier are employee and carrier within the: meaning of the Railway Labor Act, 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 22. 2009. Claimant vas directed to attend a formal Investigation on July 7, ?009. concerning in pertinent part the fi)ll«wlng charge:
P.1,.B. No. 7048
 Award No. 46. Case No. 46
 Page 2

On August 7, 2009, Claimant was notified that he had been found guilty as charged and he was dismissed.
argued that procedurally the Carrier violated Rule: 13(e) w°hen it failed to provide the Claimant
 and Organization a copy of the stenographic report of the Investigation as that showed that the
 Carrier had pre-determined the outcome of its decision and an that basis alone the discipline.
 should be set aside. Additionally, it argued that the Carrier did not meet its burden of proof; that
 Claimant violated the alleged charges. Laast, but not least it argued that even if the Carrier could
 produce evidence to support their charges (which they did not) the discipline is excessive in
 proportion to the allegation. It concluded by requesting that the dismissal be rescinded and the
 claim he sustained as presented.

 It is the: position of the Carrier that it did not violate Rule I3(e) as the records indicate that it sent the Organization and the Claimant a copy of the transcript. It argued that the Carrier provided the Organization a copy of the envelope sent to the Claimant, which he did not pick. up and a e-mail from Division Engineer Jacobson which affirmed that the Organization was sent a copy, plus it furnished the Organization with another copy when requested.

 On the merits the Carrier argued that the record substantiates that the Claimant reported that he traversed 113.6 miles of track and certified that he had inspected the track which was a

 report to a government entity (FRA) as the company truck assigned to him was not used on

 May 23 or 24, 2009, nor did he attain any track time to accomplish such work. It additionally argued, that there, was no proof that the Claimant was called for overtime on May 24th which was a false pay record. It concluded that based upon the seriousness of the charges dismissal was appropriate anti it asked that the discipline not be disturbed.

 The Board has thoroughly reviewed the record and will first address the Organization's procedural argument that it and the Claimant were not provided copies of the transcript. When the Carrier was challenged with that assertion it responded with a statement of November 2. 2009, from G. Jacobson, Division Engineer wherein he stated:

 "Here is a copy of the transcript envelope sent to Mr. Romero. It was returned,
 P.L.B. No.

 Award No. 46, Case No. 46
 Page 3
due to him not picking his up. The Organization was mailed their copy at the same time.'!
Review of the aforementioned envelope reveals that it was tent RETURN RECEIPT REQiJES'iTI3 to the Claimant and the reason it was not received was because it was unclaimed In view «f the fact that there ix clear evidence that the transcript was sent to the Claimant in a timely manner and a statement from the Di v ision Manager that it was alms sent to the Organization we arc persuaded that the Carrier met its obligation to fuisla the parties copies of the transcript. Additionally, it is noted that them was no showing that the Organization was hindered in its appeal as it did an admirable job in behalf of the; Claimant. Lastly, we find that the Investigation was held in compliance with Rule l3(a) the Discipline Rule and Appendix No. l I. therefore. the claim will be resolved on its ments.

 The facts indicate that the Claimant entered a track inspection report wherein it was alleged that he traversed 113 miles of territory can May 3 and 24~ 2009. The Claimant testified that he did not use the company truck on May 23 and instead used his personal vehicle and walked his inspection for a little aver four miles and cleaned the depot, however, that explanation does not explain why there was no movement of the hyrail truck can May 4th car how the reports entered by him showing that he was allegedly hy-railing 113 miles of territory. without any track and time could have been accomplished. Substantial evidence was offered at the Investigation that. I .) the truck assigned to the Claimant was not moved nn May 2and ?4. 2009, and 2,} the TIMS report filed by the Claimant to FRA showed that he hy-mailed can both days. Claimant's assertion would not have been possible as the evidence substantiated that he was not issued any track and time can either day to have hy-railed or that the hyrail vehicle was moved. It is clear that the Claimant entered a false track inspection report and there was no evidence offered to support the Claimant's allegation that he was needed to work three hours of overtime on May 24. 2009. It is abundantly clear that the substantial evidence was adduced at the Investigation that the Carrier met its burden of proof that Claimant was guilty as charged.

 The only issue remaining is whether the discipline assessed was proper. At the: time of the ot`fense the Claimant was a short term employee with a little aver two years of service who was guilty of two serious infraction including a dangerous and illegal act of stating inspection of track, with no actual inspection. The Board finds and holds that the dismissal of Claimant was roper because it was not excessive, arbitrary car capricious and a~.~ in accordance with the Carrier's Policy for Employee Performance Accountability (F'EPA 1.
 P.L.B. No. 7048
 Award No. 415, Case No. 46
 Page 4

 AWARD
Claim denied.

 William fit. Miller. Chairman & Neutral Member

 Samantha Rogers. Carrier tier

 Awrd Date: