BROTHERHOOD OF MAINTENANCE OF WAY
 EMPLOYES DIVISION - IBT RAIL CONFERENCE
Vs

 BNSF RAILWAY COMPANY


STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:









FINDINGS:
Public 1.aw Board No. ?(48, upon the whole record and all the evidence, fnds and olds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board hues jurisdiction over the dispute herein: and that the parties try the dispute have participated in accordance to the Agreement that established the Board.

 ()n August 27, 2009, Claimant was directed to attend a formal Investigation can September 15. 2009, which was mutually postponed until September 30, 21109. concerning, in pertinent part the following charge:


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      if any, in connection with your alleged releasing of track authority while men and equipment were stilt foul of track, at MP 6.4 on KCT Railway, at approximately 1 43(I hours, August 24, 2009, causing damage to vehicle and equipment on the track."


()n October 25, 2009, Claimant was notified that he had been found guilty as charged and he was dismissed.

      It is the Organization's position that the Carrier erred in its dismissal of the Claimant. If

argued that the Claimant should have been working under the direct supervision of a Foreman or
 an Employee In Charge (EIf") as it is the Foreman's duties to see that each Flan is instructed
 in the proper procedures and duties that he is assigned to perform. It further argued there as a
 miscommunication between the Claimant and the Train Dispatcher wherein he gave up the
 wrong piece of track that his equipment was occupying. It asserted that the error as out of the
 norm as the Claimant had always been a safe eployee who performed his duties to the best of
 his ability. Lastly, it argued that the discipline issued was excessive in proportion to the
 allegations, even if the Carrier had proven their charges (which they slid not)- It concluded by
 requesting that the dismissal be rescinded and the claim be sustained as presented.

 It is the position of the Carrier that Claimant was dismissed due to violation of Maintenance of "tray Operating Rules l .1.2 - Alert and Attentive anal 6.3.1 - Main Track Authorization fir an incident of August 24, ?009, while flagging, causing major damage t« vehicle anti equipment ran the track and injury requiring an individual being carried to the hospital for treatment. It argued that on the elate of the incident Claimant was working as a Rules Qualified Flagger who was the cause of the accident that was a significant satiety violation. Furthermore, it argued that the Claimant admitted his guilt and the discipline was appropriate based upon the seriousness of the charges. It closed by asking that the discipline not he disturbed.

 The Board has thoroughly reviewed the transcript and record of evidence and determined that the Investigation was held in compliance with Rule l 2Ia) the Discipline Rule and Appendix No. l l , therefore, the claim will be resolved on its merit:.

 The facts indicate that the Claimant obtained two track authorities. Track and Time 6'?? and #626. Authority 46?2 allowed the Claimant and tbur contractors to work between Signal 821, and the 683 Switch. Authority #626 overlapped anti authorized work between the 687 Switch and Signal 62RA.

 On August 24th, around 2:fl0 p.m., the Claimant and the contractors were working a little wrest of the 687 Switch. The Dispatcher called the Claimant and requested him to give up the authority granted by Track and Time #622. The record reveals that the Claimant told the
                                  P.L.B. No. 7048

                                  Award No. 49, Case No. 49

                                  Page


Dispatcher he needed ten minutes to load up anti get west of the 683 Switch. At that time Dispatcher advised the Claimant that he still had Authority ##fr?6 which authorized him up to clearance point of the 687 Switch. Shortly, thereafter. Claimant advised the Dispatcher the crew vas in the clear and he released Authority ##622, unfortunately, men and equipment were sitting can the track can the east side of the 687Switch.

 Subsequently, an eastbound train traveling. along the Main 3 track crossed over from Main 3 try Main 4 using the 687 Switch. Claimant saw the approaching train and warned the. work crew to get out of the vehicles after which there was a collision resulting in substantial damage to the MOW equipment anti injury to cane of the contractors who jumped from the high rail dump truck that was on the rail prior to actual impact. On page 7!6 of the Transcript the; Claimant was questioned as follows:

        "Q ...Whose responsibility is it to make sure that they're giving up the proper track and tithe limits so that men and equipment are not afoul of the track of the live track''


      A it, it's the Flagman's job.


      Q And the Flagan that was yourself, correct, sir.'


      A That's correct."


In the aforementioned testimony Claimant agreed that it was his responsibility to make sure that the crew was not afoul of°a live track and he further testified anti admitted tar his wilt on page 83 of the Transcript. It is clear that substantial evidence was adduced at the Investigation that the Carrier met its burden of proof that Claimant was guilty as charged.

 `f'he only issue remaining is whether the discipline assessed was appropriate. At the time ofthe instant dispute the: Claimant had 30 years of service with a disciplinary record that included a prior dismissal for an altercation on company property and a suspension account of a positive random drug screening test. The Board is always reluctant to dismiss a long term employee, however. the Carrier's Policy far Employee Performance Accountability (PEPA), appendix ` states that a single aggravated offense is grounds for dismissal when there is a "rule violation that results in serious collision and/or derailment, serious injury, fatality or extensive damage to company or public property." (Underlining Boards emphasis) and to do otherwise in this instance would be an exercise, in leniency which is not within our discretion. 'l"he Board finds and holds that the dismissal for this very serious offense was consistent and
 P.L.B. No. 71148
 Award No. 49, Case No. 4'9
 Page 4

 appropriate with PEI'A, therefore. it will not k- rescinded because it was not arbitrary, excessive car capricious.

 CIaim denied.

 AWARD
William R. Miller. Chairman & Neutral Member

 ~;amantha Rogers. t',arrmr ember

 Award Date:

 David I). Tanner, Employee Member