BROTHERHOOD <)F MAINTENANCE OF WAY
 EMPLOYES DIVISION - HIT RAIL CONFERENCE

 vs

 BNSF RAILWAY COMPANY

STATEMENT (?F CLAIM:








FINDINGS:

 Public Law Board No. 7048, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; anti, 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.

10, which was mutually postponed until March 9, 2(i l (l. concerning; in pertinent part the

 following charge:




      Maintenance of Way Operating Rules effective December 2, 2009, as supplemented or amended, concerning your alleged use of RNSF property for personal use on or about the week of January 18-.24, 2010."


No discipline was issued to Claimants B. J. Cake and R. K. Morris. but on April 1. 2010, Claimant W. J. Arend was notified that he had been found guilty as charged and was issued a Level S 30-Day Record Suspension and assigned a probation period of one year.

      It is the Organization's position that the Carrier erred in disciplining Claimant Trend for

multiple reasons. The first being that the discipline was untimely, it alleged in its appeal letter of
 July 12, 2010, that it had previously advised the Carrier on June I st that it and the Claimants had
 not received any discipline letters car a copy of the transcript thus any decision after that date
 would be untimely. It further argued that Claimant Arend was denied a fair and impartial
 hearing because of the multiple roles played by the Division Engineer who was the Charging
 Officer, key witness against the Claimant and the Ofcer who found the Claimant guilty and
 assessed the discipline. Additionally, it asserted that the alleged violation committed by the
 Claimant occurred while he was an Exempt Carrier Official which the Carrier disciplined him fir
 on February 10, 2010, when it removed him from that position. According to the Organization
 the Carrier then improperly chose to discipline him a second time for the same alleged violation
 after he had exercised his seniority back to the craft. It closed by requesting that the discipline
 be rescinded and the claim be sustained as presented.

 It is the position of the Carrier that the Claimants were given a fair and impartial Investigation because the Investigation Notice was issued within the required time limits and contained enough information concerning the alleged violation for the Claimants and their representatives to prepare a defense. It further argued that the Investigation cuss held in a timely manner and the discipline was issued within an appropriate time period with copies of the transcript forwarded to the Organization and the Claimants. Lastly, it argued that the record was clear that Claimant Arend was guilty as charged. It concluded the discipline was proper and it asked that it not be disturbed.

 The Board has thoroughly reviewed the transcript and record of evidence and has determined that we must address the Organization's various procedural arguments. The Organization first alleged that the Carrier did not issue timely decisions to the various Claimants. It was not refuted that Claimant Morris signed for his decision letter on March 29, 2010, Claimant Cake signed for his letter on April ft, 2010, and Claimant Arend signed for his on April 1 °7. ?010. Rule 13(a) of the Agreement states: "Decisions on investigations will be rendered as promptly as possible." The record is clear that each Claimant signed for their respective certified letters within a reasonable period after the conclusion of the Hearing, therefore. the Board finds no merit to the Organization's argument that the decisions were untimely. The Organization next argued that because of the multiple roles played by Division Engineer D.
                                  P.L.B. No. 7048

                                  .ward No. 58, Case No. 58

                                  Page 3


Johnson in the investigation process and Hearing Claimant Arend was denied a fair and impartial Hearing. Review of the record indicates that Division Engineer Johnson by letter of February 12, 2010, removed Claimant Arend from his Exempt Carrier Officer position for alleged misuse of company assets for personal use. Subsequently, he issued the Notice of Investigation regarding; the same incident, was a prosecution witness and the trier of facts who reviewed his own testimony. Awards 30 and SS of this Board addressed similar issues and in Award 30 it was stated in pertinent part:

          "The issue of Hearing and Charging Officer's improperly holding multiple

      roles in formal Investigation process has been the subject of countless Awards and

      authority can be found on both sides of several issues raised in the instant case.

      Consistent with the reasoning expressed in Third Division Award No. 31774 we

      rind no language in the parties Agreement which prohibits the officer who initially

      rendered the discipline prior to the Investigation from issuing the same after the

      Hearing. However, in this instance there is an additional element, as that same

      officer was also a witness azainst the Claimant. In Third Division .Award No. 24476

      the Board discussed the multiplicity of roles that can be held by a Hearing Officer

      and it stated in pertinent part the following:


          "...We do took askance, however, when the same hearing officer also serves as a witness since this very action pointedly destroys the credibility of the due process system..."


      We believe that same reasoning applies in this dispute as well. The Agreement guarantees the employee a right to "due process". That right was not afforded the Claimant because the decision maker assumed the role of iudtinz witnesses credibility including his own. On its very face the process was fundamentally flawed and unfair and could have easily been corrected by having someone other than one of the witnesses against the Claimant act as the judging officer. Therefore, the Board rinds and holds that the discipline must be set aside without even addressing the merits." (Underlining Board's emphasis)


In the present dispute the Division Engineer removed the Claimant from his exempt position after which he issued charges for the same offense. He then proceeded to be a prosecution witness and the decision maker who judged witnesses credibility including his own. As stated in the aforementioned Awards that process was not fair and could have easily been avoided and remedied by having the Hearing Officer render the decision as he was in the best position to judge credibility. That rational applies equally in this instance, therefore, the Board finds and holds that the discipline of Claimant Arend must be set aside without addressing the
 P.L.13. No. ?!)48
 Award No. 58, Case No. 58
 Page 4

 merits, however, the Claimant is not due any monies as he lost no wages. The Claimant"s disciplinary status reverts to that he held prior to April I, 2010.

 .AWARD
Claim sustained in accordance with the Findings and the Carrier is directed to make the Award effective on car before 30 days following the date the .toward was signed by the parties.

          William R. Miller, C:hairtnan k. Neutral Member


Sarnantha Itogers, Car i~c' ^ emir
              t


Award Date:

 David D. Tanner, Employee Member