BROTHERHOOD OF MAINTENANCE OF WAY
 EMPLOYES DIVISION - HIT RAIL CONFERENCE

 vs

 BNSF RAILWAY COMPANY



STATEMENT OF CLAIM:









FINDINGS:

 Public Law Board No. 7048, upon the whole record and ail the evidence, rinds and holds that Employee and Carrier are employee arid carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has .jurisdiction over the dispute herein; and that the parties to the dispute hove participated in accordance to the Agreement that established the Board.

 On April 15, 2010. Claimant was direected to attend a formal Investigation can April 26, ?(110, which was mutually postponed until May I 1, 2010. concerning; in pertinent part the following charge:
No. 7048
Award No. 59, Case No. 59
 Page 2
wheel when the boom and outriggers were deployed on g rapple truck, MP 3132.3,
Panhandle Subdivision, at approximately 1020 assigned as grapple truck operator.
T his investigation will determine possible violation of !I 15.5 vehicles Equipped With Cranes."
hours on April 12, 2010, while
On May 27. ?0I0, Claimant was notified that he had been t'aund guilty as charged and was assessed a Level S 30 Day Record Suspension with a one year probationary period.

 The Carrier alleged that the Claimant violated II 15.5 Vehicles Equipped With Cranes which states in pertinent part the following:

It is the Organization's position that on April 12, 2010, the Claimant placed the saver on the steering wheel before he deployed the boom and outriggers, but either the wind and/or vibration of the motor caused the saver to he dislodged pram the steering wheel while he was working. When it was brought to his attention that the saver was not on the steering wheel he immediately found it and placed it back as the Kale prescribes. 'Me Organization argued that this is a common occurrence which has been recognized by the parties and documented in a video which shawl a steering; wheel cover being vibrated aff the steering; wheat while a truck was sitting; still and the afar idling, therefore, it concluded that the Carrier did not meet its burden of praafand it requested that the discipline rescinded and the claim be sustained as presented.

 It is the position of the Carrier the Claimant violated the aforementioned Engineering Instruction ( II) on April 12th because he had the boom and outriggers on his Grapple Truck deployed without the saver being placed on the: steering wheel. The cover indicated to anyone that would walk up not to operate the truck due to the Claimant working and to remind the Claimant ante he was finished to stag the boom. It argued that it is extremely important that the saver is used to provide protection to all employees and due to the seriousness of a boom being misused without the saver the Claimant and others were subjected to potential harm. It asserted that Signal Supervisor S. Phillips and Itaadrna2ter M. Crowe witnessed the violation and there can be doubt of the (.`Iaiant"s guilt. It closed by asking that the discipline not be disturbed.



The Board has thoroughly reviewed the transcript and record of evidence and determined that the Investigation was held in compliance with Rule la(a) the Discipline Rule and Appendix N«. 11, therefore, the claim will he resolved can its merits.

 During the Investigation the Claimant set forth two possible scenarios as to why the cover was not can the steering wheel. He testified that either the wind and/or vibration of the motor caused the cover to be dislodged. I le asserted that the door to the cab had opened while he was working above in the crows nest operating the boom and the wind may have blown through the open door or windows and removed the cover tar the movement of the machine may have been the cause.

 On pages 9 and I (l of the Transcript, Signal Supervisor Phillips was questioned about the incident and what the Claimant told him on April 12, 2010, as follows:

      ".Jeffery Soukup: Did you, did you stop Mr. Alonso from operating that boom once


    you noticed that his steering wheel cover was off"Stephen Phillips: Yes, we did. We went to Mr. Alonso to stop, stop the boom operation. Got hire down, you know, to stop, stop work, and we talked about the steering wheel cover, and you know, the fact that it wasn't on there.


      .Jeffery Soukup: Did he tell you why he didn't have it on?


      Stephen Phillips: If I remember correctly, he told me that he had just forgot to rout it on.


      .Jeffery Soukup: Was there any adverse weather conditions that day?


      Stephen Phillips: No, sir.


    .Jeffery Soukup: Could the wind have come into play and prevented him from keeping that on the steering wheel?


    Stephen Phillips: The, both doors were shut, and the windows were up. So, no, I don't believe wind could have had anything to do with it: (Underlinir~g Board's emphavis)


<>n pages l and 15 of the Transcript, Roadmaster M. Crowe was questioned abut the incident as well and he testified as follows:
                                  P.I,.B. No. 7048

                                  Award No. 59, Case No. 59

                                  Page


      ".Jeffery Soukup: Was there any adverse weather that day?


      Mark Crowe: No, just s regular day in Oklahoma. Wind might have been blowing a little bit, but it wasn't bad.


      .Jeffery Soukup: Were both doors closed on his, is grapple truck`?'


      Mark Crowe: Yes.


      .Jeffery Soukup: Were both windows up?


      Mark Crowe: Yes.


      .Jeffery Soukup: A little bit? Do you see any way the wind could have blown the steering wheel cover off"?"


      Mark Crowe: No. (Underlining Bixard'v emphasis)


The testimony above, of the two Carrier Officers, confirmed that the doors and windows to the cab on the grapple truck were closed. Additionally, Phillips testified that the Claimant initially told him he forgot to put the cover on the steering wheel and it was not until two car three days later that he told him that he thought the wind had blown the cover ofd: Claimant's recollection of the incident was different, as he testified on page 26 of the Transcript that he did not tell Supervisor Phillips he forgot to put the steering wheel cover on. Claimant further testified on pages 24 and 25 of the Transcript that the windows and door were open.

 Review of the entire transcript reveals that Witnesses Phillips and Crowe's testimony was consistent and there were no reasons offered as to why they would not be forthright whereas careful examination of the Claimant's testimony indicates it was based upon selective memory. The suggestion that motor vibration might have been the cause as to why the cover was not on the steering wheel does not :gym plausible in this instance because of the testimony offered by Phillips concerning what he stated the Claimant told him on April 12th as to why the cover was not in place. Substantial evidence was adduced at the Investigation that the cover was not on the steering wheel and Claimant violated El 15.5.

 The only issue remaining is whether the discipline was appropriate. At the time of the incident the Claimant had approximately t 1 years of service with a good work record. However, not having the cover on the steering wheel while the boom and outriggers was deployed is a serious offense account of the potential danger to employees and machinery. Therefore, because the discipline did neat result in any actual time ofd' and was in accordance with the Carrier's Policy
 P. G.B. No

 Award No. 59, Case No. 59
 Page ,-5

 tar Employee Performance Accountability (PEPA), the Board finds and holds it wit! not be rescinded as it was not arbitrary, excessive or capricious.

 ,AWARD
Claim denied.

 William IZ. Miller, Chairman & Neutral Member

 Samantha Rogers. Came r~M~mt~r David D. "1'anrters Employee Member

 Award Date: