NATIONAL MEDIATION BOARD PUBLIC LAW BOARD NO. 7048 .·WARD NO 60, (Case No. 60)
BROTHERHOOD OF MAINTENANCE OF WAY
 E MPLOYES DIVISION - IBT RAIL CONFERENCE

 BNSF RAILWAY COMPANY

 STATEMENT OF CLAIM.-
FINDINGS:
William R. Miller, Chairman & Neutral Member
 Samantha Rogers, Carrier Member
 David C). Tanner. Employee Member

 "Claim of the System Committee of the Brotherhood that:

 1. The Carrier violated the Agreement commencing May 26, 2010, when Claimant, David J. Devitt (1343383), was issued a Level S 30-day Record Suspension with 3 years probation concerning his failure to comply with instructions on flay 5, 2010. The Carrier alleged violation of MOWOR 1.13 Reporting and Complying With Instructions.

 2. ,As consequence of the violation referred to in part I the Carrier
 shall reinstate the Claimant with all seniority, vacation, ail rights
 unimpaired and pay for all wage loss commencing May 26, 2(110,
 continuing forward and/or otherwise made whole."
 (Carrier File No. 14-10-0132) (Organization File No. 120-1311-103.CLM)

 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.

 On May 1(i, 21310, Claimant was directed to attend a fogy Investigation on May 18, 2010, which was mutely postponed until May 26, 21110, concerning in pertinent part the

 following

 ",..for the purpose of ascertaining the facts and determining your reesponsibiiity, if any, in connection with your alleged failure to comply with instructions we had discussed, when you let some gang members report for duty prior to 0800 hours



      on May 5, 2010 on the Orin Subdivision while working as Foreman on gang TRPX0005, temporarily headquartered at Gillette, Wyoming."


(fin June 22, 2010, Claimant was notified that he had been found guilty as charged and was assessed a Level S 30 Day Record Suspension with a three year probationary period.

 It is the Organization's position that the Investigation Notice was defective in that the Claimant was charged with having allowed gang members to report for duty prior to 0800 an May S, 2010. but when the Investigation was held it was clear that the I-Tearing was actually concerned with the date of May 6th. It further argued that the Investigation was set to to held at America's Best Value & Suites in Sidney, Nebraska, which was subsequently changed by telephonic conversation to America Inn in the same town. It asserted that the [fearing was unfair because of the incorrect information which denied the Claimant the opportunity to arrange witnesses in his behalf and it forced the Claimant and the Organization to scramble to relocate to a new blearing site and put together a proper defense against other charges. Can the merits the Organization argued that the Claimant instructed two of his employees to begin work at 0630 rather than 0800 on May 6th because they were driving two large slow trucks that had to travel ?44 miles to be at the new work site by 1200 Noon, thus it was necessary that they left earlier. It concluded by requesting that the discipline be rescinded and the claim lie sustained as presented.

 It is the position of the Carrier there were no procedural errors in the handling; of the Investigation. Regarding the change of location it was explained by the I(earing Officer at the beginning of the Investigation that several attempts were made to contact the Organization prior to the l fearing to ensure everyone arrived at the correct faction. Additionally, it pointed out that the change of location was 4.6 miles from the original location. With respect to the argument that the Carrier had the wrong date for the alleged incident the Carrier argued that Claimant's testimony on page 49 of the rhranscript makes it clear that the Claimant understood the Investigation was for the purpose of determining whether or not on May 6, 2010, he followed the instructions given him by his Supervisor on May 5th. Turning to the merits, the Carrier argued that the Claimant was given instructions on May 5th that his entire gang was not to leave the motel before 080 on May kith to travel to 'forrington, Wyoming, (the new work site) and he did not follow those instructions. It closed by asking that the discipline not be disturbed.

 The Board has thoroughly reviewed the script and record of evidence and has determined that we must address the Organization's procedural arguments. Review of the record indicates that the change in location may have been inconvenient, but there is no showing that the change hindered the Claimant's defense nor has there been a showing; in this instance that the date of the incident in the Notice impaired the Claimant's defense as it is clear that the Claimant and the Organization both understood the instructions were given to the Claimant on May 5th f«r work to be done can May 6. 2010. therefore, the Board concludes that the Investigation was held in compliance with Rule 13(a) the Discipline Rule and Appendix No. 1 I .
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                                  Award No. bl), Case No. 60

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Fuming to the merits the Claimant's immediate Supervisor, I)evereaux L<. Fisher, Roadmaster testitied can pages 14 and I S of the Transcript as follows:

      "Debra.r. Smith: You gave him instructions on May 5th. Again, what were the instructions you gave him?


      Devereaux L. Fisher. The instructions were have all, all the employees leave at 0808 on May 6th.


      Debra J. Smith: Okay. Did he comply with the instructions that you gave him on May 5th?


      Devereaux L,. Fisher: No." (Underlining Board's emphavis)


      On page 24 of the Transcript the questioning of Supervisor Fisher continued as tollows:


      "Debra J. Smith: When did you first become aware ref the fact that your instructions were not followed"?


      Devereaux L. Fisher: Uh, I uh, it was the night of 5l&. And ! brought it to Mr. Devitt's attention the Friday morning at the, right after the briefing, on the 7th.


      Debra J. Smith: rind again, what was his explanation?


      Devereaux L,. Fisher: That he wanted the grapple truck and the bus to get over here uh, due to how they travel on the highway.


      Debra J. Smith: In your opinion as the Roadmaster in charge of this gang, was that necessary overtime?


      Devereaux L. Fisher: It really wasn't necessary overtime uh, because we could have done without the bus and erapple truck. We were lust untoadinz


      Debra .I. Smith: And, was it overtime authorized by you?


      Devereaux L,. Fisher: No. (Underlining focrr&v emphavis)


()n pages 49 and 62 of the Transcript the Claimant acknowledged the tact that Supervisor Fisher instructed him on May 5th to leave the mote! at 8:00 a_m., 'stay , 201 0, with his entire crew to travel to Torrington, Wyoming. Claimant's decision to have two of his crew members leave earlier with the slow moving vehicles was well intentioned, but before he chose to
                                  P.L.R. No. 70:#3

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counterman his Supervisor's instructions he should have called Roaster Fisher to seek approval. Based upon Fisher's testimony it is unlikely he would have changed his mind as he stated that it was not necessary that the two slow moving vehicles be at the new work site at 12 Noon. '1 `he record is clear that substantial evidence was adduced at the Investigation that the Claimant did not follow the instructions of his Supervisor.

 The only issue remaining is whether the discipline was appropriate. At the time of the incident the Claimant had approximately 12 years of service with a less than stellar work record which included a suspension for sleeping on a machine, formal reprimand for being absent from duty without proper authority, conditional suspension for first time violation of alcohol/drugs, record suspension tier failure to hold a proper job briefing, record suspension for failure to have portable radio while inspecting track as a tone worker. The Carrier's Policy for Employee Performance Accountability (PEPA) allows for the dismissal of" an employee that has two Level S incidents within a 36 month period and in this instance the Claimant was granted leniency as this was his second level S violation within six months. The Board finds and holds the discipline will not he rescinded as it was not arbitrary, excessive or capricious.

                  AWARD


      Claim denied.


          William R. Miller, Chairman & Neutral Member


t
    s

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Samantha Rogers, Carrier ember David D. Tanner, Employee Member

 Award Date:
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