BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION - IBT RAIL. CONFERENCE:
vs

 RNSF RAILWAY COMPANY




STATEMENT OF CLAIM:











FINDINGS:
Public Law Board No. 7()48. upon the whole record anti all the evidence, finds and holds that hmployee and Carrier are employee anti carrier within the meaning ofthe Railway I-ah«r Act. as amended: and, that the Board has jurisdiction over the dispute herein; and that the parties tar the: dispute have participated in accordance to the Agreement that established the Board.

 On May ?6, ?010. Claimant was directed to attend a formal Investigation can June 10. 2()10, which was mutually postponed until July 22. 2010, concerning in pertinent part the following charge:
1'. L. B. No

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 Award No. 62, Case No. 62 Page 2


On August 19, 2010, Claimant was notified that he had been 60und gni lty as charged and was assessed a Level S 30 Day Record Suspension with a cane year probationary period.

 It is the Organization's position that the Claimant received an emergency phone call on N~9ay ?f). 2010, which required his return home. At that paint the Claimant realized he did not have sufficient f"ands or gas in his persona! vehicle to go home and return to work the next day. As a responsible father and spouse he made an instinctive decision to use a company vehicle on this one occasion with no intent to go against supervisory instructions. but only to take care of' his f`amily's needs and it stated the vehicle he chose to take was one that would not be used (ear catlout purposes. It argued that even though the Claimant was experiencing same financial constraints he paid back the fuel costs as soon as he could afford it. The Organization further asserted that the Claimant had not been tested on the Engineering Instructions for which he was charged and the Carrier provided no evidence that he had ever been tested on N1f)VJf)R 1.13. Lastly, it stated that even i1'the Carrier could produce evidence to support their charges, which it did not, the discipline is excessive in proportion it) the allegations. It concluded by requesting that the discipline he rescinded and the claim be sustained as presented.

 It is the position of the Carrier that prior to N1ay 20th. the: Claimant had discussions with hip; Roadmaster. I=. Aldana wherein he was instructed not to take the company vehicle home-. Following those discussions Aldana sent an email with irrefutable instructions to the Claimant telling him not to take the company vehicle to his home. It argued that the Claimant admitted he used L3NI= ernails yet he caonveniently fbrgot ifhe had received the email from his Roadmaster with explicit instructions not to drive the company vehicles home, however, he did admit during the i fearing that Rc}admaster Aldana specifically instructed him not to take company vehicles home and he disregarded that directive «n May 20. 20 10. Ct further argued that the discipline exercised was lenient and it closed by asking that the discipline not be disturbed.

 The Board has thoroughly reviewed the transcript and record of evidence and has determined that the Investigation was held in compliance with Rule I 3)(a) the Discipline Rule and Appendix No. l E .

 The record is clear that the Claimant admitted several times during the Nearing that he used a company vehicle to return home counter to Roadmaster .1ldana's instructions. For example, on pale 22 of the Transcript. he eras questioned as It}(Icfws=

                                  Page 3


      "Paul Thomas: Do you recall a conversation with Mr. Aldana about taking the vehicle home.


      Roy 1). Ling: Yes. My personal or the company?


      Paul Thomas: `rake the company, the company vehicle home.


      Roy 1). Ling: Yes.


      Paul Thomas: So what did that entail, do you recall.'


      Roy 1). Ding: tie said that he did not want us taking the company vehicles home anymore." l Underlining Borrrti's emphasis)


<)n Page ? 3 of the 'Franscrit. the Claimant was asked if the GI)M authorized him taking home any company vehicles can My 20th and he again stated, No. ()n page ?9, the cfuestionitz21 continued as f«ffows:

      "Paul Thomas: t have a couple. When did you hear about this emergency that required you to go home, Mr. Ling, about what time was that`.'


      Roy I). Ling: It was, it was after, it was after work. I don"t know the exact time.


      Paul Thomas: What time did you get off work that day'!


      Roy D. Ling: 3:00 is generally.


      Paul 'l'hflmas: So it was after 3:00?


      Roy t). Ling: Yeah.


      Paul Thomas: Did you make an effort to call Mr. Aldana and ask permisssion to take that truck home?


      Roy E?. Ling: Rio. (Underlining Bourct's emphasis)


f~cvicw ofthe entire record make:; it clear that substantial evidence was adduced at the Investigation that the Claimant was guilty as charged.

 I'he only issue remaining is whether the: discipline was appropriate. The Organization offered a vigorous and able detcnse ofthe Claimant and argued that the unusual circumstances
                                  P. L. t3. No. 'Ti)48

                                  .ward No. 62, Case No. 62

                                  Page 4


ofthe ease are reasons for mitigation. The Board is not unsympathetic to the C'laimant's plight can the date in question, however, can page 36 al'the Transcript the C'laicnant admitted he violated MOWOR 15.2 when he made no effort to contact his immediate Supervisor. If the Claimant had attempted to reach Roadmaster Aldana car left a message explaining the situation the Organization's argument for mitigation ofthe discipline might have been more persuasive. The discipline exercised by the Carrier was in accordance with its Policy fair I-I'mployee Performance Accountability IPFPA). therefore, the: Board finds and holds the discipline will not be rescinded because. it was not arbitrary. excessive: car capricious.

                  AWARD


      C"laim denied.


                71-


          William 12. Miller. ChairmanC Neutral Member


Samantha Roger%, Carrier N mber 1?avid L. Tanner. tmploe: member

 Award Date: _~.j^_ __