IIROT14ERHOOD OF MAINTENANCE OF WAY
 EMPLOYES DIVISION - IRT RAIL CONFERENCE
vs

 BNSF RAILWAY COMPANY




STATEMENT ()F CLAIM:











FINDINGS:
I'uhlic Law Board No. 7()48, upon the whole record and all the evidence, finds and holds that Employee and Carrier arc. 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 Ag reenzent that established the Board.

 On April 26,2010, Claimant was directed to attend a formal investigation on May 5. ?U l fit which was mutually postponed until August l fl, 20 10, concerning in pertinent part the t«llowing charge:


                                  Page 2


      if any, in connection with your alleged disconnecting of the "y-Rail limits Compliance System in company vehicle 22#52 and use of the vehicle and fuel card for personal reasons off territory on April .l, 201() at approximately 2345 hours at '1'ehachapi, California.


      This investigation will determine possible violation of MOW(?R 1.19 Care of Property and MOWSR S-12.1.1 Operation of Motor Vehicles - General Requirements."


()n September 14. ?010. Claimant was notified that he had been found guilty tLs charged and he was dismissed.

      It is the Organization's position that the Claimant is good employee with 1 ? years of

service who was having financial difficulties because of a tumultuous divorce proceeding
 wherein his wife had taken his children away from him. On the date ofthe incident the Claimant
 wanted to go home to see his kids and attempt to work things out with his spouse, but
 unfortunately he did not have sufcient funds so he chose, to use a company vehicle; arid fuel card
 to accomplish that. It argued that the Claimant admitted he made a mistake and accepted
 responsibility for that error, however, it points out that faced with the potential loss of his
 children, Claimant allowed his emotions to take control over his normal and responsible work
 ethic. Lastly. it stzated that even if the Carrier could produce evidence to support their charges.
 which it did not, the discipline is excessive in proportion to the allegations. It concluded by
 I-ecltIesting that the discipline 1?c rescinded and the claim be sustained as presented.

 It is the position ofthe Carrier that on April 4. 2_U 10. the Claimant disconnected the global positioning system device (1-ILCSj that the Carrier installed in its vehicle 22452 to both verify its position as well as provide an additional safety measure for its occupants. Additionally, it argued that the record verifies that the (:'laimant admitted he took that vehicle home and fueled it for personal use after receiving explicit instruction that company vehicles were not to 6e driven home. It closed by asking that the discipline not be disturbed.

 The Hoard has thoroughly reviewed the transcript and record of evidence and has determined that the Investigation was held in compliance with Rule 1 3(al the Discipline Rule and Appendix No. I 1.

 The facts indicate that the Claimant was alleged to have violated the following Rules which state in pertinent part=

      "MOWOR 1.19 Care of Property


          Fmployees are responsible for properly using anti caring for railroad

                                  P. L. I3. No. 7045

                                  Award No. 63, Case No. 63

                                  Page 3


          property. Employees trust return property when the proper authority, requests them to do so. Employees must not use railroad property for their personal use.


          S-12.1 Operation of Motor Vehicles S-12.1.1 Ceneral Requirements

              Every company vehicle driver must:


                Comply with all rules and procedures listed in the 13NSF Company Vehicle Policy and Procedure Manual for operating company or temporary replacement vehicles.


                  * * * x *tx


The record substantiates that the Claimant admitted several times during the Hearing that he used a company vehicle to return home and fueled it for his personal use, after receiving directives that those vehicles were not to be driven hone. For example. (in pages 22 and 23 of the ~hranscript, he was questioned as follows:

    "Adam Richardson: And there's an alleged, allegedly you disconnected a Hy-Rail Limits Compliance System, car HLCS, in vehicle 22452 on April 4th. Did you, in fact, disconnect the IIL'S System:'


      Steve Radford: Yes, I did.


    Adam Richardson: Okay, on April 4th, there is also an alleged that you used the t3NSF credit card for personal reasons at 'rchachapi. Did you use the BNSF credit card at Tehachapi?


    Steve Radford: I did take a company vehicle and used the credit card in Tehachapi.


    Adam Richardson: And why were you at 'Cehachapi`t


    Steve Radford: 1 had to go home for personal reasons.


    Adam Richardson: Okay, so you decided to take the vehicle home far personal reasons?


    Steve Radford: Correct.

                                  P.L.B. No. 70413 sward No. 63, Case No. 63 Page 4


      Adam Richardson: Is, do you, is there, has anyone ever explained to you what the vehicle policy is''


      Steve Radford: Paul Martinet iust told me that I wasn't allowed to take the vehicle home.


      Adam Richardson: Okay, and you chose to take it home`.'


      Steve Radford: Yes.


      Adam Richardson: Knowing that it was against the policy and his expectations``


      Steve Radford: Yes." (Underlining Board`s emphasis)


      The questioning of the Claimant continued on page ?4 as tollows:


      "GarN Marquart: Okay, and so you needed to go home on that particular day:'


      Steve Radford: Cam, I wouldn't say it was a dire emergency. I chose to go home, I didn't need to &o home." (Underlining Board's emphasis)


As previously stated Claimant admitted he disconnected the C'arrier's global tracking system can a company l-ly-Rail vehicle; and fueled it for his personal use after being specifically told nest to take company vehicles home. It is clear that substantial evidence was adduced at the Investigation that the. Claimant wa=s guilty as charged.

 The only issue remaining is whether the discipline was appropriate. Despite the; Organization's vigorous and able defense of the Claimant it could not overcame the fact that Claimant understood when he took the company vehicle it was against Carrier Rules and instructions which seas emphasized lay his testimony that he purposely disconnected the Carrier's tracking system so that it would not know that its truck was being used. Claimant further tcstiticd that no emergency existed and he did not need to go home. Additionally, the record indicates that at the time of the instant dispute Claimant had a prior Level S record suspension approximately nine months before. Those facts coupled with the Carrier's policy for Employee Perfbrmance Accountability (PITA) which states that two -serious rule; violations within l months are l;rounds for dismissal means the discipline exercised lay the Carrier was in accordance with its Pf:PA, therefore, the Board finds and holds the discipline will not be rescinded because it was not arbitrary. excessive or capricious.
 P. t.. E3. No. 5905
 Award No. 63, Case No. 63
 Page 5

 AWARD
Claim denied.

                              - --- ---- -----

William R.. Miller. Chairman &. Neutral Member

                  her

Samantha Rogers. Carr

 .'ward Date: _y/_

 David D. Tanner. I:'rrIpfovcc Member