BROTIICRHOOD OF MAINTENANCE OF WAY
 EMPLOYES DIVISION - lBT RAIL CONFERENCE
BNSF RAILWAY COMPANY














FINDINGS:
public C_aw Board No. 7048, Upon the whole record and all the evidence. tinds and holds that Fmployee and Carrier are employee arid carrier within the meaning of the Railway I,alr Act, as amended: and that the Board hass 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 17, 2010, Claimant vas directed to attend a formal Investigation on May 26, 201 0, which was mutually postponed until June 9, '?(J I 0, concerning in pertinent part the f6llowing charge:


                                  Page 2


      approximately 1523 hours on May 11, 2010 eon the Conroe Subdivision in violation of Maintenance of Way Operating Rule (x.2.1, Train Location."


On July 14. ?0113. Claimant was notified that he had teen found guilty as charged and was assessed a Level S A Day Record Suspension with a one year probationary period.

 It is the Organization's position that the Carrier did not meet its burden of'` proof': It asscrtcd that the Claimant way; denied a "fair and impartial" I fearing because the recorder malfunctioned and lost in(orrriation and questions had to be repeated giving the Carrier witness a second opportunity to readjust his answers. Additionally, it argued that it was unfair that the principal witness against the Claimant testified via telephone rather than facing the accused which denied the Claimant an opportunity to face his accuser. Based upon those procedural errors alone it argued that the discipline should be set aside without even reviewing the merits. .Additionally, it argued that the Claimant is a 56 year old employee with 32 years of service and a good work record. turning to the merits, it asserted the Claimant has shown that he complied with the intent ofthe Rule as it existed on May 1 1, 201(), and because of such the Carrier realized that they had an issue with Rule 6.2.1 and revised it on May 21, 21310. with a clear explanation as to why the revision was needed in System General Order No. 15. It concluded by requesting that the discipline be rescinded and the claim be sustained as presented.

 It is the position ol'the Carrier that the Investig=ation vas fair and impartial and there were tit) procedural errors. It argued that Rule 6.2.1 was explicit that the milepost locations needs to he confirmed alter receiving track authority through radio contact and because Claimant failed to secure such on the date in dispute he was in violation of the Rule. Furthermore, it stated that he admitted to that failure can page 1`i? ohthe Transcript. It closed by asking; that the discipline not he disturbed.

 The Board thoroughly reviewed the transcript and the record of evidence and has determined that the Organization's procedural arguments do not rise to the level to set aside the discipline in this instance without reviewing; the merits as it was evident that the Claimant rind Organization were not surprised by anything that arose during; the Hearing and Claimant was well represented. The Investigation was held in compliance with Rule 13(a) the Discipline Rule and Appendix o. 1 1.

 MOWOR 6.2.1. Train Location, which has been relied upon by both parties stated in pertinent part:

      "Prior to fouling the track at the location where the track will be first occupied, employees who receive authority to occupy the track after the arrival of a train car to fallow a trains) must:

                                  1'. L.13. No. 70-t8

                                  Award No. 67, Case No. 67

                                  Page 3


      · After receiving the authority, establish direct radio contact with a crew member of the train (s).


      * Confirm the train's identity by engine initials and number.


      · Ascertain the trains) MP location, confirming it bas passed the location where the track will be fouled or occupied ...."


Review ofthe testimony indicates that the Manager of0perating Practices. lZ. Vanwye. testified that can May 1 1, '?010, he was doing a remote audit of employees when he monitored the conversation regarding the incident in dispute. On page 12 of the transcript, he was questioned about the C'laimant's actions as follows:

      "C:ary M. Marquart: Did, did he contact a crew member in the radio conversation that you heard?


      Rick Vanwye: That gentleman, yes, he did contact a train crew member, correct.


      (wary M. Marquart: Okay, did he confirm the train's identity?


      Rick Vanwye: That, he did, yes."


Mr. Vanwvc went on to state that the third bullet re_erred "...to the body of the rule." and the Claimant vas in violation Of Rule 6.2. l .

 The Carrier is also correct that the Claimant testified on page 17 of the `transcript that he did not confirm BNSF 8858 West passing of Milepost 40.38 by radio. However, can pages 20 Lend 21 the questioning of the Claimant continued as follows:

      "Gary M. Marciuart: Mr. Morgan, in the conversation with the Dispatcher, did he acknowledge that the train was past you?


      Raymond D. Morgan: That is correct.


      Cary M. Marquart: Okay. Now then, you stated where or it's been, it's been addressed that you ascertained the mile post location of the train through other means other than verbal communication over the radio, is that correct?


      Raymond 13. Morgan: That is correct.

                                  Y. L. B. No. 704$

                                  .award No. 67, Case No. 67

                                  Page 4


      (;ary M. Marquart: And, and the train crew, you also stated, 1 believe, that the train crew acknowledged your presence at that road crossing`'


      Raymond D. Morgan: That is correct.


      (;ary M. Marquart: They opened the window, waved at you, hollered, whatever?


      Raymond D. Morgan: That is correct.


      Ci<ary M. Marquart: Okay. So they knew where you were at`'


      Raymond 1). Morgan: That is correct.


      Gary M. Marquart: And you knew where they were at?


      Raymond I). Morgan: That is also correct.


      Gary M. Marquart: Rio you, by rule, you ascertained the train's mile post location''


      Raymond I). Morgan: That is correct." (underlining Board`s cmphusis)


The Manager of-Operating Practices testimony recognized the crux of the issue when fie stated the; three bullet prints refer to the body of the Rule:. The Carrier argued that the: three bullet points all require radio confirmation. That argument is based upon an inference and is not without some appeal. Taut it is not persuasive in this instance because the directive to make radio contact is not within the body of the Rule prior to the three bullets as it was only set forth in the first bullet.

 Claimant testified anti it was not refuted that he did a roll by of BNSP 8858 West which the train crew acknowledged as they passed him. The record further indicates the Claimant complied with the intent of the Rule as it existed on May 11, 201tt. 1le received authority as required, established direct radio contact with a crew member of the train and confirmed the train's identity by engine initials and numbers. He also ascertained the: train's Mile Post location through both visual and verbal communication even though he did not memorialize such on the radio. The Organization was correct that the Rule 6.2=1. Train Location, was subject to multiple interpretations, w-Rich may explain why it was subsequently revised on Slav ? 1, 2010. wherein it was changed in pertinent part to read as titllo\N°s:

      _...After receiving authority behind a train(s) and before occupying or fouling the track, the employee must establish direct radio contact with a crew member of the trains) and verbally:

                                  1'.L.13. No. 7048

                                  -sward Rio. 67, Case No. 6'1

                                  Page S


      * Confirm trains) identity by engine initials and number

      · Determine trains) location by Ml' The employee must use this information to verify the trains) has passed the location prior to occupying or fouling the track."


Svstem General Order No.15 which was an exhibit to the Inves=tigation transcript explained why the Rule was changed as fc)llows:

      "MW(3R 6.2.1 is amended to clarify that information which must be obtained lay the employee through direct radio contact with a train crew member after receiv inl; authority behind a train."


The change and clarification of the Rule emphasizes the: fact that the; Claimant slid not violate the Rule prior to its revision and substantiates that the Carrier slid not meet its burden of proot:

 The Board finds and holds that the discipline is rescinded and removed from the Claimant's disciplinary record and Claimant's disciplinary status reverts to that he held prior t« July 14, 20 14. The additional requests set forth in part 2 of the claim do not apply as the Claimant lost no compensation nor had any benefits impaired.

 Claim Sustained in accordance with the Findings and the Carrier i5 directed to make the Award effective on or before 30 days following the date the Award was signed lay the parties.

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        ~,----~--~--~,--~ 1


          William R. Miller, Chairman & Neutral Member


Samantha Rogers. Carrier "e her David D. Tanner. Employee Member

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