NATIONAL MEDIATION BOARD PUBLIC LAW BOARD NO. 7048 AWARD NO. "70, (Case No. 70)

BROTHERHOOD OF MAINTENANCE OF WAY
FMPLOYES DIVISION - HIT RAIL CONFERENCE

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BNSF RAILWAY COMPANY

William R. Miller, Chairman & Neutral Member

Samantha Rogers. Carrier Member

David D.,farmer, Employee Member

STATEMENT OF CLAIM:

"Claim of the System Committee of the Brotherhood that:

1. The Carrier violated the Agreement commencing April 19, 2010, when Claimant, Steven N. Radford (132380fi), was Dismissed for abandoning his position after Roadwaster instructed him twice to report to his office to take a drug and alcohol test on April 11, 2010. The Carrier alleged violation of MOWOR 1.13 Reporting and Complying; with Instructions, MOWOR 1.15 Duty - Reporting or Absence, MOWOR 1.16 Subject to Call, and MOWOR l.( CondncL

2. As a consequence of the violation referred to in part I the Carrier shall

remove from the Claimant's record this discipline and he lie reinstated with

seniority, vacation, all rights unimpaired and wage loss commencing when

Claimant withheld from service and continuing forward and/or otherwise

made whole,."

(Carrier File No. 1=#-10-0198) (Organization File No. 1911-1311-102.CLM)

FINDINGS:

Public Law Board No. 7048, upon the whole regard 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; and 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 April 12, 2010, Claimant was directed to attend a formal Investigation on April 21, "2010, which was mutely postponed until August 18, 2010, concerning in pertinent part the following charge:

"...for the purpose of ascertaining the facts and determining your responsibility,

P.L.B. No. 7048
Award No. 70, Case No. 70
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if any, in connection with your alleged failure to comply with Roadmaster's

instructions twice to report to the Roadmaster's office while on duty and

abandonment of position while working at Barrstow as a Track Supervisor on

the Needles Subdivision on April 11, 2010.

The investigation will determine possible violation of MOWOR 1.6 Conduct, MOWOR 1.13 Reporting and Complying with Instructions, MUWOR 1.15 Duty - Reporting or Absence, and MOWOR 1.16 Subject to Call."

()n September 14, 2010, Claimant was notified that he had been found guilty as charged and he was dismissed,

This is the second in a series cat two dismissal cases before the Board involving the same Claimant. The skillful arguments of the respective parties need not be reiterated in this instance as the question of Claimant's alleged guilt has became academic because in Award No. 63 this Board hound that Carrier's decision to dismiss Claimant was appropriate. Therefore, the Board finds and holds that the dismissal in Award No. 63 cannot be overridden and the issue raised in the instant case is now moat, thus, the claim is dismissed. However, we would add that a review of the transcript and record substantiated that the Carrier met its burden of proof that the Claimant was guilty as charged.

AWARD

Claim dismissed.

William )a. Miller, Chairman &c Neutral Member

Samantha Rogers, Carrier Member

David 1l. Tanner, Employee Member

Award Date: