NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 7048
AWARD NO. 72, (Case No. 72)
BROTHERHOOD OF MAINTENANCE OF WAY
EMPLOYES DIVISION -1BT RAIL CONFERENCE
vs
BNSF RAILWAY COMPANY
William R. Miller, Chairman & Neutral Member
Samantha Rogers, Carrier Member
David D. Tanner, Employee Member
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
1. The Carrier violated the Agreement commencing August 19, 2010, when
Claimant, David J. Devitt (13433$3), was Dismissed for failure to operate
a company vehicle in a safe and efficient manner which resulted in a
collision with a utility pole and damage to the vehicle on August 19, 2010.
The Carrier alleged violation of MOWOR 12.1.1.
2. As a consequence of the violation referred to in part 1 the Carrier shall
remove from the Claimant's record this discipline and he he reinstated
with seniority, vacation, alt rights unimpaired and wage loss commencing
when Claimant withheld from service and continuing forward and/or
otherwise made whole.
(Carrier File No. 14-1(1-0189) (Organization File No. 120-1302-1051.CLM)
FINDINGS:
Public Law Board No. 7048, upon the whole record and
all
the evidence, fnds 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.
()n August 24, 2010, Claimant was directed to attend a formal Investigation on August
3 1, 2010, concerning in pertinent part the following charge:
"...for the purpose of ascertaining the facts acrd determining your responsibility,
if any, in connection with your alleged failure to operate company vehicle 113533
in a safe and efficient manner which resulted in damage to the vehicle from a
collision with utility pole. The alleged violation took place on August 19, 2010 at
P.L.B. No. 7048
Award No. 72, Case No. 72
Page 2
approximately 0825.'·
On September 28, 2014, Claimant was notified that he had been found guilty as charged
and was dismissed from service.
This is the second in a series of 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 become academic because in Award No. 71 this
board found that Carrier's decision to dismiss Claimant was appropriate. Therefore, the Board
finds and holds that the dismissal in Award No. 71 cannot be overridden and the issue raised in
the instant case is now moot, 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 Claimant
was guilty as charged.
AWARD
Claim dismissed.
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William lt_ Miller, Chairman & Neutral Member
Samantha Rogers, Carrier Member
Award Bate=
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David D. Tanner, Employee Member