BROTI-IIERI-1001) OF MAINTENANCE OF WAY
 FMPLOYES DIVISION - 113'1' RAIL CONFERENCE
HNSF RAILWAY COMPANY




STt1TEVMFNT (>F CLAIM:









FINDINGS:
Public Law Board No. 7()413, upon tile whole record and till the evidence, find; and holds that Frrmployee and Carrier arc employee anti carrier within the meaniin., of the Railway labor pct as amended: arid that the: Hoard has jurisdiction over the dispute herein: zinc] that the parties to the: dispute have participated in accordance to the Ai-,rcernent that established the Board.

 0n October ?7. 20 10. Claimant was directed to attend a formal Investigation can October ?8, ?01 0, which was mutually postponed until December :3, 2010, concerning in pertinent part the: folio w ing charpc
Y. l .. l3. No. 7048
 Award No. 133, Case No. 83


On December '?.'ft10. Claimant was notified that he had lie(°n found QuiltN as clrarued ,Ind was assessed a I eel ` =t) Day Record Suspension along, with a three year prohati(>nart~ period.

 It is the Organization's position that the Claimant did not tOul the mainline track on October 18, 2010, bttt instead ~kas traveling down a well traveled right of'wav road. It argued he lead to proceed around a building. between it and the tracks. At no time (lid the C'lairnant Oet tip

 on the track nor did lie work anePor travel fitml of the tracks and he did not ~o within four feet ofthe nearest rail with hip; machine. According to it he simply traveled between the building and the tracks to get t« leis work locations. It concluded by stating that the Carrier did not meet its burden ofprool`and requesting that the discipline be rescinded and the claim sustained as presented.

 It Is the position ofthe Carrier that the record shows that the Claimant was operating a font end loader and while doing so, he teas observed by an l=RA Inspector to fee: fouling the main line track I ~Nithotit proper authority. Following this observation l'RA Inspector G. Stout diSCCtssed the incident with the Claimant and nneastired the distance I-oetween the wheel marks and tracks with a tomr loot nneasurin,, stick to decide ifthe Claimant had violated the Rules. It w-as determined the Claimant had traveled next to the track and ~vas not outside the required t'()Lir t'eet with his machine. Additionally. when the Inspector and various Carrier Offcers s=ent it) talk t(> the Claimant about the matter the Claimant swung the machine hticket again over the mainline without protection. It closed by askinV that the discipline not he disturbed and the claim remain denied.

 l`he Board has thoroughly reviewed the transcript and record ot~ci idence and has determined that the lnvestiu~ation was held in accordance with Rule I ')(a) the Discipline Rule and Appendix No. I I.

 A review (>f the transcript indicates that on page 12 the lfearina Officer (IrteSticned the Roadrnaster. 14. l lildcbrant about the October I filth incident and C'laimant's alleged culpability as fol lows:







                                  .Award No. 83, Case No. 83

                                  Page 3


      his loader without a proper authority." (t,'ndcrlining Board'.s cmC>htcsiv)


f fifdebrandt further testified on page 13 ofthc transcript that the f RA Inspector issrrec.f a Inspection Report wherein fie stated that the Claimant was working to trcar the track occasionally fouling it \.\,ith the bucket ofthe front end loader.

 ()n page ?8 ofthe transcript. the Claimant did not dispute the; filet that the f-'RA Inspector measured how far his machine vas from the mainline and advised huri he was less than four feet from the tracks in violation of NIOWt?R 6.3. Claimant instead argued he was not in violation of the Rule because he was riot working within four fret of the tracks, taut was in the process of moving his machine to another location.

 On pates 30 and 11 of the transcript, R. Dickerson. tieneraf Situtal Supervisor was examined in regard to the incident as ft>ffows:

      "Michael ffleille: What happened that day`s


      Ronald Dickerson: We were in the area, accompanied by FRA Inspector,.ferry Stout. We were doing an investigation of the incident at Monroe Street. During that investigation aferry Stout, the FRA Inspector, and myself, Keith Facicus, and 'Pony Brooks, were doing our investigation, and .ferry said, stop what we're doing, lie then noticed Mr. Adams moving his machine between Main 1, and the Maintainer"s Shed at f~finclsdale. fie said, stop, I don't believe that guy has clearance. We all took a look at the situation. We agreed it wax very close, walked down to investigate further. .Jerry has a fiberglass pole that's .4 foot in length. fie took it down. We could still see where the tire tracks were in the ballast from the End Loader. And he put the fiberglass pole ula against the rail, observ=ed that the tire tracks were well within the 4 feet, makinp_ Mr. Adams foul the track. We then puffed Mr. Adams tiff his machine, had him get clear. Asked him what type of protection he had. lie stated to us at the time he believed he had a Form t3. After he went and inspected his paperwork it ended up the Form that he was speaking of was on 'f'rack 2. Therefore, he did not have any authority to foul the track ...." Il,nclcrlirrit~t, HourdS= emphasis)


On pages 33 and 34 ofthc transcript Dickerson further testified that when the Claimant v,as asked to shut his machine d«w°n and discuss the matter he swung the bucket over the klain f track. General Supervisor Dickerson's and Roadmaster f fifdebrandt's testirnonv was not effectively rebutted. The Claimant alleged he was not working, but just traveling along the: right of'wav, however, it cvas not refuted that there. was an actual road on the other side ofthe shanty that the Claimant cctUld have used to stet to the same location without placing his machine w it hin
                                  P.L.t3. No. r'F048 award No. 83, C.'ase No. !i3 Page 4


tour feet ofthe mainline l rack- l . The Claimant vas workim,. when he moved his machine to~ a
 ditfcrcnt u,«rk site and icy the: process he fOuled a mainline track without protecticxn. SuhSUIntial
 e*dence was adduced at the Investloation that the Carrier met its burden ofproofthat Claimant
 vi %,,as guilty cps charged.

 1-he only issue rc°maining is whether the discipline was appropriate. tit the time of the incident Claimant had 2'9 years of'service, however. a little over a month before this incident Claimant had been assessed a Level `5 30-Day Record Suspension for carelessness andl'or tie-licence resulting in a personal injury to himself; thertt«rc. the Board finds rind holds that the discipline exercised in this instance was in compliance w=ith the: Carrier's policy fir t:niployce l'erf«rrnanee Accountability t f'la'A) and twill not be set aside because it ryas not excessive. arbitrary car capricious. Fhe claim will remain denied.

                  :1'W A It t)


      Claim denicc3.


          William RF 'Miller. Chairman Neutral Member


.:_~ _~-.r`t _.__"'.~ .____ ~w_,:~ _ . _.,~'_.~-_`-:_:__. ~.____ ~_ _ _ ._._
 Samantha Rogers, Carrier 'ember David I). Tanner. Employee )YIetnber

 A~.ard Date: ,-__ _