BROTHFR1IC?()I) OE MAINTENANCE <)F WAY
 EMPLOYES DIVSION - IR;T RAIL CONFERENCE
Ys

 BNF RAILWAY COMPANY




STATEMENT OF CLAIM:











FINDINGS:
t'ublic Law Board No. 7/)48. upon the whole record and all the evidence, finds and holds that Fmployee anti Carrier are employee anti carrier within the meaning, «f the Railway l.abor :pct as amended: and that the Board has,juris.liction over the dispute herein; and that the parties to the dispute have participated in accordance to the Agreement that cstahlishcd the Board.

 On November 9, 20 10, (Corrected Notice) Claimant was directed to attend a formal Investigation can Noveber 9, 2010, concerning in pertinent part the following charge:


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    This investigation will determine possible violation of VIOW<>R 1.6 Conduct

    and V1<)WOR 1.19 Care of Property."


On December fr. 2010, Claimant was notified that he had been found guilty as charged and vas dismissed from service.

 It is the Organization's position that the facts indicate that can l"ovcmber ?, 2010. Claimant was assigned as a Machine Operator operating a !lack I foe l ractor Machine. Part of` his assigned duties included maintaining the right of way tier the Carrier anti keeping it clean of all material and trash. It argued that in the past, the Carrier allowed employees to haul offscrap tics to get them off the right <}f way. It further asserted the policy for removing, scrap ties had changed and now required employees to get a note giving them permission to haul off tip S Which Claimant was not aware of: Claimitnt was needing some ties to repair his horse coral ant! he knew there were scrap tics he had to clean up, so while he was cleaning the right of way he loaded some ofthent on his trailer. Subsequently. he was approached by a Special Agent Nkho asked him if fie had a permit slip to take the ties at which time the Claimant explained that he did riot know he needed written permission. Because he did not have a permit slip Claimant immediately unloaded the ties and told the Special Agent he would speak to the Roadrnastcr later about seeking permission to remove the ties. The Organization reasoned that this vas nothing more than a misunderstanding about the process in place: for the removal ol~scrap tics and the Claimant was not aware of the change in policy nor did he take anything. It Concluded by requesting that the discipline he rescinded and the claim sustained as presented.

 It is the position of` the Carrier that the testimony of Special Agent Debbie Mitchell confirmed that she came upon the Claimant loading its railroad ties with a Carrier owned back hoe into his personal trailer at approximately 4:30 p.m. on November ?. 21() I (). It argued the Claimant admitted to the Special Agent that he did not have permission to take the ties arid lie told her the next day that he planned on taking 15 or 16 ties. It suggested the fact that the Special ..t~e~t stopped the Claimant before he left Carrier property with the ties does not change the fact that the Claimant's intent to defraud the Carrier way; there.

 In response to the Organirittion's argument regarding the policy change for the removal rrl' tic and the allegation that the Claimant was riot aware he needed permission before he could remove ties, it asserted that argument is without merit. It argued that the Claimant readily admitted in his testimony he was taking ties to build a horse. corral and he had not been allowed to take them in the past unless he was working with a Contractor that hard been contracted to pick Lip the tics. It closed by asking that the discipline trot be disturbed and the claim remain denied.

 hhe Board has determined that the Investigation and appeal process met the guideline, c>l Rule l3(a) the Discipline Rule arid Appendix No. f f.
                                1'.1,.13. No. 7048

                                riward No. 8, Case No. 85

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flhere is no dispute between the parties that Claimant admitted he intended to remove Carrier scrap-ties on November 2. 2010, without first securing permission. f >n page ?t) of the transcript, the: Claimant made a closing remark about the incident as t«llows:

    "Wilson C*. Yazzie: Well I just want to say that I guess I just made a mistake and I'm sorry about it you know, I feel sorry and think about it a lot since that time and I embarrassed myself, I'm embarrassing my family, I've put them through a lot, that's all I'm going to say, I'm sorry."


ltevicw of the record reveals that substantial evidence "as adduced at the lnvesti-atiors that the Carrier met its burden of proof that Claimant was guilty as charged.

 1-he only issue remaining is whether the discipline was appropriate. At the time <>f the incident Claimant was Eat) years old with approximately 3? years of service with one Level S serious violation that occurred about two months earlier. The Board does not excuse the Claimant's behavior, however, in this instance it finds and holds that based upon the Claimant"s long and good work record and the unique circumstances ofthe dispute the discipline was excessive and is reduced to a lengthy suspension which is progressive fund corrective in nature and in accordance with the spirit of the Carrier's Policy tcrr Employee Performance Accountability (ffa'Aj. Claimant will be returned to service with seniority intact. all benefits unimpaired, but with no back pay and two Level Violations on his record. Claimant is torewarned that he reeds to be careful to abide by all Carrier Rules and Policy upon return tit 5crv ice .

                AWARD


Claim sustained in accordance with the Findings and the t_'arrier is directed to make the: Award effective on car bet(>re 3() clays tollowing the (late the Award N.as signed by tile parties,.

        William R. Miller. Chairman &. Neutral Member


Samantha Rogers. Carrier 1~:rttbc:r David t). Tanner, Fniplo~,ee Member

 Award Date: __~___. V-=-_