BROT[IERI-IOOD OF MAINTENANCE OF WAY
 EMPLOYES DIVISION - 1BT RAIL, CONFERENCE
VS

 BNSF RAILWAY COMPANY




STATEMENT ()F CLAIM :











FINDINCS :
public Lace Board No. 71)48, upon the whole record and all the evidence. finds and holds that kmployee and t°rrier are employee and carrier within the meaning ofthe Railway 1 ahor .pct as amended: and that the board has.lurisdietion over the dispute herein; anti that the parties to the dispute have participated in accordance to the Agreement that established the Board.

 Can February 7. 2()1 1, t`lairnant was directed to attend a lOrmal lnvestiLation on 1.ehruar~ ?5, ?(t1 1. which was mutually postponed until April 29, 2011. concerning in pertinent hart the Y 10llmwing charge:


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      20149 on Friday, February 4, 2011 at approximately 0730 hours on the Lampasas Subdivision, which resulted in a collision with a private vehicle at the roar! crossing located at Mile lost 254.1, in violation of Maintenance of Way Operating Rule 6.50.2, Approaching Road Crossings."


<>n May 27.'Elf 1. Claimant w=as notified that lip had been fi>undguilty ay char`.~td and was dismissed from service.

 It is the Organization's position that the Claimant was denied a "fair and impartial" I fearing because the Notice of In vcstigation had the wrrong date as to when the incident occurred. It argued that Notices arc very important and when they are vague and ambiguous, as was the case in this instance. It is impossible to prepare a proper defense. :Additionally. it argued that tile Carrier did not supply the Claimant a copy of the Police Accident Report prior to the Investigation and because of those two procedural errors the discipline should he set aside without even addrssing the merits. Turning tea the incident it argued that Claimant "'LIS operating a hy-raiI vehicle on the tracks can I-ebruary , M1 1, at the road crossing, located at Mile post 254.1. Claimant had stopped for vehicular traffic as there were cars on both ,ides of the track. Claimant slowly proceeded across the road crossing on the rail when one of-the stopped highway vehicles proceeded to go around and pass the other stopped vehicles on the shoulder of the road and ran into the side of'(1aimant's vehicle, causing minor damage through no fault of the Claimant. It closed by requesting that the discipline be rescinded arid the claim he sustained as presented.

 It is the position of the Carrier that the Claimant was not denied his "dug; process" ,Agreement rights because the Notice had the wrong date which was a typographical error that should have; read February Ird rather than the 4th. It argued the Notice did have the correct Mile Post and the Organization and Claimant had more than enough information contained in the Notice to prepare a proper defense. ()n the merits it argued that the Claimant admitted in his testimony that he was in violation of the Rules when he was involved in an accident with hip; hYrail vehicle at a road crossing on 1'ebruary ). 2011 . It also pointed out that following the accident the Claimant had a drug and alcohol test which resulted in a positive test fir marijuana. It further asserted the Organization's argument that even though the Claimant admitted durinip the I fearing that three weeks prior tea this incident while on vacation he had smoked sonic marijuana - Ate was not in violation ofthe Drug and Alcohol policy on the day of the accident because hey riot indulged in over three weeks wits without merit. It argued it did not know when the Claimant last smoked marijuana. but it is clear that ME)W<)R 1.-I prohibits any controlled substance to be in an employee's body while: they are can duty and the Claimant's drug test was positive for marijuana. It concluded by asking that the discipline not be disturhc:d ;and the clairtt remain denied.

 I-he Board has thoroughly reviewed the transcript and record of evidence and will first address the Organization's procedural arguments. The Organization is correct that Notices must
                                P.L.13. No. 704$

                                Award No. 88, Case No. i"l8

                                Page 3


lie clear enough that the charged employee understands the allegations rnadc against hint ,(> as to prepare a proper defense. I.xarnination of the transcript confirms that the Claimant anal Organization understood the charges. The other argument niadc by the: ()rganizxttion was that the Carrier withheld information until the day ofthe Investigation which put them at a disadvantage. F he information not provided until the I fearing consisted of` the police report and photos ofthe hv-rail damage. The transcript indicates that the Organization spas given ivhatcvcr tintc they n ceded to review those exhibits and there was no showing that they were inhibited in their f dclivnse by when they received the aforctncntioncd document;. The Board ha, determined that the Investigation and appeal process ntet the guidelines of Rule t 3(a) the Discipline Rule anti Appendix No. 1 1.

 Mere is no dispute that on February 3. 201 1. ('laimant vas involved in a minor accident when his hv-rail vehicle collided with a private citizen's vehicle. On page '5 of the transcript the Claimant was questioned about the accident as follows:

    "Dave Cunningham: Okay. If you come up to an intersiection that has a, where it, where it tells you to yield, what's required of you as a driver at that point?


    J. h,. Godfrev Jr.: You stop and look both ways.


    Dave Cunningham: Okay, and if -,,on get struck try the vehicle while you're crossing, who's at fault?


    J. l.. Godfrey Jr.: t V_uess I would be. t'C>'nclerlfnintj Bo(-ird'S emphasis)


    Dave Cunningham: Okay. 1s that essentially the same thin; here, that under the rule, you're supposed to stop and, and yield to right of waN?


    J. f.. £.odfrev Jr.: Yes.


    Dave Cunningham: if you have an accident, did you yield right of way?


    .1. 1,. Godfrev Jr.: No, sir. ((nflerlinin<.; Bocird's cniphcxsis~


    Dave Cunningham: Did you use dour horn at all, when you were crossing that crossing.

          '


    J. 1,. Codfrev.Ir.: No, fir." ((;ath=dining Bourd'v emphasis)


    On page 28 of the transcript the questioni ng of the Claimant continued as follows:

                                P.L.I3. No. 7048

                                Award No. 88, Case No. 88

                                Page -I


    "Dave C`,unningham: So Mr. Godfrey, if you hack you, if there was a vehicle stopped that the vehicle that entered the railroad crossing came around or passed or however they got there, if there was a part of the roadway you could nut see, should you have kept going through the intersection`?'


    .l. L. Godfrev .1r.: No. (Underlinir~; Boar(ls emphasis)


    Dave C'unningham: Then why did you`'


    .I. L. (:odfrev.Ir.: I went because I thought I could make it. I thought my wawas clear." rUnclerfnir7,tr Boxird`.5 emphrisisi


It is clear front the aforerntntioncd testimony that the Clannaln admitted tic violated MOW(~R f>.5t).? Approaching Road Crossing, but the record also Substantiates that the \,chicle driven b the private citizen ( l.cyal JennIings) passed the stopped car ahead of' it can the right hand shoulder ol~the road which was verified by they police report. Passing a stopped car oil the riolit hand side ofa two lane road is not the norm anti in many instances is illegal. The Organization is correct when it argued that it is not unreasonable to believe that the private citizen's actions s,vcrt a contributory factor to the accident as the stopped car acted as a shield to his car as he passed oil the right hand side. Despite that contributory ,`actor there was substantial evidence adduced at the Investigation that the Claimant was guilty as chawed. The Board makes no deter tination revardinuo the Claimant's alleoed positive drttV test and ~v=hcther fie nnight ha,,e violated 1,4 because it was not part of the charges anti it is evident that alleged allegation seas known to the Carrier prior to its filing of'charges and could have: been included.

 The only issue remaining is whether the discipline was appropriate. ,fit the time «f the: incident Claimant had approximately 31 years of'service. This violation was his second Level S within a one tear period. As the; Carrier stated in its declination two Level S violations inav subject an employee to dismissal, however, the Board finds and hold that the discipline in this instance was excessive and is reduced to a lengthy suspension which is progressive and corrective in nature and in accordance with the spirit of the C'arrier's Policy for Employee Pcrt{trmance .Accountability (111-TA) wherein tinder Paragraph (b) ( icticral Information it states in pertinent part: "C"ircumstances surrounding a serious incident may reduce an employee's personal culpability." ltecattsc ofthc unique circumstances ofthis cstse wherein the: pi-it~tte citizen's driving contributed to the accident the Claimant will he returned to service with wniority intact. all lxmetits unimpaired, but with no hack pay anti two Level S Violations on his record. Clairnattt i,; forewarned that he needs to lie careful to abide b\° all Carrier Rules and l'olic~ as he works to clear offthat record over the 12 months tillou,in<~ reinstatement.
 P. L.l3. No. 7()48
 Award No. 88, Case No. 88
 Page 1

                .' YT ArlD


Claim sustained in accordance with the Findings anti the Carrier is directed to make the toward effective can car before _1() days lOllowing the date the Award \N-,is signed by the parties.

        William R. Miller. Chain-nan Neutral Member


Samantha Rogers. C'arricjr)Men her David I). Tanner. I:mplovee Member

 Award Date:- ; 4