( BROTHERHOOD OF MAINTENANCE

              ( OF WAY EMPLOYES


Parties to Dispute: ( -and
 (
 (
 (
 ( BURLINGTON NORTHERN SANTA FE RAILWAY

 Statement of Claim: 1. That the Carrier's decision to issue a Level 2 deferred
 suspension of 10 days, deferred for six months for
 Western Region, D. J. Baird from service was unjust.
 2. That the Carrier now rescind their decision and expunge
 all discipline, and transcripts and pay for all wage loss as
 a result of an investigation held 9:30 a.m., March 25,
 1998 continuing forward and/or otherwise made whole,
 because the Carrier did not introduce substantial, credible
 evidence that proved that the Claimant violated the rules
 enumerated in their decision, and even if the Claimant
 violated the rules enumerated in the decision, suspension
 from service is extreme and harsh discipline under the
 circumstances.

                  3. That the Carrier violated the Agreement particularly but

                      not limited to Rule 13 and Appendix 11, because the

                      Carrier did not introduce substantial, credible evidence -

                      that proved the Claimant violated the rules enumerated in

                      their decision.

                                      Public Law Board No. 4244

                                      Award No. 221

                                      Case No. 233

                                      File No. 180-1313-987.EXP


                      INTRODUCTION

This Board is duly constituted by agreement of the parties dated January 21, 1987, as amended, and as further provided in Section 3, Second of the Railway Labor Act ("Act"), 45 U.S.C. Section 153, Second. This matter came on for consideration before the Board pursuant to the expedited procedure for submission of disputes between the parties. The Board, after hearing and upon review of the entire record, finds that the parties involved in this dispute are a Carrier and employee representative ("Organization") within the meaning of the Act, as amended.

                        FINDINGS

On March 2, 1998, the claimant, D. J. Baird, was notified to attend a formal investigation concerning his alleged knowledge of and failure to reveal information regarding tampering with the timber tongs that were involved in an incident resulting in personal injury on March 14, 1996. As a result of the investigation, the claimant was issued a Level 2 deferred suspension of 10 days for violating Rules 1.2.7, 1.1.4, 1.6, and 1.4 of the Maintenance of Way Operating Rules (MWOR) and Rule S-28.2.5 of Safety Rules and General Responsibilities for All Employees. The Board cannot sustain this discipline for the following reason.
 The rules of the MWOR which the claimant is alleged to have violated became effective on August 1, 1996, and the Safety Rule which the claimant is alleged to have violated

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y
                                          Public Law Board No. 4244

                                          Award No. 221

                                          Case No. 233

                                          File No. 180-1313-987.EXP


    was effective as of March 1, 1997. The incident at issue occurred on March 14, 1996. It is a

    fundamental and basic principle of labor relations that an employee can only be charged and

    found to have violated rules that were in effect at the time of the incident. An employee

    cannot be charged and found to have violated rules that became effective the alleged

    misconduct. The record reveals that the Carrier has charged the claimant with violating rules

    that were not in effect at the time of the incident at issue. The record also reveals that the

    Organization made a timely objection to the claimant being charged with violating rules that

    were not in effect at the time of the incident. Therefore, the Board need not reach the merits

    of this case because the Carrier failed to charge and find the claimant in violation of rules that

    were in effect on March 14, 1996, the date of the incident. The claim is sustained.

    AWARD

    The claim is sustained.


Thomas M. Rolaling, Carr' ember R. B. Wehrli, Employee Member

 onathan I. Kleiri, Neutral Member

 This Award issued the, 6 day ofN S U, 1998.

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