(

              ( BROTHERHOOD OF MAINTENANCE

              ( OF WAY EMPLOYES


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

              (


Statement of Claim: 1. That the Carrier's decision to issue a Level 2 deferred
 suspension from service of 2 days, deferred for six
 months for Western Region, S. E. Dulmage 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 11:00 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.

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                                      Public Law Board No. 4244

                                      Award No. 222

                                      Case No. 236

                                      File No. 180-1313-988.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, S. E. Dulmage, was notified to attend a formal investigation concerning his alleged tampering with timber tongs that were involved in an incident resulting in personal injury March 14, 1996. As a result of the investigation, the claimant was issued a Level 2 deferred suspension of two 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

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


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                                        Public Law Board No. 4244

                                        Award No. 222

                                        Case No. 236

                                        File No. 180-1313-988.EXP


    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 after 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. Rohling, r er Member R. B. Wehrli, Employee Member

 rnathan I. Klein, Neutral Member

 This Award issued the ;~Jtk ay of v, 5 ~- , 1998.

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