(

              ( BROTHERHOOD OF MAINTENANCE

              ( OF WAY EMPLOYES


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

              (

              (


Statement of Claim: 1. That the Carrier's decision to issue a Level 2 Deferred
 Suspension for 10 days from service with a probationary period
 of one year 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 10:00 a.m. on August 13, 1999 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. 249

                                      Case No. 252

                                      140-1311-997.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

The claimant, foreman Juan P. Aguilar, was assigned by the Carrier to the position of project foreman for gang number 23951. Subsequent to the commencement of his assignment, the claimant received verbal and written instructions from the Carrier regarding his various job duties and responsibilities. However, the Carrier contends that the claimant failed to comply with these instructions on various dates between July 13 and 30, 1999.
 The Carrier instructed the claimant to attend an investigation for the purpose of ascertaining the facts and determining his responsibility, if any, in connection with his alleged failure to comply with verbal and written instructions between July 13 and 30, 1999. As a result of the formal investigation conducted on August 13, 1999, the Carrier issued the claimant a ten-day Level 2 deferred suspension for violating Rule 1.13 of the Maintenance of 2
                                      Public Law Board No. 4244

                                      Award No. 249

                                      Case No. 252

                                      140-13I1-997.EXP


Way Operating Rules (MWOR). Additionally, the Carrier placed the claimant on probation for a period of one year. For the following reasons, the Board finds that the Carrier has satisfied its burden of proof that the claimant violated Rule 1.13 of the MWOR.
 A memorandum issued to the claimant by the Carrier, and signed by the claimant on July 13, 1999, provides, in part, as follows:

          I have talked with you on several occasions about reporting

          requirements and responsibilities of this position. Last set of

          verbal instructions were given on 7/12/1999 and not met on the

          same day. You failed to contact me on my cell phone at the end

          of duty 7/12/1999, for a job debriefing. In order to aid you in

          your duties a cell phone has been provided. The following are

          my instructions and will be done daily:


          1. Report to duty on time,

          2. Call me on my cell phone before 0800 for morning job

              briefing,

          3. Call me on my cell phone at the end of your work day for

              a debriefing (covering hours worked, overtime for your

              gang and days accomplishments),

          4. Keep a written log of all the days activities,

          5. Contact me immediately if any problems on site or with

              the gang,

          6. Maintenance of assigned vehicle and equipment.

At the investigation, assistant roadmaster H. J. Stopplecamp tested that the claimant failed to call him at the end of his work day for a debriefing on July 26 and 30, 1999. Assistant roadmaster Stopplecamp also testified that the claimant telephoned him more than two hours

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                                          Public Law Board No. 4244

                                          Award No. 249

                                          Case No. 252

                                          140-1311-997.EXP


      after the completion of his work day on July 27, 1999. Additionally, Stopplecamp stated that the claimant failed to telephone him by 8:00 a.m. on July 28, 1999, for a morning job briefing.

      Rule 1.13 of the MWOR entitled "Reporting and Complying with Instructions," provides as follows: "Employees will report to and comply with instructions from supervisors who have the proper jurisdiction. Employees will comply with instructions issued by managers of various departments when the instructions apply to their duties." At the investigation, the claimant admitted that he failed to comply with Rule 1.13 of the MWOR. Based upon the claimant's admission and the evidence of record, the Board finds that the claimant violated Rule 1.13 of the MWOR when he failed to comply with verbal and written instructions issued to him by assistant roadmaster Stopplecamp. Accordingly, the claim must be denied.


                            AWARD


          The claim is denied.


Thomas M. Rohling, Carrier tuber R. B. Wehrli, Employee Member

                      o

                    4J~L~, &- --- ----

                      nathan 1. Klein, Neutral Member


This Award issued the`fi day of ie r^uf, r 2000.

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