'.J~BOR RE4...T!NS
 JUL 1 5 91

NATIDNAL MEDIATION BOARD

PUBLIC LAW BOARD NO. 4370-


BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES

and

BURLINGTON NORTHERN RAILROAD COMPANY





                  STATEMENT OF CLAIM


      1. The Carrier violated the--provisions of the current Agreement when on August 14, 1989, it removed Machine Operator Mr. Larry J. Rasco's name from the Machine Operator's seniority roster based on unproven charges-and in abuse of discretion.


      2. The Carrier further violated the Agreement when it failed to notify Claimant of the discipline assessed as provided for in Rule 26.


      3. The Carrier shall now- be required to restore Claimant's seniority is the appropriate Machine Operator's seniority classes and Claimant shallbe compensated for any and all wage loss suffered.


F I N D I N G S The Claimant was a Group III Machine Operator with seven years' experience in this-position at the time of the incident here under review. On July 31, 1988 he was the operator of a ballast regulator machine. During thecourse of operation that day, the motor on the ballas=t regulator "blew", causing
 PLB No. 4370
 · Award No. 28
 Page 2
 extensive internal damage. The cause_of the incident was
 attributed to-lack of_oil in-the motor.
 As a result, the Claimant-was,--subject to an investigative
 hearing to determine his responsibility, if any, "in con
 nection with your alleged failure tomaintain.Ballast/Regulator
 at Channing, Texas on July 31, 1988." Following the hearing,
 the Claimant was assessed the -disciplinary penalty of loss
 of machine operator's rights and seniority.
 In the Board's view, there was insufficient evidence
 to determine with a reasonable degree of certai=nty that the
 Claimant had failed to maintain gil, in .the,ballas,t, regulator.-,
 The Claimant admitted- his responsibility as to certain main
 tenance functions, which included checking on oil level. He
      stated, however, that he had not -failed. to do__this..--,--

      The Supervisor, Work Equipment testified to "ten" engines having "blown" within the year. In-this instance, he stated:-- "I'm not saying that (the Claimant]_-did the damage to this engine. I'm saying it was out of oil." A SurfacingGang Mechanic was asked if th,are.was "any oil, noticed on the ground in and around where [-the machine] stopped". He replied, "There was . . . from the house track switch to where the . . . ballast-regulator had stopped, there was a,. . . small - stream of oil from there in between the rails.." This would

                                    PLB No. 4370

                                    Award No. 28

                                    Page 3


appear to suggest some other problem not attributable to the Claimant.
 The Board finds 'the record does not provide convincingevidenceof the Claimant's responsibility for the damage to-. - the ballast regulator. The claim will be sustained. Reimbursement for back pay-shall- be limited to the difference, if any, between the Claimant's rate of pay as a Group III Machine Operator and that rate at which he was paid for the hours which he worked since his loss of-machine operator rights. His machine operator rights and seniority shall be restored as if the discipline had not been applied.
 As a procedural matter, the Organization claims that the Claimant was not served notice of the discipline and that the Carrier was therefore in violation of Rule 26 (a) which states in reference to disciplinary investigations as follows:

          Decision will be rendered within thirty (30)

      days after the completion of the investigation.


The record shows that a letter was sent to the General Chairman, with copy indicated-to the Claimant, on August 14, 1989, six days -after the hearing date. Even if the Claimant did not receive such copy (or it was not sent), the Organ-
                                    PLB No. 4370

                                    Award No. 28

                                    Page 4


ization received the letter in ample time to initiate a claim - on the Claimant's behalf. Clearly, the decision was "rendered" within 30 days, and the Claimant's apparent failure to receive a copy of the letter was without_significant consequence.

                      A W A R D

Claim sustained to the extent provided in the Finidngs. The Carrier is directed- to put this Award into effect within thirty (30) days of the date of this Award.

      HERBERT L. MARX, JR., Neutral Referee


NEW YORK, N. Y. DATED: July 3, 1991