NATIONAL MEDIATT_ON BOAR
PUBLIC LAW BOARD NO. 4768
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
and
BURLINGTON NORTHERN RAILWAY COMPANY
AWARD NO. 54
Carrier File No. 4 MWA 900807
Organization File No. C-90-D070-3
STATEMENT OF CLAIM
1. The dismissal of Trackman P. Guerrero for
alleged violation of Rules 2, 564 and 574 of the
Burlington Northern Railroad
'1
. . by your dishonesty
and failure to report rules violation in connection with
the substitution of Remidios Lopez working in place of
Manuel Guerrero during the period of May 11, 1989, to
December 1, 1989" was arbitrary, excessive and in
violation of the Agreement.
2. The Claimant shall be reinstated to service with
seniority and all rights and benefits unimpaired, his
record cleared of the charges leveled against him and he
shall be compensated for all wage loss suffered.
F I N D I N G S
Following an investigative hearing, the Claimant was dismissed
from service for his "dishonesty and failure to report rules
violation in connection with the substitution of Remidios Lopez
working in place of Manuel Guerrero [the Claimant's brother] during
the period of May 11, 1989 to December 1, 1989".
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The investigative hearing was originally scheduled within the
required 15 days. Before such date, however, the Carrier postponed
the hearing to a date two weeks later. The Organization argues
that this invalidates the hearing and its results. The Board
notes, however, that no protest as to the short delay in hearing
was made prior to or, more significantly, at the hearing itself.
Since there was no perceived harm to the Claimant's defense, the
Board in this instance finds no basis to invalidate the hearing.
The record clearly demonstrates the Claimant's role in having
knowledge of and assisting in deceiving the Carrier in the
substitution of a person without employee status for that of the
employee recalled to service. The offense is serious, and the
Carrier's dismissal action was a reasonable result.
A W A R D
Claim denied.
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HERBERT L. MARX, Jr, Chairman and Neut al Member
G1
MARK . S P AUGH, mpl a Member
AP
NEW YORK, NY
DATED
-2-