PUBLIC LAW BOARD NO. _ _ _ _

Award No. 00

Case No. 170

(Brotherhood of Maintenance of Way Employes PARTIES TQ 12ISPt,I'1'1:

(The Burlington Northern Santa Fe Railroad

MIME

1. That the

Carrier's

decision to issue employee J. G. Peterson and M. Garcia, Jr., a Level fi Record Suspension for five (Sj days and a one year' probation was unjust

2. That the Canter now

rescind their decision and expunge all discipline, and transcripts and pay for sit wage toss as a result of an Investigation held at 10:00 a.m. on March 9, 2801 continuing forward and/or otherwise made whole, because the Carrier did not introduce substantial, credible evidence that proved that either Claimant violated the rules enumerated t» their decision, and even

tf they had violated the cute:

enumerated in the decision, a record suspension is extreme and harsh discipline under the circumstances.

3. That the Cancer 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 Claimants violated the rules enumerated to their decision.

FINDINGS

Upon the whets record and all the evidence, the Board finds that the part herein are carrier and employee within the meaning of the t3athway Labor Act, as amended. Further, the Board is duly constituted by Agreement, has jurisdiction of the Parties and of the subject matter, and the Parties to this dispute were given due notice of tlxo hearing thereon.

On February 30, 2001, the Carrier notified each Claimant of art Investigation to develop the facto concerning the work performed by each Claimant was Insufficient and

Pago 2 Award No. t ?o
Use No, 170

riot complying with FRA standards when on February 2, 2001, they tailed to replace 20 Pandroi clips after they had completed 0 welding assignment

During the Investigation. four mayor facts ware established by the Claimants:

The charge of violating specific colas on a specific data did not occur. 0n

February , 2001, neither Claimant worked at the location the Carrier fait was left Incomplete.

2. In the matter of not

inserting the i'androl clips,

it was developed theta was

s shortage of theca caps and on

the specific dates of January 2>t to February 2

and even

star,

repeated requests

were made for

these clips which did net arrive at the

work location until February 18, 2001.

3. The Carrier's contention

that each Claimant left the track to

an unsafe condition is

tempered by the tact that on the data they actually worked the

t.eGrand Switch, a Foreman was responsible for securing arid releasing the Form

0 and did so,

even without the

Installation of the

clips.

d. Regarding not building

the track

sufficiently to meet the FRA standard, one Claimant said ha had never been advised of those standards

and the

Caller

did not rebut.

The Carrier hag not sustained its burden of furnishing substantial evidence of either Claimant's responsibility for the charges assessed. In all claim and discipline matters, tour basic question: must be answered. Who did what, when and when. The when was Incorrect, thus It made the who, the what and the wham unanswered as well.

Under these circumstances, floc claim wits be sustained and traces of this Investigation are to bit removed from each Gialmant's foe, and such Claimant is to be paid for time bat as provided for in the Agreement

Claim sustained.
ORP.ER
This Board, after consideration of the dispute Identified above, hereby orders that
Page 3

Avwrd No. ~ '7Ga" No. 170

an award favorable to the C·alment(s) be made. The Carrier is ordered to make the award effective on or before 30 days following the date the award is adopted.

Robert L. Nicks, Chairman & Neutral Member

-;-~ /, LL.

B. ehrii. Labor Member

Da to d: J I' ~~ lt?~ ,2.

Thomas M. Rohlin0, Carrier MeMber