(Brotherhood of Maintenance ofWayEmpbyes

(TM Buriinpbdn Narthem Banta Fe Railroad

1. The Carrier violated the ABroerrrnt when on February r, 2001, Mr. fiR. W. Absher was nmowd from service and subaequendy dismiss" from service on March tl, 2001 fbr allegedly violating Maintenance of Walt Operating Rule 1.12 to conjunction with his aiieqsdiy having s firearm in his possession while on duty and while an BNSF property on February 1, 2001.

2. As a consequence of the Carrier's violation refrrrsd to above Mr. Abaher shall be returned to service, the discipline ohs@ be rertwvsd from Mr. Absher's personal record and he shag be compensated for ail wipes lost, M any, in accordance with die Agreement.

Upon the whole record and ati the evidence, the Board finds that the parties heroin am carrier and employee within the meaning of the Railway Labor pct, as amended. Further, the Board is duly constituted by Aiyreement, has jurisdiction of the Parties and of the subject miller, and the Parties to this dispute wen given due notice of the hearing thereon.

This b no dispute. Claimant did have a firearm In his possession while on company property on duty and under pay without the authorization required by the fiAaMbnance of Way Operating Rule 1.12.

He used that weapon m execute a citiren's arrest of two rren who he had witnssed Arinq shotguns out of a truck cab window. There is no indfcstion of what they

It d*v*optd that Claimant errs, in addition to being a track Patrolman for the Carrrer, a Caiifomia Correction ar who wets actthorlaed by tale state to carry ;rr concealed weapon.

The controversy that must bar resolved !s whether soma of the Carrier officiabr know for a tame triat Claimant was carrying while on duty on company property even though Ruts 1.12 bans such action unless the individual has authorization from the Carrier, which he did not hays.

In addtttat to a Rule 1.12 violation, Claimant was charged with having employment away from the railroad without the proper authorization, but able charge was dropped wf7sn it was established that Caviar aMlcials krrw of We tact arid the MW to halo an investigation had axpi»d

it is Interesting to note that in 1 gK Claimant was granted a leave of absence from July 24. 1995 to September 3, 1995, for the purpose of attending the police aced:my.

Claimant argued drat other offlcls·s on the property knew Claimant canted a concealed weapon white working. but he started they warts apprehensive of iestNyinp fearing for great fob. Claimant did &>wtroduce a statement irom a retired Senior Special Agent of the Carrier. That statement reads in pertinent pare

"it was a known fact among eN3F Polkas personnel and other BNSF

employees drat lilacs carried s concealed weapon whoa on duty with the

8N8F Railway. He never displayed the weapon in a1! the time I've known

him. As a swam Peace Officer In the State of California, state law gives

him authority to carry a concealed weapon.

8N8F reriaa state dart sash employ" is responsible to pmtsc#ind

railroad property. Persons using firearms Illegally In the Cajon Pass area

quite regularly vandalize signal equipment and MOW equipment I believe

Mace USHER probably prevented who knows how many criminal acre

Case No. 182

front being aaessmagrtnst the B NSF Railway. Hoe should be

CCin'1n'w! Ii`t of condemned for pr t#ttg ONSF Railway property.*

In 1nv"n, the Chief Special Agent testifying tar the Carrier read a letter

he wrote the Division Engr relaying the police report t roprdlng the two people cited

and apprahendod by Cirtrnarrtb which tad to part

"...augh Jkbshsr's willingness tee get Involved is camrnsndable his

carrying an uneuthorttad firearm while on duty niniatss this ...."

?tar iatiar the went on to say that this matter was being forwarded to the Division Engineer as Claimant did appear to be #n violation at Rule 1.12.

Claimant when asked K he beloved he had written permission to carry a tfraann,

responded by saying tare Rule, is stient as tea whether the authorization was to be written, and since others in supervisory allUm know of Ciaknant's side line know he carried a !#rearm either on his person or to the company truck, and net one person warned him that It was a Rule violation.

Under the facts adduced at the Investigation, It is clear Claimant was In violation of Rule 1.12. K ha had authartxat#an, the party authorizing the weapon possession would bare beatified in Claimant's behalf, but this did not happen.

This Bard under normal circumstances in determining guilt would hays had no problem #n upholding the discipline of dlsrnissai. The Carrier cannot turn Its back an a charge of being in violation at Rule 1.12, but this in a unique situation.

Claimant is a Corrections Officer fat the State of Ca#Kornia who can carry a concealed weapon most any place In the state other than an this Carrier ever: # he is trained #n thw use thereof. But Claimant did act in the beat interests of this Carrier in affecting a citizen's arrest to trespassers on the Carrtar's property. Ha has been bath

rawiwrv nv.

Case No. 182

.

praised and damned. His rend consists of one discipline entry since he commenced service rvph the Carrier. It 1s also noted that otrian on the property knew Claimant was carrying but sewer warned him of the consequences even though Rule 1.12 is clear.
Under the clrturnatencsa unique to this case, Clairnant Is to be returned to service with SO his seniority indrct, but without any pay for tlrm last.
Claimant is warned that K hi is found to be carrying a Anearm either In the company's truck of in his own car while it is on company property or upon himself while on company property, he wig be subject to the uittmate dlsciptlnf of diarnisaai.

MUM

Clalm sustained In accordance with the Findings.

This Board, after Consldention of the dispute ideritilled above, hereby orders that

an award favorable to the GialrratM(a) bee made. The Carrier b ordered to make the

award effective on or bees 30 days following the data Ow award Is adopted.

L~C~t4 n~ ~~J A A

Robert L. Nicks, C 9=n >i Ne~5Fmi Member

t

hick 8. WOW. Labor Member ~Thomas W. Rohlinp. Carrier

Dated: /1/U J ,0Z ~~J ; D 0