PARTIES TQ DISPUTE
 (The Burlington Northern Santa Fe Railroad (Former (ATSF Railway Company) STATEMENT F~:

      1. The Carrier violated the Agreement on December 20, 2004, when it

          issued the Claimant, Mr. J. C. Sheppard, a Formal Reprimand for

          allegedly asking for favors from fuel suppliers in exchange for

          patronage, In violation of Maintenance of Way Safety Rule S 26.1,

          Conflict of Interest.


      2. An a consequence of the violation referred to In part (1), the Carrier

shall Immediately remove any mention of this Incident from his
 personal record, and make him whole for all wages lost account of
 this Incident.
 FINDINGS
 Upon the whole record and all the evidence, doe Board finds that the parties
 herein are carrier and employee within the meaning of the Railway Labor Act, as
 amended, Further, the Board is duly consUtubed by Agreement, has jurisdiction of the
 Parties and of the subject matter, and the Parties to this dispute were given due notice of
 the hearing thereon.
 On November 9, 2004, the Carrier advised Claimant that an Investigation was
 being established:

    "...for your alleged faliure to avoid a conflict of Interest, when you allegedly asked fuel suppliers for steaks, fish or hats In return for Burlington Northern Santa Fe business on June 28, 2004 in Burlington, IA and August 25, 2004 M Canton, MO, while assigned as Truck Driver on TP03, which was reported to this office on November 8, 2004." After the Investigation, the Carrier on December 20, 2004, believed they had

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established Clalmant's culpability for the charges assessed and disciplined him by issuing a formal reprimand that is intended to stay In his discipline file. The discipline reads:
 "Formal Reprimand ...concertring asking fuel suppliers for steaks, fish or hats in return for tiNSF business on dune 20 & August 25, 2004." Claimant at the time of the incident was and s= may be a truck driver assigned to drive a fuel truck to ensure the vehicles and machinery the gang is using are property fueled. He has boon assigned a so-called "pro-card" which permits him to charge the cost of fuel and supplies to the Carrier. Teadfyirtg as a Carrier witness was the owner of the Mendenhall t?it Company. He stated at the Investigation as follows:

      "And then on Monday morning, Mr. Sheppard came Into our office, took care of the paperwork, as be, as he normally does. And during the conversation asked, and, and you know, I want to be very up front, we've given baseball caps away before, previous years. Mr. Sheppard asked ff we had any baseball caps, and I said no, we d0 not They've become too expensive. We don't give them away anymore, And then on down, during the conversation, he indicated that some of his suppliers gave fish and, and steaks away, you know, If you kept coming back. And I said, well, 1 don't do that You know, I don% 1 don't even give caps away anymore. And, you know, my secretary was them when this conversation was going on. And she would verify that this, you know, same conversation. Anyway Mr. Sheppard indicated that he would, he would be back to buy more fuel because it was probably, they were working on what was called the K Line between Burlington and Quincy or Burlington and Hannibal. I'm not sure where It goes, and that they would be back to buy fuel and possibly motor oils. I didn't see him again. He didn't come back."

The aftrequoted appears to confirm Carrier's charges, but this witness displayed an attitude of unhappiness with the Carrier and with his business in general. He at first Indicated the Carrier was a good customer, then later complained he had special ordered material he hard no real use for that some Carrier representative requested that was


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never picked up and shat he was stuck with. When asked if the Carrier promptly paid t bills, he admitted at tines the payments for services were not that prompt.

Ciaknant teatfed that when he arrived on the property on June 20, he saw a for sale sign and inquired about IL The Carrier witness testitfed only the tank or truck

business was for sale, but he stilt owned the bulk business, Claimant further bestrilad hurt the witness related to him that he bought a large quarrftty of fuel at a very high price. This leads the Board to believe that this wiliness was perturbed by the high price of the fuel he purchased and was further dhsfurbed when Claimant stated they would be working the area for the next several weeks. Perhaps, this witness was somewhat hostile when Claimant never returned so he could unload some of the high priced fired.

The Carrier investigator could only find two krstsnces of four dealers where Claimant asked for baseball caps and about receiving fish. That dealer stated his tattler was a commercial fisherman and that he did give out fish to his good customers. H the fish was in a:change for Csniees business, it was never eslabitshed.

The only reference to steaks was what Claimant allegedly salt to the Carrier witness. No other ratMatton for that charge has been established.


      Claimant's accuser in his written statement alleged as follows:


    "Monday. June 28, he returned to our office to complete the paperwork. Asked If we had extra baseball caps to give away. Our answer was no, we don't give away caps any longer, too expensive. They asked If we had any fish fillets or steaks to give away Instead. My answer was no, maybe you are in the wrong place."


Whereas in his testimony he said:

    "And then on down, during the conversation, he indicated that some of his suppliers gave fish and steaks away-ff you kept coming back ...."


    Claimant may have left ate impression that because the crew would be working in

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the neighborhood, he would return for more fuel. Claimant did not return as the next day, June 29, he purchased fuel from another dealer for 27 cents leas per gallon than Mendenhall was selling it for.

Perhaps, CIaMmant's chit chat would lead one to believe that he was using the Carrier's need for fuel and supplies to garner for himself some "freebies" such as steaks, fish andlor caps, but this Board believes there Is no evidence of Claimant directly using his purchasing power to garner these fresblSS.

1t is this Board's position that the record mark be removed from his disciplinary tile and the reprimand placed in his general Ale to be considered nothing other than a cautionary letter.


                          AWARD


      Claim sustained in accordance with the Findings.


                          ORDER

This Board, after consideration of the dispute Identttfed above. hereby orders that an award favorable to the Claimants) be made. The Carrier is ordered to make the . sward affective on or before 30 days following the date the award is adopted.


                            J

              Robert L. Nick*, Chairman & Neutral Member


Rick B. Wehril, Labor Member rlliam L. Yeck, Carrier m r

 Dated; ~~.~.~©~ZOO~