PUBLIC LAW BOARD NO. 5850
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(The Burlington Northern Santa Fe Railroad (Forma
(ATSF Railway Company)
STATEMENT OF CLAIM:
1. The Carrier violated the Agreement when Claimant, J. B. Martin, was
assessed a 30-day Level S record suspension with a 12-month
review period, on June 7, 2008 for alleged violation of Maintenance of
Way Operating Rules 1.6, 1.15, and 1.25 for misuse of Company
credit and equipment (leased front-end loader(; and
2. As a consequence of the violation referred to hi part 1 tire Carrier
shall Immedlately return the Claimant to service with soniority,
vacation and all other rights unimpahed, remove any mention of this
incident from Claimant's personal record, and make ClamaM whole
for ail One lost commencing June 7, 2006.
FINDIN
GS
Upon the whole record and ail the evidence, the 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 constituted 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 April 28, 2006, the Canier wrote Claimant advising him an Investigation was
being convened:
"..Jo determine the facts and place responsibility, If any, in connection
with your possibly violation of Rule(*) 1.6, 1.19 and 1.25, of the
Maintenance of Way Operating Rules, in ef(yct October 31, 2004, as
supplemented or amended, concerning your alleged misuse of BNSF
leased Front-End Loader and credit card when you allegedly used BNSF
leased Front-End Loader for your personal use of various occasions in
Page 2
IFLZ
~4ti
, Se)5-a
Award No.
Case No. 314
2008.."
The Carrier following the Investigation assessed Claimant a 30-day record
assessment (no lost wages involved) and a review period of one year.
A review of the transcript finds Claimant, on several occasions, parked the frontend loader on his property and did use same for some hour and thirty minutes. This he
freely admitted to. The use was personal. He did not profit from It.
It seems the practice of parking the front-end loader on his property on occasion
(no testimony about how often this occurred or when It began) leads this Board to
believe this may have boon somewhat of a past practice that went unreported.
However. a past practice In violation of a Rule does not and cannot change a
Rule. No Carrier's Officer can authorizs a Rule violation yet this did occur, apparently,
but there is no evidence the Roadmaster in charge at the time of the incident had any
prior knowledge of the practice that started before she was assigned.
Because Ciaknant readily admitted his personal use of the equipment without
authority, he is in violation of Rule 1.19 which reads In pertinent part, "Empioyeas must
not use railroad property for their personal use."
A review of Claknant's discipline record reveals two entries within two months for
which nothing more than a record mark was assessed. Some eleven years later, another
record suspension and a review after one year as was assessed In this Instance.
Claimant has already been reviewed and a note of the discipline assessed
recorded, however the neferenrce to a misuse of a credit cart! must be deleted. There is
no evidence of any such violation.
Page 3 ?L
5
PAD . $$ $b Award No.
Case No. 314
AWARD
Claim sustained In accordance with the Findings.
ORDER
This Board, after consideration of the dispute Identified above, hereby order: that
an award favorable to the Ciaimant(s) be made. The Carrier Is ordered to make the
award effective on or before 30 days folkriving the daft the award Is adopted.
Robert L. Hicks, Chairmen d, Neutral Member
GGr rrE / l J .~~ ~ `~
a~D. Tanner For the E
mpioyees Samantha Rogers, For Carrier
Dated: