Case No. 319
(Brotherhood of Maintenance of Way Employes
(The Burlington Northern Santa
Fe Ralhoad
(Former
(ATSF Railway Company)
STATEMENT OF CLAIM:
1. The Carrier violated the Agreement when Claimant, D.k. Tenorio was
given a Level S thirty day Record Suspensfon (19 actual days and 11
days retard) when the Carrier found the Claimant to violation of
Rules 1.6, 1.7, and 1.12 of the Maintenance of Way Operating Rules
and Rule 1.2.9 of the Maintenance of Way Safety Rule 1.2.9. The
Carrier provided a vague notice and no cmdtlable evider4a of any
violation. The Claimant should be paid any toss of pay, travel time
and mileage to the Investigation, end the discipline should be
removed from his record.
2. As a conssqusnce of the violation rtrterrea to in part 1 the Carrier
shall immediately correct the Claimant's discipline record and make
Claimant whole for all 1Sme lost.
FINDINGS
Upon the whole record and all the evidence, the Board finds that the parties
herein are Carrier and Employee within the meaning at 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 March 8. 2007, the Carrier wrote Mr. D. L. Tenorio and IYIr. F. Todecheany
advising an investigation wars being convened:
" ....to develop the facts and place responsibility, ff any, In connection with
possible violation of Rules 1.6, 1.7, and 1.12 of the Maintenance of Way
operating Rules, effective October 31, 2004, and Rule 1.2.9 of the
Maintenance of Way Safety Rubs, In
affect
October 30, 2006, as
Page 2 Award No.
case
NO. 319
supptaMertted or amended, concerning report received March 2, 2007,
alleging your inappropriate and hostile conduct while assigned to Gang
RP-17, and Mr. Tenorio's alleged possession of a weapon and threatening
behavior of bodily harm towards Mr. Todecheany."
The investigation was scheduled for March 12, 2006, and was timely held.
At the outset of the Investigation, Clahnant's Representative argued that the
investigation should be hatted and Claimant be paid for ail time lost
as
Claimant did not
receive five days' advanced notice of the Investigation.
Claimant signed for the Investigation notice on March 6, 2006, as stated the
Investigation was scheduled for March 12, 2006, and was told on March 12, 2006. It Is
clear that only 4 days exist between March 6 send March 12. The data of
trig
nodes does
not toll the 8 days. The 5 days do not begin to run until March it, and counting March 8
as the first day of five,
Claimant only had a 4 day advance notice of the Investigation
which Is In violation of 40(c~
Reviewing Rule
40
In Its "Unity, Section J reads:
"if
an investigation is not held or decision rendered
with
the time
limits heroin specified, or as extended by agrood-to postponement, the
charges against the employee shall
be
considered as having been
Regardless of whether or not Claimant and his Representative carted prepared,
which Is not a valid argument, the Carrier did not abide
by
Rule 40(cj. All
charges
are
hereby considered dismissed. Claimant is to be paid any lost wages and all traces
of
this incident are to be removed from his record. The mileage and travel time sew not
supported by any known Rule. That portion of the laden Is denied.
AWARD
Claim sustained in accordance
with the
Findings.
Award No.
case No. 319
This Board, after consideration of the dispute
identffled above,
hereby
orders
that
an award favorable to the taalmant(sj be made. The Carrhw is ordered
to ranks
the
award effective on or before 30 days following the date the award is adopted,
Robert L Hicks, Chai n Nautrat tlAamber
Nr
din-id D. nner, For the Employees
Dated: LW'I-
o-.5i
aoct
Samantha Rogers, Fo Carrier