PARTIES TO DISP":

STATEME T QF CLAIM:

PUBLIC LAW BOARD Ho. 6850

(Brotherhood of Maintenance of Way Employee

(The Burlington Northern Santa Fe Railroad (Former
(ATSF Railway Company)

Award No.
Case No. 327

'the Carder violated the Agreement on July 18, 2006 when Claimant, JO Malone (6462700) wear dismissed for violation of Maintenance of Way Operating Rules 1.1.1; 1.6 and 6,60 when the Claimant failed to yield right of way to vehicle traffic at public road crossing located at MP 718.93 on. Slaton Sub-Division. Claimant later reinstated on leniency basis on December 28, , and;

As a consequence of the violation referred to in part '1 the Carrier shall pay all wage loss commencing October 6, 2006, continued to his return and remove any mention of discipline from his record.

Upon the whole record and all the evidence. the Board finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Act, its amended. Further, the Board is duly constituted by Agreement, has judsdietlon of the

Parties and of the subject matter, and the Patties to this dispute was given due notice of

the hearing thereon.

4n September 11, 2006, the Carrier !wrote Claimant advising an Investigation was

being convened:

"...to develop the facts and place re=sponsibility, if any, In connection with your possible violation of Ruie(s)1.1.x, 1.6 and 6.50.2, of the Maintenance of Way Operating Rules, in effect October 31, 2004, as supplemented or amended, concerning your alleged failure to yield the right of way to vehicle traffic at a public crossing at MIA 718.93 on the SIaton Subdivision causing an accident resulting in damage to BMSF vehicle 18180 as well as

PLB NO. 5850
Page 2 Award 110.

Case No. 327

injury to driver and dge to privately owned vehicle in excess of $16,600 at 1316 hours, on September T. 2606, on the Kansas Division, while

assigned as Track Supervisor headquartered at Lubbock, TX."

On October 5, 2006, , Carrier wrote Claimant advising that as a result of the September 22, 2006, investigation, his services with the Carrier were terminated.

During the on-property handling, Claimant wear reinstated on a leniency basis on December 26, 2006. To regain h1$ seniority, he signed the following letter:

"This letter Is to advise you that you are being reinstated to service

effective December 28, 2006, on the Kansas Division.

It Is understood that your,

reinstatement Is on a leniency basis with seniority and vacation rights unimpaired and without

pat

tar time lost or

any further appeal. Upon your reinstatement you will tie allowed to displace per Rule 13 - (h) part 3, which states in part:

Restricted to a lower class ivy which he holds seniority by being permitted to displace the junior employee in such lower class.

Your personal record

at the tune of reinstatement wilt stand with a Level S

and three (3) year review period. If you commit

another

,serious

rule violation during the tenure of this review period, you will be subject to dismissal.

This totter will be placed on your personal file. Your signing below serves as receipt and agreement of thins reinstatement as stated above,."

A preview of the transcript clearly shows Claimant was negligent at the crossing resulting in a $30,000 loss of equipment he was driving. Although he has a light record, he also Is a veteran of about 28 years and had been a Track Supervisor for about 11 years prior to thin incident.

He was negligent In not ensuring the traffic was clear when he ran into a pickup truck. Fortunately, no one was hurt. The time out of service was over 90 days, but in view of the seriousness of the accident, the tune out of service will stand.

Page

PLB NO. 5850

Claim denied.

Award No.
Case No. 327

This Board, after consideration of the dispute identified above, hereby orders that

an award favorable tar the Clximant(s) not be made.

//,~4~".9-a `~s~?~

Rabert 1. Micka, Chairman & Neutral Member

C er zc~c .eg

eg

David D. Tanner, For the Employ

Dated: /6/f4,,/0,S

Samara Rogers, Far a Otaffier