PUBLIC LAW BOARD NO. 5860

Case No. 336 (Brotherhood of Maintenance of Way Employes

 (The Burlington Northern Santa Fe Railroad (Former (ATSF Railway Company) STATEMENT OF CLAIM.,













Upon the whole record and ail the evidence, the Board finds that the parties herein are Carrier and Employee within the moaning 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 wore given due notice of the hearing thereon.
 The Carrier wrote Claimant an February 23, 2008, advising an investigation was being convened:

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work on it, at MP 442.6 on Main 2, on February 7, 2008 at approximately 1520 hours MST, while employed as a machine operator on RP17 working on the Seligman Subdivision." The Investigation was held on March 13, 2008, and an April 4, 2008, the Carrier notified Claimant he was being assessed a 30-day record suspension with a one year probationary period. The Rule alleged violated was the tagoutliockout Instructions which cover several pages. Those parts of the tagoutilockout instructions germane to this incident, read as follows:



    1. Normal equipment operation requires lockouf/tagout when:


        r A guard or safety device is removed or by-passed.


          Any part of an employee's body is placed in a point-ofoperation.


          Any part of an employee's body Is placed In an associated danger zone during a machine operating cycle."

Three employees, the Claimant and two Machinists, were working an a gauge %piker doing some welding an the top right side of the spiker.
 Two Supervisors were checking to see if the steel gang employees were working safety.
 When they saw the three employees working on the splker, they checked the tag and locks and found only two locks and tags. There was no lock or tag for Claimant who
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                                          Case No. 336


was the Machine Operator.

The two Mechanics were on ft machine performing repair work with Claimant standing along the side handing welding rods to the one Machinist sitting on top of the machine.

One of the Machinists had been working as an Instructor of the tagoutfiockout procedure. He testified that at no time was Ciamant placed in a point of operation, nor was any part of Cialmant's body placed in an associated danger zone, nor did either of the Supervisors who were safety checking testify that they saw Claimant in a position of danger.

The Interrogating officer queried the Machinist with a number of "what if" questions, all hypothetical.

The Machinist instructor working on the apiker denied all the "what if" questions. He fully believed Claimant was in no danger and that it was not required of him to place a lock and tag on the spiker.

As required in ail discipline cases, the Cattier must fumish sufficient evidence of a Rules violation. The two Supervisors simply saw three employees on or near the spiker. Neither testified that they witnessed Claimant piece his body in a position of danger. If they had witnessed such action by Claimant and could so testify, It would not have been necessary for the interrogating officer asking all the "what if" questions.

The Carrier failed to furnish sufficient evidence of a Rules violation. This has not boon accomplished in this investigation.


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      Claim sustained.

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 This Board, after consideration of the dispute Identified above, hereby orders that an award favorable to the Ciaimant(s) be made. The Carrier is ordered to make the award effective on or before 39 days following the date tha award is adopted.

 NRobertt,. Hicks, Chairman & Neutral Member

 david D. Tanner, Far the Employees

 gated:

 Samantha Rogens, For the r crier