(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (The Burlington Northern Santa Fe RiWiroad (Former (ATSF Railway Company) STATEMENT 4F CLAIM:









shall lmrnrwdlatehr return the Claimants to service with seniority,
 vacation and all other rights unimpaired, rentiove any mention of this
 incident from Claimants personal records and make Claimants whole
 for all time lost commencing June 28, 2007, the date Claimants were
 Initially withhold from service pending inwsbgation.
 FINDINGS
 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, 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 wens given due notice of the hearing thereon.
 On June 28, 2007, the Carrier wrote a joint letter to Claimants Romero and Suva advising an investigation was being convened:
Page 2 PLB NO. 5850 Award No.

      possible violation of Rules 1.6 and 1.13 of Maintenance of Way Operating

    Rules effective October 31, 2011'!, and Ruler 8-1.3.1 of the Maintenance of

    Way Safety Rules, in effect October 30, 2005, as supplemented or

    amended, concerning your alleged failure to comply with Instructions

    concerning welding procedures, your alleged failure to use required

    personal protective equipment and your alleged inappropriate conduct

    when receiving insons concerning same while working as welders on

    June M 2007, Seligman Subdivision.


        You are withheld from service pending the results of this formal

      investigation."

On August 7. 2007, the Carrier advised both Claimants In a joint letter that they were dismissed from service.

The Carrier assigned a Supervisor to oversee the welding operation. Where problems were found he was to work with the welders. While welding switch points, the welders first have to grind out the cold cracks then build the frog points up to the Carries standard.

The Carrier's first witness was a relief Roadmaster in charge of the territory wherein the alleged violations occunsd. He testified to what the Senior Welder overseeing the work of the Claimants who wen working as a team. He related what the Senior Welder told him on the phone, but most of the testimony was secondhand.


    The Acting Roadmaster drove to the scene. He testified as to what he saw. He

stated he saw Claimant Romero was grinding but his face shield was up. It should have been down and he should have had his goggles on.' He only had his safety glasses on. Claimant Suva was acting as a lookout but wars within three feet of Romero. Silva was not wearing his leg protectors. Sparks from the grinder were thrown In his direction. He could have suffered leg burns. The Acting Roadraster shut down the Claimants' operation and directed them away from any potential injury.

Page 3 PLB NO. 5850 Award No.

                                            Case No. 339


The testimony of the Senior Welder on site who was instructed to work with and oven*ee the welding being done by the Claimants Is convincing.

Regarding the failure to wear (PPE) personal protective equipment, the Senior Welder testifiled that Silva was grinding without protective leggings. When told he needed his leggings on, he was in a crouched position. He stood up, looked at the Senior Welder, dropped the grinder that was still on from roughly a two foot height and walked away.

Regarding Claimant Ronmro, when he was grinding the Senior Welder pointed out that they had not ground all the cracks out. Claimant Romero stood up and throw the welding chair on the field side of the track which ended up behind the welding truck.

Insubordination can be a loud In-your-face reaction to some Instructions, or it ran be subtle, like not responding to inabwctions.

When Claimant Suva had to be told twice to get his leggings on, he was insubordinate. When Claimant Romero, after being told there still existed a crack In the switch point that had to be ground out, throw the welding chair behind the welding truck, it was an insubordinate act.

Clearly, both Claimants are guilty as charged. The Carrier clearly established each Clahnant's culpability for the charges assessed.

The dismissal is not out of line. Throwing tool: (including the special chair, requiring Instructions to be restated, and failure to wear PPE gear were clearly established.

Each Claimant was relatively new to the system, especially to the welding process.

Page

 PLB NO. 5850

 Award No.
Case No. 338
Under the circumstances, this Board can find no redeeming qualifications to either sustain the claim in its entirety or to change the dismissals to long suspensions.
AWARD
Claim denied.

 ORDER
This Board, after consideration of the dispute Identified above, hereby orders that
an award favorable to the Clahnant(a) not be made.
gur%A 4

 Robert L. ks, Chairman A Neutral Member
David D. Tanner, For the Employees
 Dated: 3 h`do
Samantha Ropers, For carrier