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

      1. The Carrier violated the Agreement when Claimant A. Vigil (1235720)

          was dismissed from service for violation of Rules 1.6 - Conduct and

          Rule 1.25 - Credit or Property, Engineering Instructions 21.4.2 -

          Changing or Canceling Reservations (formerly 21.4.5). It was

          claimed that Mr. Vigil used company credit to pay for a hotel room

          when he was not performing any work on July 9 and 10, 2008. The

          Claimant should be paid for all wages lost and made whole

          commencing August 22, 2008 and continuing forward until returned

          to Work. The discipline was excessive.


      2. As a consequence of the violation referred to in part 1 the Carrier

shall immediately correct the Claimants discipline records and make
 Claimants whole for all time lost.
 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 were given due notice of
 the hearing thereon.
 This is the second Investigation for Claimant that was held July 25, 2008.
 The letter setting an Investigation for Claimant reads as follows:

    "...to develop the facts and place responsibility, if any, in possible violation of Rules 1.6 and 1.25 of Maintenance of Way Operating Rules, effective October 31, 2004, and Engineering Instructions 21.4.5, effective April 1, 2007, as supplemented or amended. In connection with your alleged having a motel room in Belen, New Mexico on the nights of July 9, & 101", 2008 when you were not working, while working as a Foreman on Switch Maintenance Gang on the Clovis Subdivision."

                    PLB NO. 5850


Page 2 Award No.
                                              Case No. 362


July 9t" and 10th were workdays number 3 and 4 of a four day workweek.

Claimant contends he was sick and that he called his Supervisor for permission to be off, which was granted. Although he did not work on the 9t", he stayed in the hotel at the Carrier's expense but without Carrier's approval. When Claimant received permission to be off, he told his Supervisor that he still was in the room to which he was assigned and he stated his Super<risor knew I;e vvas in the hotel 0i the 9t".

The hotel charged the Carrier lodging for July 9t" although he was not eligible for a room at the Carrier's expense. On July 10~", he did not stay in the hotel, yet the hotel billed the Carrier for that day also.

Obviously Claimant did not check out, nor did he inform the hotel the circumstances for staying in the room, and even though he asked a fellow Laborer to check him out, it was not done. The bill for the 9t" and 10'"was the responsibility of Claimant, not the Carrier. The Carrier terminated Claimant's service. The improper use of the Carrier's credit or credit cards is stealing and is a major offense.


                        AWARD


      Claim denied.

                        ORDER

This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.


              6W44~-- 4,L-Pla-

              Robert L. Hicks, Chairman & eutral Member


                        J


David D. Ta ner For the Employees ienn W. Caughron, or th arrier
 Dated: