HROTEIFREIOOD ()F MAINTENANCE OF WAY
 EMPLOYES DIVISION - 113T RAIL CONFERENCE

 vs

 BNSF RAILWAY COMPANY



STATEMENT OF CLAIM:









FINDINGS:

Public Law Board No. 7048, upon the whole record and all the evidence, finds and holds that Employee and Carrier are employee and carrier within the meaning of the Railway Labor :1ct a, amended; and that the Board has jurisdiction over the dispute herein; and that the parties to the dispute have participated in accordance to the Agreement that established the Board-


On 1·ehruary 17, 2011. Claimant was directed to attend a tbrmal Investigation tin February 2=t. 2()11, which was mutually postponed until March 8, ?OH. after which it te=as accessed and reconvened on March 3t), 2001. concerning in pertinent part the t61lowing charge:





    "...for the purpose of ascertaining the facts and determining your responsibilitN, if any, in connection with your alleged report <>f a multiple work group clear of Form 13 limits with no notification from the Employee In Charge of that work group clear and, documentation of an incorrect time clear on Form I3 #6014 before the Employee In Charge of that work group reported clear, on the Lafayette Subdivision, at Mile Post 155 in Duson, Louisiana, on Monday, February 14. 2011 at approximately 1515 hours, resulting in a Critical Rule Violation and, violation of ;Maintenance of Way Operating Rule 6.3, Track Occupancy ...."


t )n :April '9, 21011, Claimant was notified that he had been tOund guilty as charged and was assessed a Level S i0-Day Record Suspension with a three year probationary period.


It Is the Organization's position that the Carrier did not meet its burden of proof'. It ari-!ued that the record reveals that there was a mis-communication wherein someone identified themselves as Assistant Roadnlaster Wilson told released their protection to the Claimant. It was ,mg gesicd that Foreman llopkins may have inadvertently done it. thus, it was reasoned tile Claimant was not at fault when he released Wilson's protection at 151 S on February 14, ?011, It concluded by requesting that the discipline be rescinded and the claim sustained as presented.


It is the position of the Carrier that on February 14th, tile Claimant was handling the Form 13 protection for himselfand other gangs. It asserted that two of the gangs in the multiple authority protected by the C'laimant's Form 13 were Assistant Rc~admaster l`. Wilson and Foreman S. llopkins. It argued that it was determined during the hearing that the Claimant did not vcrif'y who he was talking to at 1515 and cleared Mr. Wilson from the Form F3. even though Wilson and his fang were still on the track working, It further stated that it was not until the Dispatcher got involved at 1 25 and had a three way conversation with the Claimant and Wilson that it was determined that Wilson and his crew had been unprotected fir 10 minutes. It further argued that it was discovered during Mr. Wilson's testimony when he submitted his itemized cell phone hill t«r the time period in dispute that there were no calls placed to the Claimant between 1515 end 15?5, verifying he had not asked the Claimant to release him from the Form 13 protection and Claimant admitted his telephone number was not on Wilson's cell phone bill. It closed by asking that the discipline not be disturbed and the claim remain denied as the Claimant had left employees and equipment working on a track without protection.


The Board has thoroughly reviewed the transcript arc! record of evidence and haw determined that the Investigation and appeal process met the guidelines of Rule Off the Discipline lZule of the former BN Agreement and Claimant was atllorded his "due process" Agreement rights.


      ['here is tit) dispute between the parties that Assistant Roadmasier Wilson and his gang

were unprotected from 1515 to 1525 on February 14. 20 1 1. Me Claimant testified on page 4i) of`
                                P.L.B. No. 7048

                                .ward No. 94, Case No. 9-t

                                Page 3


the transcript he talked to someone who identified himself as Assistant l~oadrnastcr Wilson requesting that he be removed from protection.


On pages ?9 - 36 of the transcript Roadmastcr R. Baker testified that he had interviewed :ill ofthe employees involved in the incident under investigation shortly after its occurrence as to ~,0iat had transpired. Baker was further questioned about sonic ;additional information he acquired later about the incident as follows:


    "Brian 'l'. Poston: Did you have any subsequent conversation with Mr. Hopkins concerning this event?


    Raymond Baker: Cfh, not that day, but a couple of days later, yes. lie called me and he said that after talking to Jack at the motel, that he may have been so busy and Jack might have said is this Wilson and he might have said yes."


      i )n pages 48 of the transcript Foreman f lopkins was questioned as follows:


      "Brian Poston: Was there ever any confusion about who he was talking to? Specifically, did, uh, either you or Mr. Ruggles, uh, have any confusion about it was Wilson of if it was 1lopkins?


      Shawn Hopkins- l just figured he knew my voice and that I was Hopkins so, like t said, I called him to release it and get off the Form I3. And then when he called me back I said, Jack., I already. released at I5IT.(Underlining Board's emphusisl


The record is clear Assistant Roadmaster Wilson never called the Claimant to be released
 trorn the Form 13 protection whereas Foreman Napkins did. There was no showing in the record
 that anyone called the Claimant after his first conversation with flopkins. Instead the transcript
 substantiates that after llopkins requested the release the Claimant then called llopkins back
 because he thought he had conversed with Wilson, but when I lopkins told the Claimant that fie
 had previously been released the Claimant should have realized that tic had mistakenly released
 Wilson rather than Hopkins. Assuming for the sake of argument that Hopkins might have said
 something to the Claimant in their first phone call that made the; Claimant think he was talking to
 Wilson the Claimant should have recognized after the: second call that both of his conversations
 were with fl«pkins arid he should have taken immediate action to protect Wilson and his crew.
 The Board will not reiterate any other arguments of the parties as the Carrier's rendition of the
 facts and its other arguments are on point and further validate the fact that the: Claimant left
 Wilson arid his crew and equipment working on a track without Dorm 13 protection. Substantial
 evidence was adduced at the Investigation that the Claimant was guilty as charged.
                                P.L.B. Rio. 7048

                                .-·w arriNor. 94, Case No. 94

                                ['age 4


    The only issue remaining is whether the discipline was appropriate. At the time of the

I 'dcnt the Claimant had approximately '38 years ofservice with I prior disciplines with his
 tic) I I I I I
 most recent discipline being similar to the instant case wherein he was assessed a Record
 Suspension in October 2010 for failure to provide proper protection for his work group that
 resulted in one of his employees being cut of his limits. The discipline assessed against the
 Claimant in this instance will not be set aside as it was in accordance with the: Carrier's Policy for
 la;mpioyee Per'ormancc Accountability (PEPA) and it was nut excessive, arbitrary «r capricious.
 l-he claim will remain denied.

                AWARD


      Claim denied.


          William R. Miller. Chairman &Neutral ember


Samantha Rogers. Carrier*mber David U. Tanner, Frnployee Member

 Award Date: