PUBLIC LAW .BOARD NO. 7564

Case No. 70/AwardNo. 70 Carrier File No. 10-16-0059

Organization File No. 16-D040-2 Claimant: Jason A. Conn

BNSF RAILWAY COMPANY )

)

-and- )

) BROTHERHOOD OF MAINTENANCE ) OF WAY EMPLOYES DIVISION )

Statement of Claim:

By letter dated October 23, 2015, Foreman Jason A. Conn was assessed a Standard IO-Day Record Suspension and a One (1) Year Review Period for an alleged violation of MWSR 12.1 Operation of Motor Vehicles. The December 4, 2015 claim from the Organization, Vice General Chairman James L. Varner, appealing the discipline, characterized the discipline as "excessive and without merit" and asked that it "be removed from his [Claimant's] records in accordance with Rule 40 of the current agreement."

Facts:

By letter dated August 24, 2015 the Claimant was informed that "An investigation has been scheduled at 1300 hours, Saturday, August 29, 2015, at the BNSF Conference Room, 1212 W. 24th St, Cheyenne, WY, 82001, for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged failure to properly operate company vehicle 21715 resulting in collision on August 14, 2015."

A letter dated August 28, 2015 indicated mutual agreement to postpone the investigation until 0800 hours, September 24, 2015 and to change the location to the conference Room, 3700 Globeville Road, Denver, CO, 80216.

Carrier Position:

The Carrier insists that substantial proof was obtained with the Claimant's admission that he did not operate the vehicle "safe enough." The discipline was proper as it was in accordance with the Policy for Employee Perfom.1ance Accountability (PEPA), Appendix A. The Organization now asks for leniency, which is the province of the Carrier, not the Board, nor should the Board substitute its judgment for that of the Carrier. Alleged procedural shortcomings have not been shown to have prejudiced the Claimant or the Organization.

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PLBNo. 7564

Case No. 70/AwardNo. 70

Organization Position:

The Organization avers: that the investigation was not fair and impartial and that the Clairoaot1 � due process, rights were not respected.. The Cattier"$ case is based on "opinio�

innqend� and speemation because Carrier witnessea bad no first-handknowledge ofthe accident{ There isno proofthatacitation wasissued to the Clai.tnam and no damage reports are in evidence. The accident was unavoidable and the disciplineis "arbitrary and excessiV'e..'"

Findinp:

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The Organization basnot shown that the investigation was no1 fair and i1Jlpartial or that the Claimant did not receive due procesa. The discipline was not based on "opinion,. innuendo and speculation,. as the claim.a.nt, to his credit forthrightly testified that he rear--ended the vehicle in frontofhim, that his. Carrier vehicle sustainedminor frontbumper damage anda cracked grill and that the original unsafe citation was reduced to an unsafe,lane change citatio� ofwhich h� was guilty. These admissions constitute substantial evidencethat.MWSR 12.1 Operation ofMotor Vehicles wasviolated. Whilethe Claimant and all concerned surely regret the accident the Board cannotignorereality,.

Award:

Claim denied.

Order:

This Boar� after consideration ofthe dispute identified above, hereby orders thatno Award favorable to the Claimant be made.

Zachary Voegel,Or"

Austin, Texas

January 31, 2018

I. B. Helbum Neutral Referee

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