BEFORE PUBLIC LAW BOARD NO. 7590 CASE N0. 18
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES DIVISION
V.
BNSF RAILWAY
(Fonner ATSF Railway)
Carrier File No. 14-12-0070 Organization File. 30-13NI-1199
STATEMENT OF CLAIM
Claim of the System Committee of the Brotherhood that:
1. The Carrier violated. the Agreement on December 29, 2011 when it assessed Claimant, LaAnthony Saffold (170I036),a Level S 30..day record suspension, with a 3 year review period, for alleged violation of Maintenance of Way Operating Rule 15.2-Protection by Track Bulletin Form B, and Maintenance of Way Operating Rule 5.4.7-Display of Red Flag or Red Light, for alleged passing red flag without permission while moving track machines on the Emporia Subdivision on November 16, 2011.
2. As a consequence of the violation referred to in part (1), the Cattier shall immediately remove the discipl_ine from Claimant's record with seniority, vacation and all other rights unimpaired, and make him whole for all time lost account of this incident.
The carrier or caniers and the employee or employees involved in this dispute are respectively carrier or employee within the meaning of the Railway Labor Act as approved June 21, 1934.
Public Law Board 7590 has jurisdiction over the parties and the dispute involved herein.
In the instant matter, Claimant received a letter advising him to appear at an investigation on November 29, 2011:
for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged passing red flag without permission, MP 33.9, Emporia Subdivision, at approximately I030 hours on November 16, 2011 while moving track machines.
This investigation will determine possible violation of MOWOR S.4.7Display of Red Flag
or Red Light and MOWOR 1S.2 Protection by Track Bulletin Form B.
By letter dated December 29, 201 l Claimant was assessed a Level S 30-day Record Suspension with a 3-year review period for "passing red flag without permission. MP 33.9, Emporia Subdivision. at approximly 1030 hours on November 16, 2011 while moving track machines.''
The Organi:zation contends that Claimant did not vioJato the cited Rule and that there is no proof in the record. Claimant'swork group had permission to be within the limits of the Form B and that permission was acknowledged by Employee in Charge Juan Villa.. The Foreman had permission for the group to workwithin the limitsof the Form B and Claimant'smachine was part of that group.
The Cmr:ier maintains that the evidence establisheq that the Claimant failed to follow the Rule when he approached the Red Board to enfFthe territory under the Form B. Claimant failed to contact EIC Villa and operated past the Rpatd without permission toproceed -although he
thought he had the Foreman'spermission. The Rule requu:es employees to contact the EiC when entering a Form B Claimant did not contact the EIC.
The Board sits as an appellate forum indiscipline cases. As such, it does not weigh the evidence de novo.Thus, it isnot our function to substitute ourjudgment for the Carrier'sjudgment and decide the matter according to what we might have done bad the decision been ours. Rather, our inquiry is whether substantial evidence exists to sustain the finding against Claimant. If the question is decided in the affirmati'!e.we ar.e not warranted in disturbing the penalty absent a showing that the Carrier's actions wdi:f an ab ot/tffi;cretion.
There is substantial evidence of the Rule violation inthe record. Claimant operated his machine past the Red Board associated with the Form B. He did not contact EiC Villa who was responsible for the Form B. The Organimtion raises an issue that there was permission given to the group to operate within the Form B earlier in the day. However, whether that permission applied to Claimant asheapproached the Form B limits was aquestion of credibility-with Carrier witnesses testifying that Claimant should have contacted the EiC for permission to enter the Form B limits and operate past the Red Board and Claimant's Foreman testifying that he thought he had permission. This credibility question \VQ' 4termined by the investigating official against the Orgaoiz.ation' sposition.
t
'Briat,,:Cu:/UW'
/
Dave Scoville
Organiz:ation Member
Brian Clauss
Neutral Member
Samantha Rogers '
Carrier Member
