BEFORE PUBLIC LAW BOARD NO. 7590 CASE NO. 61
BROTHERHOOD OF MArNTENANCE OF WAY EMPLOYES DIVISION
V
BNSF RAILWAY
(Former ATSF Railway)
BNSF FILE NO. 14-16-0373 BMWED FILE NO. 493-SLl3Sl-1639
Claimant: J Beauchamp STATEMENT OF CLAIM: "C lai m of the System Comminee of the Brotherhood that:
" We present the following claim on behalf of Southeast District 900 Andrew Beauchamp (7453731) Seniority Date Jul y 07, 1995 for removal of Level S 30 Day Record Suspension and 3 Year Review Period. The sus pens ion shall be set aside and the claimant sha ll be made whole for all financial and benefit los ses as a result of violation. Any benefits lost , including vacation and health insurance benefits (including coverage under the railroad industr y National Plan), shall be restored commencing May 26, 2016 , continuing forward and/or otherwise made whole. Restitution for financial losses as a result of violation shall include compensation for: I.) straight time pay for each regular work day lost and holiday pay for each holiday lo s t, to be paid at the rate of the position assigned to claimant at the time of suspension from service (this amount is not reduced by any outside earnings obtained by the claimant while wrongfully suspended) ; 2.) any general lump sum payment or retroactive general wage inc rease provided in any applicable agreement that became effective while the claimant was out of service. 3.) overtime pay for lost overtime opportunities based on overtime for any position claimant could have help during the time the claimant was suspended, or on overtime paid paid to any junior employee for work the claimant could have bid on and performed had the claimant not been removed from service; 4.) health , dental and vision care insurance premiums , deductibles and co-pays that he would not have paid had he not been unjus tly removed from service commencing April 13 , 2016, continuing forward and/or otherwise made whole. All notations of the dismissal should be removed from all Carrier records
The carrier or carriers and the employee or employees involved in this dispute are respectively carrier or employee within the meanin g of the Railway Labor Act as approved June 21, 193 4.
Public Law Board 7590 has jurisdiction over the parties and the dispute involved herein . Parties to said dis pu te were given due notice of hearin g thereon.
Claimant was notified in a letter dated June I , 2016:
Aninvestigation has beenscheduled at1000 hours, Friday, June 10, 2016, at the BNSF Conference, Room
305, Bl41.2 1625 N.Lexing oAAv nue,Sp1ingfield,. M0,,65802, for the puipose of ascertaining the facts
and deterrnuuug your respons161hty,1f anym, connection with your alleged failure to wear aseat belt while
operating a BNSF Company vehicle May 26, 2016, per DriveCam Event FBX4851l. The date BNSF
received first knowledge of this alleged violation is May 27, 2016.
Tl1ls investigation will determine possible violation ofMWSR 12.5 Seat Belts and MWSR 14.1.2 Seat Belts.
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An investigation was held following a postponement. Claimant was notified in a letter dated August 14, 2016:
As a result of investigation held on Wednesday , July 6, 20 I 6 at 1100 hours at BNSF Conference, Room 305, Bldg 12, 1625 N. Lexington Avenue, Springfield, MO, 65802 you are hereby assessed a Level S 30 Day Record Suspension for your failure to wear a seat belt while operating a BNSF Company vehicle May 26, 2016 , per DriveCam Event FBX485 11.
In add ition , you are being assessed a Three (3) Year Review Period that commences on August 4, 2016. Any rules violation during this review period could result in further disciplinary action.
It has been determined through testimony and exhibits brought forth during the in vestigation that you-were in violation ofMWSR 12.5 Seat Belts and MWSR 14 . 1.1 Seat Belts.
In assessing discipline, consideration was given to your discipline record and the discipline assessed is in accordance with the BNSF Policy for Employee Performance and Accountability (PEPA).
The Carrier argues that there are no procedural defects in the instant matter. Claimant can clearly be seen on the DriveCam without his seat belt.
The Organization counters that there was no offer of lenienc y for Clai mant ' s infraction. Therefore, the discipline was excessive. Claimant admitted the infraction and should have received leniency and not a Level S.
The Board sits as an appellate forum in discipline cases. As such , it does not weigh the evidence de nova. Thus, it is not our function to substitute our judgment for the Carrie r' s judgment and decide the matter according to what we might have done had the decision been ours. Rather,
our inquir is whether sub tantial evidence exists to sustain the finding against Claimant. If the question i decided in the affirmat ive, we are not warranted in disturbing the penalty absent a showing that the Carrier ' s actions were an abu e of d isc ret ion.
The Board has reviewed the e idence. There are no procedural violations which void the d isc ipline. On the merit we find that here is substantial evidence in the record to uppoi1 the disc i pli ne. Claimant can be seen without a eatbelt on the DriveCam and admitted to the infraction. A eat belt violation is considered a serious safety iolation and a Level is not an abuse of Carrier di cretion.
Clai m denied
Organization Member Carrier Member