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5

Special Board of Adjustment No. 1112

Parties to Dispute

Brotherhood of Maintenance of Way )

Employees' Division/IBT )

vs ) Case 93/Award 94

Burlington Northern Santa Fe )

Railway Company )

Statement of Claim

Appeal of discipline of a formal reprimand assessed Claimant Robert G.

Christianson on April 18, 2005.

Background

On March 8, 2005 the Claimant to this case, Robert G. Christianson was advised to attend an investigation in order to determine facts and place responsibility, if any, in connection with his alleged failure to work in a safe manner to prevent injury to himself or others. An incident involving the Claimant, which happened on February 22, 2005 while he was working near M.P. 100.5 on the Carrier's Devils' Lake Subdivision, led to his being charged by the Carrier.'

An investigation of the incident was held at the Carrier's Section Headquarters at Church's Ferry, North Dakota on March 22, 2005. On April 18, 2005 the Claimant was

'The first notice of investigation that was sent to the Claimant on February 24, 2005 mistakenly states that the charges against the Claimant involved an incident that took place on March 24, 2005. This was corrected by a notice of investigation sent to the Claimant on March 8, 2005 which stated that the alleged incident took place on February 22, 2005. The Organization's objection to the change in the content of the notice of investigation, and the manner in which it subsequently affected the quality of the transcript of investigation appended to this case is discussed by the Board in Award 93 and is included here by reference.

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2 advised that he had been found guilty of violating the Maintenance of Way Safety Rules S-1.1 amd S-1.4.7 and he was assessed a formal letter of reprimand.
The discipline was appealed by the Claimant in accordance with Section 6 am of an arbitration agreement signed on July 29, 1998 between the Carrier and the Organization that created Special Board of Adjustment (SBA) 1112 under the authority of the National Mediation Board. In accordance with the provisions of that agreement this case is now properly before SBA 1112. The neutral member has been granted fmal and binding powers to issue an Award on this case based on the criteria outlined by the parties in Section 8 of the agreement creating SBA 1112, and in accordance with Section 3 of the Railway Labor Act. Discussion & Findings
Rule 40 of the parties' labor agreement is incorporated into this Award by reference and in toto.
Rules S-1.1 and S-1.4.7 of the BNSF Safety Rule book are also incorporated into this Award by reference in pertinent part.
According to testimony by the road master at Minot, North Dakota who was the supervisor of what is known as the Carrier's Church's Ferry section, there is a track crossing at grade at Milepost 100.5. This crossing was a minimum grade crossing. It was not maintained during the winter months. As far as can be determined from this witness' testimony, the track inspector reported to him prior to February 22, 2005 that the crossing
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3 at that point was not good and it was being closed to vehicular traffic. The crossing planks had to be repaired and repairs were done on February 22, 2005. Some time later, on February 25, 2005 this road master went to inspect the 100.5 repairs with a number of other Carrier supervisors. As far as can be determined, from testimony by this witness, the repairs had not been done to his satisfaction. He states that the repairs should have been made by apparently pouring alcohol on one of the planks at the crossing to thaw it out.

There were attempts by the hewing officer to interrogate a number of other witnesses at the investigation. For various reasons as will be noted below the testimony by these witnesses provided no useful information for the Board whereby it could frame a ruling in this case on merits.

This is a companion cases to Case No. 92 which has already been reviewed and ruled on by this Board. A review of the full transcript of investigation in this case warrants the same conclusions that the Board came to in framing its ruling in Case No. 92 and those conclusions are included here, in detail, by reference.

The Board has great concerns in this case, as in Case No. 92, about the quality of the evidence found in the investigative record fi-om the hearing held on March 22, 2005. These concerns centers on the substance of the testimony given by the primary witness, on the poor technical quality of the transcribing process of the testimony, and the lack of evidentiary basis for framing an Award on merits.

This Board will state here what it has already stated in Award No. 94 which is that

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4 it can only reasonably fi-ame its rulings on basis of evidence of record. Since this is a discipline case the Carrier as moving party bears the burden of proof that the evidence provided the Board is comprehensible. In the instant case that test has not been reasonably met.
For reasons outlined in the foregoing the Board will sustain the claim. The formal reprimand assessed Claimant Robert G. Christianson on April 18, 2005 shall be removed from his file. Award

The claim is sustained in accordance with the F' dings. Implementation of this

Award shall be within thirty (30) days of its d e.

Edward L. Suntrup, Chair &

Neutral Member

Date: September 27 2005