UNION CASE NO. 96062 COMPANY CASE NO. 1030002 because an absolute signal right at the switch was displaying a red aspect. After trying unsuccessfully to contact the train dispatcher directly, Claimant made indirect contact through SYO (Yardmaster)Frank Valdez. Mr. Valdez r°_layed to the train dispatcher that Claimant and crew needed permission to come out of QYIC and go west on the No. 1 main track. According to transcribed tapes of the three-way eschan2e, Mr. Valdez explained Claimant's situation to the dispatcher who informed Valdez: "Yeah. h:, can come out and he can head back east down the Lo. 1 there." V aldez, relayed thus to Claiinant as: "He says you have permission to come out"; to x hich Claimant replied: -Permission to come out. 'hank you."
Because Claimant was operating icr: the west. trailing locomotive. he needed to come out far enough eastward to clear the spur track switch and then go westward on the No. 1 main track. Claimant elected to go eastward about ti·; a car lengths, in order to move west-ward on signal indication to avoid being limited to restrac-=' speed. a sufncient distance to get east of a westward signal before making a westward move.-ne: :. I; si ng the same crossover they had used to come from the yard to Q\-IC, Claimant made the re% e-rse movement but the engine ran through that switch with resultant damage. Foreman Kasper sub secuentl,: ~N as to testify that he switch was properly lined and the switch points moved as the engine passed over them, while carrier witnesses insisted that the condition of the switch indicated that it ha.-' been lined a=ainst the movement.
Following a formal investigation on September 30, 1996, Carrier found Claimant primarilyPI-6 Nr) . 44 Sa AWARD NO. 102 NMB CASE NO. 102 UNION CASE NO. 96062 COMPANY CASE NO. 1030002 and therefore this Board neither expresses nor implies any opinion concerning the underlying question of the relative culpability of Claimant, Foreman Kaspar, SYO Valdez and the train dispatcher. Specifically, it is not disputed that after interviewing and counseling the crew at the scene on the night of the incident, MYO Humer intended to take no disciplinary action and therefore did not fill out the requisite UPGRADE s- stem -japenvork, Form 1 or Form ?. .At some level, that decision was over-ridden and charges were brought against Claimant but no Form 1 or Form ?ever was issued to Claimant. This is more than: a "mere technicality" since it deprives a charred employee and the Labor Organization of notice and opportunity to prepare a defense arid moreover deprives the charged employee of his r:g la to make an informed decision whether to waive fo=al investigation. These fatal errors were compcunded when. Carrier failed to provide Engineer DuVall with a timely written Notice of Investi ~a:ion citing the specific charges against him. That error was not cured by having a CMS operative read the notice to Claimant over the telephone.
Based upon the foregoing fatal flaws in the procedural handling of this mater, the Level q UPGRADE discipline is voided. As r emedy, Carrier shall purge Claimant's personnel record of all references to this incident and make him whole for the wage loss suffered as a consequence of this invalid disciplinary action. In that connec Lion, the record shows that his DOTiTRA certification was not revoked or suspended during the period of iris LTGRADE suspension without pay.