PARTIES TO THE DISPUTE:

 UNION PACIFIC RAILROAD M\L'A~ -
 (Western Region)
 - and -
 BROTHERHOOD OF LOCO-IOTi:---XG--EERS

STATEMENT OF CLAIM : Appeaii-z :'= t?GRa.DE Level') Discipline with 5-day suspension of Engineer C. Sotomayor and request = e e·;pungement of discipline assessed and pay for all lost time with all seniority and ~ acation -estered unimpaired. Action taken as a result of investigation held March --. 1996.

OPINION OF BO A_RD: \-Is. Cotaue:c -o:.~-taros, ("Claimant"), was employed as an Engineer at Los Angeles and was working on vla: cc -. i 995. at Yermo. California, with Footboard Yardmaster L. D. Bazzelle and Helper A. D. Hollin=s- : o::::. --kt about 5:50 am Claimant and this yard crew were assigned the task of doubling track 6 :e -,-ac"- 18. in order to assemble a train. Using a three locomotive consist, the crew pulled the : -.rs oat of track 6 and Mr. Bazzelle told Claimant over the radio to shove ahead thirty (-9) car len=__:s. It :snot disputed that Mr. Bazzelle had no idea whether the distance to the couplinL, on track I = .~ a; 3!C! car lengths but he made that off-hand estimate of distance and so instructed Claimant ;,: ::te °--oneous assumption that Helper Hollingsworth was riding the lead. In point of fact.~-1,:_c C' :mant was shoving down the lead into track 18 at approximately T mph, Helper Ho11in=s-:o=: Helper Hollingsworth boarded the trailing unit that Clatnlant was operatlrl- irul-. Tuz: ~~__.-~ Mr. Hollln.-sworth got to tie door tl::re was an

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UNION CASE NO. 08086A COMP At\Z' CASE NO. 1012536 unexpected impact with the standing cars. Simultaneously with this "rough coupling", Mr. Bazzelle said over the radio"That ~.N ill do".

As a result of the in;pact.Helper Ho 11:n_s« orth sustained injuries to both knees and Claimant and crew were cited by Car-ier for inv esti_ation. Following the fonnal investigation, Carrier found Claimant culpable and assessed disciplin° as follows:


      After carefully consiCerin= th: e,: idmce a,:.f_::3 at the hearing held in Y'ezno. California On Friday. March 22, 1996, 1 t7 rid :har the foilo« :n_ _.. --es a=gins: you have been sustained:


      While assisned as En=:n-°e.·. you :a:izZ :c~_ -.e: and anmtive and exe'c:se proper handling of your train on the East Endof yer!-,o :'ard. Y-er-ro. Cal:: c r.-.:a. at approximately t:5 0.-.M on Thursday. March i, 1996 which caused a rough coup l:n_ resulen= :n a - .-_,...-.:niury to a member of,lour crew while working the ATRA-06 on duty at 2230 hours on March ~. ':956 a: 1-e-ao Yard. Yermo. Cali ior-^:a_ to violation of the General Code of Operating Rules. e.f-:n~ e April 1'~. :10-. Rule -.13.


      Under the LPGRADE Dts::pline Tare -- current siolation requires an assessment of LEVEL 3. The assessment rcquires _, u; to se:-: e a `·: e i _ , _ _,apension without pay. Your suspension will be=in :2:01 am March 30, 1996 and end 1=:01 arr:Ap-:: =. :95.


The rule which Carrier fot:nd Clairn:an; -~:::~ of violating reads as follows (Emphasis in original):

      2.13 In Place of Hand Signals


      When the radio is use'! tns;ead o: hand s:.na1s. info mation must include ;he direction and distance to be traveled. Movement must stop Nrithin half of the distance specified unless additional instructions are

      received.


Careful examination of the record evidence shows that this disciplinary action must be reversed because Carne: failed to mak: c:.t; a :r;ma facie case that Claimant in fact violated Rule 2.13, supra. In order :o carry its bur'_-. of proof in this matter, Carrier had to show by a preponderance of the r:cord evidence :!:~: Claimant did not stop within one-half the distance specified by Footboard Yardmaster Buzz=lle. Le.. under Rule 2.13 she was required to stop after shoving no more than 15 car fen=ths. si-:ce Mr. Eazzelle had neither counted down the distance nor

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                                          NMB CASE NO. 105

UNION CASE NO. 08086A COMPANY CASE NO. 1012536 given any additional instructions after radioing Claimant to "30 Car lengths". Not only did Carrier fail to make out a prima facie case that Claimant had shoved 15 or more car lengths prior to the impact but, to the contrary. the record evidence establishes that the point of impact occurred after no more than 10 V2 or 11 car lengths. Based on this critical fact. Car:ier's disciplinary action is reversed because the record establishes that C':a-nant did not violate Rule 2.13.


A';,-> RD
1) Claim sustained.

 2) Carrier shall implement this .award v:.':hin thirty (30) days of its execution by a majority of the Board.

Dana Ed~ and -achen. Chairman

Dated at Spencer. Nevv York on March -~-6. 2000


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 Union Member

 Company Member