trailing units. Claimant completed the ai=test and started the train moving on an ascending grade. Before movement started Conductor Er tle advised Claimant in =ener al ierrns that they had more cars in their train than the original information indicated and then promptly began making new calculations for their total train tonnage and length.
At Mile Post 333, two mile in advance of the Form B restriction, they encountered a Yellou·,Red Flag, which both Claimant zd Mr. Er tle acknowledged, and Claimant started sloxing the train down. There was no contact wi:h the Track Foreman in charge of the Form B limits. As they approached Mile Post 331, they saw a red Flag at the ease yard limits of a Form B Track Bulletin. At 900-1500 feet before the Red Flag, claimant applied a IO pound set to the train air brakes and then increased the brake application to full service, 26 pounds. At about this point, Claimant put :he train into emergency and came to a fill stop, but slack action pushed the leading end of the train about 100 feet past the Red Flag into the Form B limits.
By letter dated August 18, 1997. Claimant and Conductor Er-.le were summoned to a formal investieation on charges reading in pe·:en t pan as folioxvs:
Following an uncontested postponenaer:. the hearing was held on August 29, 1997. Claimant was advised by letter of September 5. 199- :hat Carrier considered him guilty of violating the following three (3) of the nine (9) Operatnu= Raies with which he had been charged:
On that basis, Came- assessed Clain-.ant Level T Upgrade Discipline (30-day suspension) and revoked his your locomotive engineer c.:-: c~tion, citing Part 210.11 7 paragraph G of the FRA regulations.
Claimant and the Organization made timely appeal of the Upgrade disciplinary assessment and also an appeal of the ccrtiflcation sus:ension to FRA's Locomotive En--ineer Review Board
PLB No . 4Ysz AWARD NO. 109 NrvM CASE N0. 109 UNION CASE NO. 97057 COMPANY CASE NO. 106867? (LERB), which culminated in exoneration of Claimant by the LERB. By decision dated August =4, 1998, LERB held in Decision EQAL 97-97, as follows:
Notwithstanding the LERB decision, Carrier declined to reverse its disciplinary action and the claim eventually was appealed to this Board for final and binding determination in arbitration.
At the outset, we are not persuaded that the LERB administrative licensing determination is dispositive of the claim before us for arbitration under the terms of the System Agreement Discipline Rule and the Upgrade Procedures. Although many of the same facts come into play before these respective tribunals, they are parallel tracks for adjudicating separate and distinct rights and duties. As such, each forum may reach a different conclusion and neither has any collateral estoppel effect overthe other. In the final analysis, our decisions are based on an independent analysis of all of the evidence on the record before us. LERB determinations are not irrelevant in terms of admissibility before this Board, but we do not accord dispositive or authoritative weight to factual findings made in LERB licensing determinations. Nor do we abdicate to LERB ourprimary jurisdiction under the controlling collective bargaining agreements and the Railwa· Labor Act to d°cide properly appealed grievances presenting issues of culpability and appropriateness of disciplinary penalties. ' PLf3 No. 44.$'0
Turning to the specifics of this case, we conclude that Carrier erred in finding Claimant culpable of violating Rules 1, 1.1.1 and"or 15.2 in the unique facts and circumstances presented on this record. Neither Carrier, FRA nor this Board take lightly charges of employee violations of critical safety rules such as those involved in this case. Carrier made out a prima facie showing of a Rule 15.2 violation by the undisputed fact that his train did get past the red flag. But Claimant and the Organization then came forh·ard with eeuzilv undisputed evidence that combination of the two trains not only doubled the weight and i:rg:h of the train from what he thought he was handling but also placed the solid block of loaded auto racks at the rear end. Finally, it is not disputed that the due to the late arid hasty departure, the Conductor had not vet completed his tonnage and length calculations for the reconfigured train or relayed that information to Claimant prior to the initial brake application on approach to the red board. Thus, through no apparent fault of his own, Claimant did not perceive the significant difference between the reported and actual weight and composition of his train prior to initial brake application at the red board. Due to the unusual mitigating facts and circumstances, we conclude that Claimant and the Organization adduced sufficient evidence to rebut Carrier's conclusion that he was culpable of the Rules violation for which he was disciplined in this particular case.
AWARD NO. 109 NMB CASE NO. 109 UNION CASE NO. 97057 COMPANY CASE NO. 1068672
Dana Ed-.% --d cischen. Chairman
Dated at Spencer. New York on September 17, 2000