PARTIES TO THE DISPUTE :

 UNION PACIFIC RAILROAD COVLPAN-
 (Western Region)
 - and -
 BROTHERHOOD OF LOCOMOTIVE ENGINE-ERS

 STATEMENT OF CLAIM:


OPINION OF BOARD :

On June 4, 1997, Engineer J. B. McKeon, ("Claimant"), was called on duty at Las Vegas, Nevada, at 11:45 AM. He purposely traded out to work PBSCB-03, at the behest of?NIOP L. R. Rhoades who was directly responsible for supervising movement of that inspection special Las Vegas, Nevada to Milford, Utah. \·i0P Rhoades also used the opportunity to conduct engineer evaluation of Claimant and Conductor C. L. Eardy-- a promoted engineer working in a difrent craft at the time. Claimant operated PBSCB-03 Bern Las Vegas to the siding at Rox, where Conductor Hardy took control for an evaluation of lvs e : -ineer skills by MOP Rhoades, who was seatad in the center seat of UP 6173 crew comfon cab.





Less than 30 miles east of accepting control of the train, the Conductor apparently allowed the train to exceed maximum authorized speed through two curves somewhere between MP 425.4 and 428.2. The '.\,IOP eventually brought this to the attention of Manager of Train Operations Douglas P. Maughn, who took Claimant out of service and issued the following "dual purpose" Notice of Investigatior_,Proposed Discipline letter, on June 9, 1997:


      "PLEASE REPORT TO THE CONF =RENCE ROOM OF THE NLANAGER OF TRAIN

      OPERATIONS LOCATED _4T 435 SOUTH 100 EAST, MILFORD, UTAH. 84-51 AT 0900 ON

      VZ BDN-ESDAY TUNE 11, 1997 FOR INZ -S TIGATION AND HEARING TO DEVELOPE [sic]

      THE FACTS AND PLACE INIDIV'ILUA L RESPONSIBILITY, iF AN": IN CONNECTION WITH

      FOLLOWING CIi-1RGE


    THAT DURING YOUR TOUR OF DUTY AS THE ENGIXBER OF THE PBSCB-O= ON DUTY LAS VEGAS, NEVADA AT 1115 A.M. ~% ORI%LNG BETWEEN LAS VEGAS, NEVADA ANB MILFORD, UTAH THAT YOU DED .-\LI.EGEDLY ALLOW YOLK TRAIN TO TRA',7EL AT SPEEDS EXCEEDD~G 10 MPH OVER THE ~vfAX1MU-M AUTHORIZED SPEEDS IN EFFECT FOR YOUR TRs.IN AS PUBLISHED LN THE UNION PACIFIC RAILROAD COMPANY SYSTEM TD AETABLE N 0 2. EFFECTD ~ OCTOBER 29, 1995, IN VIOLATION OF RULE 6.31 OF THE GENERAL CODE OF OPERATING RULES, EFFECTIVE APRIL 10, 1994, AND COULD ALSO INCLUDE VIOLATION OF OTHER RULES, REGULATION'S AND INSTRUCTIONS OF THE UNION PACT-rIC RAILROAD COMPA-NZ'.


    THE LNTVBSTIG A TION - N-D HEARI\G'NILL BE CONDUCTED IN CONFORMITY-vVFITH ALL

    SCHEDULED RULES ."-.ND REGULATIONS BETWEEN THE COMPANY AND

    BROTHERHOOD OF LOCOVIOTTV = ENGINEERS. YOU ARE ENTITLED TO

    REPRESENTATION AS PROVIDED FOR LN THE SCHEDULED RULES. YOU ALSO HLAY

    PRODUCE SUCH WITNESSES AS YOU DESIRE AT YOUR OWN -EXPENSE.


    UNDER THE UPGRADE D ISCIPPLDiE POLICY, THE PROPOSED DISCIPLINE IS LEVEL 4.

    YOU MAY CONTACT AIR. D.P. NL-,UGH AN, VLIuNAGER OF TRAIN OPERATIONS, FOR PRE

    L~`,VESTIGATION MEETLVG ASPER AGREEME~1T. AT (801) 397-2291.


    YOU ARE BEING WITHHELD FROM SERVICE PENDPNG RESULTS OF SUCH INVESTIGATION AND HEARLNG. PLEASE BE ADVISED THAT THIS INVESTIGATION WILL .=.LSO SATISFY THE PROCEDURAL REQUIREMENTS AS SPECIFIED BY 49 CFR PART 240, QUALIFICATION AN-D CERTIFICATION OF LOCOMOTIVE ENGIIEERS DEPENDING ON THE RESULTS OF THIS INVESTIGATION, YOUR QUALIFICATION REQL-IRENIENTS FOR :Y.E POSITION OF LOCOMOTIVE ENGINEER VL-~Y BE AFFECTED.


                          sl Datiglas P. illaughan

                          DOUGLAS P. MAUGHAN


                            2

                                          PLC Nn . 4 USo AWARD NO. 116 NMB CASE NO. 116

                                      UNION CASE NO. 1068440 COMPANY CASE NO. 97043

By letter dated June 20, 1997, Superintendent T. R. Lewis found Claimant guilty as charged an imposed the Level 4 discipline. That disciplinary action is rendered null and void and reversed due to a blatant and fatal violation of the UPGRADE policy requirements by Carrier Manager Maughn. Mr Maughn and issued the charges against Claimant and proposed the Level 4 discipline. Despite the objections of the Organization, -\,L-. Maughn also served as the Hearing Officer who conducted the formal investigarion wrch resulted in Carier's finding of Claimant's culpability of the charge filed against him by -Mr. 1~fau=nn and the imposition of the Level ^ Upgrade discipline

'which had been proposed by Mr. 1fauc:~n. Such mixing of roles in a single Carrier manager is expressly and unequivocally prohibited ~~,; the terns of the Upgrade Policy Guidelines, which states: "The charging -Manager shall not be the hear_ng Manager in any case". (Emphasis in original). his noted that no FRA revocation occurred in this case, accordingly not only is the Level 4 Upgrade discipline expunged from Claimant's record but Carrier shall also make Claimant whole for the thirty (30) days' of lost pay caused by ,his invalid disciplinary action.

                                            PLB N0. 4450

                                            AWARD NO. 116

                                      NMB CASE NO. 116

                                      UNION CASE NO. 1068440

                                      COMP?NY CASE NO. 97043


                          AWARD


      1) Claim sustained.


      2) Carrier shall implement this Award within thirty (30) days of its execution by a majority of the Board.


                  Dana Edward Eischen. Chairman


              Dated at Spencer. New York on Viarch 17, 2001


                                r'~ F


Union Member Company Member

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