`
AWARD NO. 119
NMB CASE N0. 119
UNION CASE NO. 1105175
COMPANY CASE NO. 93005
PUBLIC LAW BOARD N0. 4'.450
PARTIES TO THE DISPUTE
:
UNION PACIFIC RAILROAD COMP -\-N-Y
(Western Region)
- and -
BROTHERHOOD OF LOCOMOTI` - ENGINEERS
STATEMENT OF CLAIM:
,
Appealing the Uprade Le·: el ? Dacipline assessed to Engineer N. W . Price and
request of expungement of disciplL:a assessed and pay for arty and all time lost with
all seniority and vacation rights restored unimpaired. Action taken as a result of
formal hearing held December 1 S, 199-.
OPINION OF BOARD
:
Engineer N. W. Price ("Claimant") -:vas 5,tlly rested under the Federal Hours of Service Law
when called on duty December 13. 199- for train 'vfPCHKB-l 0, a westbound train operating
between La Grande and Hinkle, Ore gor.
= 2
is was CTC (Centralized Traffic Control) territory but
it is not disputed that, during the night i^. question, the Train Dispatcher was required to move trains
using verbal authority because a tree =ell at Mile Post 246.8 and knocked the power out in the area
of the incident. As Claimant waited at :l:- red si=nal and dual control switch at CPN263, Train
Dispatcher David Ryan advised hiy-t that due to the outage
it
had been necessary for the eastbound
train to hand :hro-,v the dual control s%%v=tch to line it for that train's move.-nent. Therefore, before
Q~B
roa· 445
Claimant's westbound train could proceed, it
would be necessary for
his
Conductor
to
hand throw
the switch, realigning it and placing
it
in the power position for the westward movement
of
Claimant's train.
The followinsz
is
an excerpt
from
--'---,aped radio conversation between Dispatcher Ryan and
the crew on the
L-P 9239 PCHKB Vv
est
(morn
pages
20
and
<1 of
the transcript):
"Dispatcher: LP Dispatcher, Omaha. to the PCHKB 9:=9 ;Vest, over.
Train: Were 92=9
Dispatcher: Let me ask you ; _ ,uest;on, if you don't - if I can't line you
uD,
is it
safe( ...inaudfble...)) dc%vr :here to Hieh Brdae and hand-operate the switches on
and so forth to =e:'cv --..:e down to
the S
in~ie Main?
Train: Well, I'djust have to . =sudible ) ?o out there, Dispatch, but I'd have to take it
really easy. You So: to :watch the area. It's cold
weather on
a short, heavy train
like this. And if you''.
-of
too much to stop and you can't get it stopped in tune
to-you know, to
:sk-
otf again (...inaudible...)
Dispatcher: Okay,
well, "hin:: abcu: ::. That at
:Es
point, the High Bridge is out, both ends of
Huron, Both ends of Camp and both ends of Duncan. I do have two east bounds
besides the one apprcazz'..- g ·he Hi=hBrido_e now. They are truing to get a tree out
of the way down :here -: ound ?46.8, that appears to be
where my
problem is as far
as my CTC problem -^. er e. though they got a bunch of code lines torn up. And so
if you do eo west agh 3ndge, we'll have to do the same thing at both ends of
Huron, Camp and Dccan. plus meet those two east bounds somewhere. Over.
Train: Well, I can go ahead and :r.v it and go on down there, if you will be to take it easy
until I get down to High 3tidge, so I can stop alright without-(...inaudible...) takes
a lot of air to do it. ·: cu ; ,ow.
Dispatcher: Okay, sir, well, if -: ~. 'that'll be fine. You mightjust have a talk with this east
bound ;rain empr-4.d 5=9= East and you know, based on when
he stars
through
the
switch, I (...inaud:--l°_...)because
they had
the dad-gum thing off-power so you
can go ahead and. veu :ro-·v.
_2o
through it
and put it back on power, you know,
before you leave there. over.
Train:
Yeah, that'd
be easier ' _ ou' ll do that. Then 1 can compare with Fred to make sure
he didn't find an, t:.mr=wrong. eiher, between Fred and me here. Yeah, I can go
ahead and throw :t _==.
Dispatcher: Okay.
Train: 6292
Disa_ atcher: Just leave ;he switch o=~ -owe: for the westbound PCHKB, and you might talk to
em' there whene·: er -: o.. -e s;a: no through the switch so we can kind of sort of
easing in that direcaen. Ov er. - _
Train: Okay, leave the =owe- c:: on :he switch and talk to he westbound.
Dispatcher: if you :vouid, yes-
:r-.
-
PCB tyo - 445D
AWARD NO. 119
NNiB CASE NO. 119
UNION CASE NO. 1105175
Dispatcher: Thank you now.
Claimant's Conductor aligned the switch as instructed and when he reboarded Train
MPCHKB-10 Claimant then proceeded past the signal, entered CTC limits and occupied the main
line. Claimant and his Conductor later testified that, based upon the foregoing conversation with the
Dispatcher, they "assumed" that they had been authorized to proceed west past CPN 253, after they
had lined the switch for fneir movement west and put it back in power. After leaving High Brdge,
however, the crew had the following cor_v:rsation with the Dispatcher (from page i9 of the
Transcript):
Dispatcher: ( :inaudible ) approac_n_ *~Vest Kamela, okay. Hello -PCHKB, where you all
at-9239 West?
Trail: ( inaudible ) west of :::='=Bridge signal there-we're moving about 10-15 miles
an hour, heading down to (...inaudible...)
Train: ( inaudible ) La Grande, can you ( inaudible ) for me, please?
Dispatcher: ( inaudible ) so, yeu'te stepping there at high Bridge, so I can talk you by there,
over?
Train: ( inaudible ) talc s by ( inaudible )
Dispatcher: Yes, sir.
Train: It was my understanding when we left there.
Dispatcher: Not technically,' didn'z. over.
Train: ( inaudible ) restared ±e power, ( inaudible ), over.
The Claimant operated the train ·vest bound to Camp, where the crew tied the train down.
They were interviewed by MOP bliddleton and temporary MTO Rirter, then -were removed from
service for allegedly proceeding past the red si-:al and occupying CTC territory and the main line
without proper authorization from the Train Dispatcher. On December 14, 1997, claimant was
provided with a copy of Unson Pacific Rail-road Company, "Notice of W aivern'Hearing Offer', which
set the lleanng for 9:00 a.m. at the
vY
Depot or: 1h11rS~iaV, December
to,
1997. included with tile
PLB
NO
.445°
AWARD NO. 119
NMB CASE NO. 119
UNION CASE NO. 1105175
COMPANY CASE NO. 98005
NOI was the required Form 2 notice of waiverihearing offer, indicating a proposed assessment of
a Level 3 (5 day suspension and development of a corrective action plan) against Claimant's personal
file under Carrier's UPGRADE Disciplirte Policy.
Claimant rejected that of er to waiva the hearing and accept the proposed discipline and the
hearing went forward as scheduled on December 18, 1997. After four (4) hours, however, the
Hea5ring Officer recessed the proceedings ,-:til January 5, 1998, due to the alleged "unavailability"
of Train Dispatcher Ryan for testimony until that latter date. On January 15, 1998, Superintendent
K. H. Hunt, issued a letter of disciplin°_ indicati ng carrier had found Claimant culpable oftaIling to
receive proper instructions from the control operator to pass si_nal at CPN 263, High Bridge, on
December 13, 199 7, in violation of Rule 9.==. i of Unicn Pacific Rules; effective April 10, 1994.
That Notice of Discipline dated January 15. 1998 imposed an Upgrade Level 3 disciplinary status
to EngineerPrice, which Superintend-.- t _t_nt calculated as already scredwlule Claimant was being
held out of service between December
1
4 to 18. 1997.
For reasons elucidated below, rms Hoard finds that the disciplinary action imposed in this
case must be reversed, cue to fatal procedural lapses by Carrier in the handling of this matte: in
violation of the System Agreement- Disc4piine Rule. It is clear beyond cavil that the testimony of
Train Dispatcher Ryan was an essential in__-°dient in tlis case and Claimant's BLE representative
made a timely written request of Carer on December 15, 1997 for this critical witness to be
physically present for e.camination and cross-examination at the hearing on December 13, 1997.
By written response dated December 16. :99 ,', Carrier asserted:
"Fi'e :rill make every e-;t to make
him, available by phone. Precede7u :';as lee,-: set that
tes~imarn has
bee7i ,divert and accented br
AWARD NO. 119_
Iv-IYIB CASE NO. 119
UNION CASE NO. 1105175
COMPANY CASE NO. 98005
phone'.
The Organization immediately protested by letter of December 16, 1997 that telephone
testimony of this witness in this particular case would be inappropriate since it would deprive
Claimant of the opportursty to confront and effectively cross-examine his accuser. To this Carrier
responded by a letter dated December 1; , 1997, but hand-delivered to the BLE Representative by
the Hearing Officer 30 minutes prior to commencement of the December 18, 1997 hearing:
"Train
dispatcher will be provided to
aii,2
tes:i1nony by telephone. Any objection can be made to the
hearing officer".
Contrary; to these :presentations and despite strenuous objections by the
Organization Representative, mid-·va,: :_ouzh the December 18, 1997 heann a, the Hearing O_f- cer
unilaterally declared a recess for some _-:='=teen (18) days, due to alleged unavailability of the Train
Dispatcher. During the interrieglum, Ca=ter issued the following explanation for the disputed
unilateral recess and rescheduling:
Investiearion began on December 18. 199-, and was recessed that day with date to reconvene
established as January 5, 1998. Although a tape of conversation was available on December 18, 1997,
the Company was unable to pro~ic: the Dispatcher for testimony by phone account work
asst.aT.unents...
When the hearing resumed on January ,1998, Carrier did provide testimony of the Train Dispatcher
by telephone, over the continuing obj ec:ien of the BLE Representative that Claimant was thereby
deprived of his right of confrontation and e:fective cross-examination. In addition, at the outset and
at the conclusion of the resumed hearing on January 5, 1998, the Organization Representative
entered objections and assertions, none of which have been refuted on this record, that the
responsible Carrier managers lmew prior to the commencement of the December 18, 1997 hearing
that they were not going to honor their connmitment to the Organization to provide even telephone
testimony from the Train Dispatcher on that day.
5
PL(i ND
· L
f4SD
AWARD NO. 119
NMB CASE NO. 119
UNION CASE
NO. 1105175
COMPANY CASE NO. 98005
In these facts and circumstances, this Board concludes that the disciplinary action taken
against Claimant on the basis of the tainted hearing must be voided. Leaving aside the troubling but
unanswered questions surrounding managerial representations that the Train Dispatcher would be
made available for testimony on December 13, 1997, Carrier itself rendered this Carrier employee
"unavailable" by scheduling him to work when it had already made a commitment to the
Organization to make him available as a %%vzness. In the considered judgement of this Board, such
boot-strapping does not constitute the kind of "just cause" for which the System AgreeMentDiscipline Rule come.-aplates that reaena'~le postponements of disciplinar;., hearings should be
allowed.
Finally, we recognize that in some cases telephone testimony has been found acceptable
while in others it has been ruled inadequate and unfair.
See
PLB 5719-40 (Lynch) and PLB 482817 (Lieberman); Cf. PLB -'975-17 (Harris). Each such case turns on its own unique assessment of
whether such testimony is sufficient to meet requisite burdens of proof and/or whether an accused
employee is thereby afforded a fall, fair and ;martial investigation. In the facts and circumstances
of this particular case, the transcript of the January 5, 1998 hearing bears out the Organization's
previously expressed concerns that long-distance telephone presentation of the most critically
important testimony in Carrier's case wouidbe inadequate andthe right of cross-examination unduly
compromised if the witness was not physically present at the hearing. In addition to the problems
wrounding the lack of his availability on December 18, 1997 and the unilateral recess until January
5, 1998, the telephone testimony of Train Dispatcher Ryan simply does not pass the litmus test of
a fair, full and impartial hearing. To the contrary, the following observations from Arbitrator Hans
Qt,g No. 4450
AWARD NO. 119
NMB CASE NO. 119
UNION CASE NO. 1105175
COMPANY CASE
NO. 98005
in Award
17 of
PLB
4975
apply with equal validity in the present matter:
In this case, presence of the dispatcher, who could explain certain of the essential facts in this case,
was vital. The failure of the carrier to have him physically present at the hearing over the objection
of claimant, effectively denied claimant the right to see the witness while cross-examining him. Such
a denial deprived claimant of the safeguards which are essential and with were incorporated into the
agreement between the parties. Claimant was, therefore, deprived of a fair hearing and any discipline
assessed against him must be set aside.
WARD
1) Claim sustained.
2) Carrier shall implement this Award within thirty (30) days of its execution by a
majority of the Board.
Dana Edward Eischeri~-Chairman
Dated at Spencer, New York on March
18.
2001
Union Member Company Member
UNION PACIFIC RAILROAD COMPANY
1416 DODGE STt1EET
' OMAHA. NEBRASKA 68179
·iil
CARRIERS DISSENT
PUBLIC LAW BOARD 4150 CASE 119
The Board in this case has criticized the Carrier's use of telephone testimony saying,
"...the telephone
testimony of Train Dispatcher Ryan simply does not pass the litmus test of a fair, full and impartial
hearing. "
This case turns not on the testimony of Train Dispatcher Ryan but rather on the tape recording of the
conversation between the crew of the UP 92=9. ?CHKB west and Traits Dispatcher Ryan. Nothing said in
that recording gave permission to Claimant to opemte west of signal at CPN 26; and into CTC territory.
The testimony provided by Train Dispatcher R': an clarified what had happened; however his not being
physically present did not change the fac;s of '.vhar actually occurred. That is Claimant and his conductor
assumed they had permission or authority to pre,:----d. Train Dispatcher Ryan was steadfast in his telephone
testimony that he had not given Claimant pe.=mion or authority to proceed past CPN 262. Had Train
Dispatcher Ryan been present at the Hearing his :estmony would not have changed.
The Carrier respectfully disagrees with the ~Iz~c^:;- opinion in Award 119
R.A. Henderson