4 PUBLIC LANV BOARD N0.4450





UNION PACIFIC RAILROAD COMPANY
 (Western Region)
 - and -
 BROTHERHOOD OF LOCOMOTIVE ENGINEERS

OPINION OF BOARD : Engineer L. G. Clemens (Claimant) established seniority as a SwitchmanJBrakeman on the Oregon Second District in May 1978 and as an Engineer on same said district in November 1992. On February 28 1996, while working as an Engineer, Claimant was operating train MESEZ-23 against the current of traffic (operating East to West) between Biggs, Oregon (Milepost 103.2) and Crates, Oregon (Milepost 81.6). He was operating under the authority of Rule 15.3 (as specified in Track Bulletin Form 2, and the Union Pacific General Code of Operating Rules. Claimant and his Conductor erroneously concluded that, under this authority his train could operate at a speed of 49 mph on account of Timetable Special Instructions. However, the Special Instructions also verified that all existing speed restrictions remained in effect.







train entered the yard at The Dalles (Milepost 85) in excess of 35 mph. He was assessed UPGRADE Level 4 Discipline following a formal hearing on the charge that, while operating MESEZ-23 between Hinkle and Albina, Oregon, on February 28, 1996, he failed to proceed at restricted speed

 between MP 88.0 and MP 81.7 at The Dalles, Oregon when operating against current of traffic. -
 The disciplinary action must be reversed, primarily because of an act of prejudgement by Carrier managers which fatally prejudiced the record before the charges were even served on Claimant. In that connection, MOP Loring Kolut had interviewed the crew and was in the process of dowrrloading speed data when another Company officer, T. G. Repp, peremptorily removed the crew from service shortly after they arrived at the yard office. To make matters worse, on February 29, 1996, several days before a Notice of Investigation was sent to Claimant in this matter, the Carrier officer made the following entry in Claimant's work history:

      "02/29 CM 02/29/96 17:48 "'ENO-CRT"· CERTIFICATION STATUS CHANGED FROM Y TO N

      CM 02/29/96 17:48 '·ENG-CRT" CLASS SERVICE: DE-CERTIFIED

      CM 02/29!96 17:48 ·'ENG-CRT" SPECIAL CONDITION CODE 23 DEACTIVATED

      CM 02/29/96 17:48 ""ENG-CRT·" THIS UPDATE WAS PERFORMED BY OADM248"

Since the work history had already noted the fact that Claimant had been decertified prior to the hearing, we concur with the Organization's conclusion that Carrier had judged him guilty for purposes of its Upgrade Discipline Program as well and that the determination of decertification coincided with determination of Level 4 Discipline. In consideration of this, Claimant was not afforded the fair and impartial hearing to which he was entitled under the Agreement and for that reason alone his discipline cannot stand. It is also worth noting, however, that Claimant's confusion about appropriate speed and the location of yard limits was not without foundation since the
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Timetable he was provided with contained misleading information which was inconsistent with the requirements of the Rules.

Based upon all of the foregoing, we conclude that the Level 4 discipline must be rescinded
 and Claimant made whole. This Board is well aware of the contentious issues and difficulties which
 are presented when an arbitration tribunal under Section 3 of the Railway Labor Act reverses
 wrongful disciplinary action upon which Carrier has also premised a revocation, suspension or
 decertification action under 49 CFR Part 240.1. In seeking and obtaining reversal of the UPGRADE
 disciplinary action through arbitration before this Board, the BLE concedes that the holdings of the
 NRAB First Division in Awards 24782 (Gerstenberger) and 24424 (Mikrut) are authoritative for the
 principle that we have no jurisdiction to remedy FRA engineer licensing action which was premised
 upon faulty disciplinary action by Carrier. However, nothing in those decisions precludes us from
 directing Carrier to promptly apprize the LERB of this Board's decision that the Carrier's finding
 of a speeding violation was void ab initio and the disciplinary suspension imposed on action taken
 against Claimant was a miscarriage of justice.
                      f~,~ h%~- NVs0

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AWARD
Claim sustained.

 ' Dana Edward a, Chairman

              Dated at Spencer, New York on $gptembcr 24. 1998


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;Union Member Company Member