PARTIES TO THE DISPUTE :

 L.",710N PACIFIC RAILROAD CO_NLP-=\-Y
 (Western Region)
 - and -
 BROTHERHOOD OF LOCOlvl0TjZE EN=TERS
STA TEMENT OF CL_kT--,\,i :

OPINION OF BOARD : On July 19, 1996, Engineer J. C. Aycock ("Claimant"), with 25 years
 of service as an Engineer--8 years in the te-1 itery in question--was called on duty at Nampa, Idaho
 at 1100 Mountain Daylight Time. He wor ked as the Locomotive Engineer on the OGRBA-17, a
 loaded soda ash unit train with 100 lcads and 14,775 tons, west bound between Nampa and La
 Grande, Oregon. A total of 9 locomotives on the train were distributed in three sets, one on the lead,
 one near the middle and one or, the rear of :'ce train, operating in Distributed Power (" DPU") mode
 controlled from the lead locomotive. the UP 9390.

At-2:3 5 p.m., at W eatherby, Ore=en. -re GGRBA-17, westbound on the main track passed the signal at the west end of :he siding at ':S-est Weatherby running into the side of the SENPV-18, an east bound r.ted auto ar.d COFC;TOFC Taro with 41 cars and 7 locomotives, operating in conventional 1(none-D?U) mode. The OGR3A ;vas eperatir.g at about 25 miles per hour on an




ascending grade and the speed was reduced but Claimant's braking effort was insufficient to stop the train before the collision occurred. ,

The SENPV-18 was struck at about -he 21st rear car and derailed the 21st through the 17th
 rear cars, 4 of which were auto carriers and = of « hiich were on their side. The fou..th load of autos
 was leaning. The rear 16 cars were still or -:e ~zck as were the lead 20 cars and locomotives of the
 SENPV. The lead locomotive of the OGRB--k, was leaning at a 30% angle and the second
 locomotive was derailed. Conductor R. E. Miller on Claimant's train was seriously injured and,
 according to Carrier's evaluation, property a rd equipment damage exceeded 5150, 000. Claimant
 was withheld from service commencing July 19, 1996 and served with a notice of proposed
 discipline and waiver of investigation on Julv 22, 1996, which he declined.

Following due notice and a three-day hearing conducted August 22,23 and 26, 1996 by NIT 0 Gary Bonner. On the basis of the hearing r; cord, Carrier assessed Claimant a Level 4.5 UPGRADE suspension by letter of September 5, 1996, as follows:



For the alleged rule violations, Engineer Aycock, served a 60 day suspension from service from

 Saturday, July 20, 1996, through Tuesday. September 17, 1996. Engineer Aycock's locomotive

 engineer certification was also revoked for one !1) month as provided in CFR Pa--t 2='0.307 and

 240.117, °ara=.aph G.


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Prior to and throuShout the hearing, BLE re-resentatives timelv raised and preserved objections to the fairness and i-npar iality of the proceedi_s. B..· letter of August 19, 1996 and enclosure, Vice General Chair Bakker reaue<_ted that Beise Sen-ice Unit Superintendent J. W. Heavin, in the interests of fairness and impartiality. deli=na:e someone other than N/ITO Gary Bonne- to service as the Hearing Office: for Engineer Avccck's investigation:


      Dear Jerry;


    LZ reference to the inv estieation of En_m°_er J. C. A ycock, it has come to this committee's attention that Mr. Gary Bonner shall be the conduc__. _ of:cer.


    The B. L. E. Finds that due to statements made by Mr.. Bonner in sworn denosition that all Railroad employees lie, and the attached letter to Mr. ';J, B. Hulse confirming these statements in writing by Mr. Bonner disqualify him from being a fair and impartial conducting officer. The B. L. E. is requesting that \vL. Bonner not conduct this ''earner


    The sworn testimony has been requested and shall be made available at the earliest opportunity. Thank You for your consideration.


                        (Eac=osure)

    iLlr. W B. Hulse

    BLE Division 362

    P.O. Box 2826

    LaGrange, Oregon 97850


    June 20, 1996


    Dear Mr. Hulse


    Reference your letter datedMav ?3, 1996_qie no. vVBH-KCJ-0513-OI concensing rite :rvesrigation of K. C Jones which I conducted.


    If this letter is meant to be an a?peal of the discaline issued Mr. Jones as a result of this investigation, you nave sent ti to the wrong auti2or:n4; to tie valid it must be sent to Service (,nit SurerintendentJ VV. Heavin.


    If ,vou soil consider .-his let;=r, alrhcu' sent :o ;he :n:proper authari y, to bean 2ppeaffor removal

    of discipline to :he X. C Jones case, :h=r aapeal:s den;ed.


    i?_=; s,~; :n~ :o :he 2rd_~:re~ c~it of-,,' ur!e:^.er, wh:'ch .yes nethi,':g :e de with :he Jen_s case, but wnic.5

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      you have used to make personal accusations against me. You have taken several words out of contest in a matter completely unrelated to and removed from any case eccept its own. These words were not what I would have said or meant, but were :he result of relentless questioning by an attorney who's sole motivation was nor to get to the trt,h, burro discredit everyone involved in the case in anyway possible. 1 withdrew my words afrer l said them and made rhis gual-ded statement on the record "I have known a lot ofgood employees tha: at cne rime or another have been caught in something, and they have fabricated the circumstances". I am accountable for my actions which have been fair, honest, moral, and seeking the tnrth :n ail matters; and not for words that I was tricked or bamboozled into saying 5v a merciless =cu-.'socating atto»iev.


                              Respeeriveiy (sic) Gary Bonner

Notwithstanding this objection, «hic:a was renewed and e:;panded upon at the outset of the hearing, MTO Bonnet did conduct the proceedings as Hearing Officer, including dismissing the Organization's renewed motion that he re:·~se himself. Significantly, acting as Hearing Officer, Mr. Bonner refused to discuss the which documented his own prior sworn assertions that even "good" railroad employees "caught in sometHin=" will "lie" or "fabricate the circumstances". The following eac°rpt from pages 19-20 of the uz^script ofinvestigation shows' r. Bonnet's disposition of the Organization's objections to his serving as Hearing Officer:


    Mr. A J Bakker: This is Local Chairm-,-- .A J Bakker. Division : 62, BLE. We have a objection that, Mr. Bonnet, it states on this wimess smtenent that you are the Hearings Officer. We find that you should disqualify yourself from being the Hearings Officer, based on the fact, under sworn testimony, that you have stated that all railroad employees are liars. You-second of all, you have stated, in a letter to Mr. NV B Hulse, confirming the fact that all railroad employees are liars. We have the court case; we have your testimony; we have the letter to Mr. Hulse. We wish to enter that as an exhibit and we. as an Organization, are asking you to remove yourself as the Hearings Officer, based on the :act :hat you cannot conduct a fair and impartial hearing, with the fact that everyone at this table, or in this room, for that matter, is a liar. You are not fair; you are not impartial with that thought in your heart


    Mr. G L Brnner: A ;e you done; \Lr. 3L:_ker''


    Mr. ? ? Bakker: W-,Here _oing tit-we'r_ going to put these objections in as-as-do you have the one that's marked."

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      Nlr. A, J Bakker:Okay. And we are --skin, -~e-the Organization-or the Company to get a finding

      and find another - another Conducing Of _cer at this time.


      Mr. G L Bonner: Okay. F;,st of alL I o~ °:; to ~ our statement-it it irrelevant and rnisleading. We

      are here to conduct a fair and impat dal u_~ esd=a on. The object is to discover all the facts about the

      rvarter under investigation. We must ::et _.dulge in supposed legal technicaliries and techniques, in

      an at-.e=t to confound the other pa.^.es in ^is ^.~-°stigation. We will proceed with this investigation.

      and I will advise all who are taking p a7. ro use ;our efforts to get at the cuth so a decision can be

      made, and, if necessary, the true facts of --'-3 :na-er can be reviewed at a later time. I will continue

      as the Hearing Officer in this investigation: your request is denied.


      Mr. A J Bakker: Mr. Bonner. have you made a statement, under sworn testimony. in a court of law in the United States of America. under the Constitution, that all employees are liars?


      Mr, G L Bonner: No. Sir, I have not, and I'm not-


      Mr. A J Bakker: Then I would ILI-- to --


      Mr. G L Bonner: going to answer anv more questions, Mr. Bakker. I'm not here to answer questions. We're here to hold a fair and impartial investigation for these employees. So, we're not going to talk about your objection any longer.


      Mr. A J Bakker: As a fair and impartial Hearings Officer, you have to -- you have to be available to answer questions, you have to male ;an cpinien on what-- what happens, what you see here, and do here, and if you've just told me that you have never made that statement in a court of law in the state-in the United States of America, that statement itself is-is-you have perjured yourself, because it says right here, and you signed it.

At page 339 of the transcript, Hearing Oracer Bonner flatly refused to allow BLE to introduce into the record a certified stenographic transcription of his own prior prejudicial statements concerning the veraci:v of employee witnesses in disciplinary investigations.

A close examination of the hear-= transcript shows several other instances in which the Orsanization's concerns that lair. Berzer wculd be less than impartial in his conduct of the hearing


appear to be borne out on the record. Sea ;=Script pages 10, 16. 22='', 250,'_53, and. in addition

 to these -Iioublln° lapses 1n proce3'-,IL '.'.--e -roces5, thus re-ord also comains more undisputed
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      evidence of fatal inegular:ry in car::=r's handlirg of this case. After the accident under investigation but weeks before the hearing coi~_..-anted, the following news report about the incident near Weatherby in Eastem Oregon appe<red in a August 7, 1996 edition of "The Oregonian":


                                    r

          The conductor and .he en_inee: on _ e .: es;:-.o·:..d train ~ciled to heed a s:gnal waning !hat the track

          wasn't clear. said Ed Trandahl, a t_-:e=?ac_:c spokesman in Omaha.


          Investigators dnem=ned the si=ai -.:~ :ao:=:_= and the train had pienty of time to stop, T_andahl


          said. He doesn't knew if eithe: c_ t`_ _ _ _, e es will be disciplined.

      It is not open to reasonable deb :1-.at this is persuasive evidence that Canner blatantly prejudged Claimant's culpability be_cr a -he Or ganization were even allowed to present his primary defense at the hearing, i.e. testimony mom _e crew on the OGRBA stating that they were working on clear (green) signals west bound en .~ main line; that they had a clear indication at East Weatherby; that they were unaware --'-at -be S E\-t V was still entering the siding until they rounded a blind curve approximately 1300' =em :he -,vest end and saw tire signal at West Weatherby with a double red indication; and drat the E n2"eer then placed the locomotives into full dynamic braking mode and attempted to place the train: automatic brakes into emergency.

      In the final analysis, this clai= must be sustained without reaching or determining any of the controversial evidence concerning the meats of Carrier's deter-rmnation that Claimant was culpable for the accident. inat result is recue? Because of the above-described fatal cure of Carrier to provide Claimant with the "fair arid :-pa-ial investigation" mandated by the L-P../BLE System Discipline Agreement. On that bas`s. _° c'.a=^ is sustained and Cat-ier is directed to rescind the Level =1.5 UPGR.=_DE disc:pl_nar: ;_s,e^sien o_17nameer'vcock.

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      As to whether back pay other ,:use due and owing to a successful Claimant is payable during

periods of FRA suspension or revocation, this Board adopts the position set forth in the following
 authoritative decisions of the NR:1B Fi=st Division:

      ...(Ijt is believed that carrier denied C:a=-..a~: due process in this matter which is a violation of Claimant's Agreeme at right to a fair __~ -ca--nal investigative hearing .... Given the abov a reasons, this Board is compelled to rule that :.e pence claim, which has been filed in this mater, must be sustained as presented. Having made the preceding determination, however, the Board is also compelled to rule that we have no jurisdiction to remedy the FRA's 30 days revocation of Claimant's Engineer's Certification. Such a .--arter involves a statutory appeal procedure; and the questions of whether or not said revc cacen ·.i as proper, and whether or not Carrier will be required to reimburse Claimant for lost wages inv-°-;: cur:.ne the period of said 30 days license revocation will ultimately depend upon a rulir.= by the FRA which that agency has the sole and exclusive jurisdiction to make.


N'R-4B First Division Award 24424 (Deck:: 4'=099), John J. Mil-rut, Jr., Referee (Emphasis added).

      The Board is aware ± at Claimant has appealed the FRo's -0-day revocation of his Locomotive Engineer's Cer tirication. The Board hz. ,o jurisdiction to review the FRA portion of this case. The questions of whether or not the revocation was proper, and whether or not the Carrier will be required to compensate Claimant for lost wages incurred during the period of the license revocation are issues that must be determined by the FRA. the agency invested with sole and exclusive jurisdiction over such matters. See First Division Award 34-12?.


NRAB First Division Award 24782 (Dccket 4=492), Katherine Gerstenberger, Referee (Emphasis added).

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1) Claim sustained.

 2) Carrier shall implement th·s A ,z-ard within 30 days of its execution by a majority of the Board.

Dana Edward Fischen, Chairman

Dated at Spencer, New York on Febr uarv 28. 1999


Jnion Member G

 Company Member