P-aRTIES TO THE DISPUTE:
UNION PACIFIC RAILROAD COMPA~N-Y
 (Western Region)
 -and
 BROTHERHOOD OF LOCOMOTIVE ENGINEERS

STATEMENT OF CLALVI : Appeal:n_ the UPGRADE Level 4 Discipline of Engineer A. F. Jimerson and request the a xpungement of discipline assessed and pay for all lost time with all seniority and vacation rights restored unimpaired. Action taken as a result of investigation held March 6, 1995.


OPLN70N OF BOARD : On February 1 S, 1995,Mr. .A- F. Jimerson, ("Claimant") was the Engineer assigned to operate train KSLAV-15, westward towards Los Angeles, along with Conductor R. A. Salazar. At NIP 41 on the Los Angeles Subdivision, near Turner Avenue, MTOs Mark Jones and Scott Sullivan conducted an efficiency test on Claimant's train by placing two sets of torpedoes on the main line adjacent to each other and approximately 155 feet apart. The intent of the test was to see if the train would slow from maximum authorized speed to restricted speed traveling no greater than 20 MPH. At about 3:00 am, Claimant's train exploded all four torpedoes as the MTOs observed and followed the train for more than two miles, noting that the train was never reduced to an empirical speed of not snore than 20 :;.:lei per hour until it headed into the siding of Montclair near NIP 36 on si=nal indication.




reSt':Ct° , ^'_e 4a\eda at - -; eqidled - T ., -a in in the ai


                            UNION CASE NO. 06265A

                            COMPANY CASE NO. 9503699

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siding where the managers boarded the train and interrogated the crew. At a subsequent disciplinary investigation, MTO Jone testified and NITO Scott corroborated testified that during the interrogation of the crew at Montclair, neither Clairna~.t nor the Conductor was aware that they had exploded torpedoes:

          "...they came to a stop about ---=:o~i...ateiv Milepost 35 and a half, and we each boarded the locomotives and I :a.-teed to both Mr. Jimmerson and Mr. Salazar and I asked them if they had '.'.-ard - Via. They said, well we thought we heard something, we didn't kno'.v ·.~_=: it was, we thought maybe somebody was throwina something at the loco =owes. They were wearing hearing protection; they were in a Comfott cab wig windows and doors closed. and that was the response that we act was that :he,; couldn't determine if there was a torpedo or not that had zone off at that location..."

Notwithstanding, Carter subsequently cha:=°_d the crew with Rules violations and following formal investigation assessed Engineer Jimerson a Level 4 UPGRADE discipline for allegedly violating the following Rules:


    5.7 Torpedoes


            If one or more torpedoes explode, the train must slow to restricted speed immeLately and remain at this speed until the head end is 2 miles beyond where the torpedoes exploded. (Illustration with Diaor = _a. not reproduced)


            when placing torpedoes. -.vo must be placed not less than 1 50 feet apart on each rail. They must not be placed near station buildinzs, crossings, or on other than main tracks and sidings. (Illustration with Diaa-am 3. not reproduced)


    6.2 7 1Iovement at Restricted Speed


            When a train or engine s required to move at restricted seed. movement must be made at ,.speed that allows stopping within half the range of vision 'ort of:


            s Tram

            s Enoine

              s Railroad car

    ' pL8 No. 4USo

                                                AWARD NO. 94

                                                NMB CASE N0. 94

                                          UNION CASE NO. 06265A COMPANY CASE NO. 9503699


                                  3


                    0 Lien or epui=ment fouling the track

                    0 Stop signal

                    or

                    a Derail or 3,M-.h lined irr properly


                    rne crew must kee-i a :ookout for broken rail and not exceed 20 \i.°h.


                    !'~r·p];· --th -he,-- _ - --.~nr: Until the iyhP-lq -each a point where rno%-ement at restricted speed is no longer reiuired.

      Careful analysis of the record e·: _dence convinces this Board that the disciplinary action imposed in this case rnust be reversed. Car--._er did meet its initial burden of going forward with


-- sufficient evidence to make out a prima-;acie case of Rules violations, when it proved that the
      Claimant took no action to slow his tra-t _to restricted speed in response to the detonation of the

      torpedoes. However, Claimant and the Or_a-uzation then came forward with persuasive probative

      evidence to rebut that prima facie shown= of culpability, when they showed by a preponderance of

      the evidence that neither Claimant nor ,Ii: Conductor was able to hear and recognize the sound made

      by the torpedoes. In the final analysis, Carrier did not carry its overall burden of persuasion that

      Claimant was culpable on this record.

      All thin.-s being equal, the detenatier_ of four torpedoes should be readily detectable in a conventional cab. It should be obvious -,ha: mere self-serving assertions of "I didn't hear it" would not be enough to persuasively rebut Carrier's e-.idence. But in this case, it was proven that Claimant and Conductor Salazar were inside loco-etiva L-P 9465, which was at that time a unit equipped with a radically different style of cab. The so-called North American "Comfort Cab", has a sounddeadening interior operating compartment, =ar superior than conventional designs in noise reduction.

        PLd No. yyso AWARD NO. 94 NMB CASE NO. 94

UNION CASE NO. 06265COMPANY CASE NO. 9503699


KSLAV-15 was traveling approximately 6= MPH in 8°' run (maximum power output and noise level) at MP 41 when it exploded the two sets of torpedoes. The two MTOs were positioned away from the train in close proximity to the torpedoes, sitting in their Jeep with doors and windows open so they could hear the bursts. However, it is undisputed that Claimant and the Conductor were in


the sound-deadening cab, operating a full power, with the windows closed, the radio on, and wearing ear plugs. Their testimony is palpably Y,ersuzsit a that they simply did not hear the torpedoes, other than as a dull thud consistent ~.vith sotneo-: ;l_rowing rocks at their train. Given the state of this


record, Carrier failed to carry the burden of proving Claimant guilty of the charges against him.

 ALV ARD
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 Mav 8. 1999
I~'Z -Z,
 Company Member