STATEMENT OF CLAIM: Claim of Engineer W. 0. Nelson of North Platte, Nebraska for all(o time lost (1 day attending Formal Hearing) and removal of all entries of this discipline (UPGRADE Level 2) from his personal record.
OPINION OF BOARI?: Engineer W. 0. Nelson ("Claimant's was working as an Engineer on train CCERO-01 in the North Platte, Nebraska yards on September 4, 1995. While backing his locomotive consist from the west end of track 602, in the westbound coal yard, to his train in track 290, using hand signals from his Conductor, S. L. Johnson the Claimant ran through the rigid track 611 switch. Some damage occurred to the rigid switch but there was no damage to rolling stock or injury to personnel. Following an investigative hearing conducted September 19, 1995, Carrier notified the Claimant that his personal record had been assessed with Level 2 under the UPGRADE Progressive Discipline Policy for his alleged culpability in the run through of the 611 rigid track switch. That level of discipline required Claimant Nelson to serve a one day or one round trip alternative assignment with pay to develop a corrective action plan to modify behavior.
In this appeal, Claimant and the Organization maintain that Carrier found him culpable contrary to the record evidence, which demonstrates he was operating with exaggerated slowness and caution in deference to the inexperience of his Conductor and that the proximate cause of the
run through was inadequate communication by the inexperienced Conductor while he was out of sight of Claimant. That conclusion is supported by a careful examination of the testimony by Conductor Johnson, who had only 6 months railroad experience and 3 weeks familiarity with the territory at the time of the incident. That testimony establishes that Conductor Johnson started the movement with hand signals from the lead locomotive in the direction of the movement but went out ofsight of the Engineer while rounding a right hand curve just before he saw that the rigid switch 611 was lined against the movement. He abruptly switched to radio when he realized he had gone out of sight around a curve:
So far as the record evidence shows, Claimant Nelson stopped his train as soon as possible after receiving the unexpected radio communication to slow and then stop, followed by a wash out hand signal from Conductor Johnson who got off the consist and moved North of the curve back into line of'sight. A scatter gun approach of discipline to Engineer Nelson just because he was at the controls during this unfortunate incident cannot be validated on an evidentiary record requiring riflelike accuracy of disciplinary action only of the culpable employee. In the absence of any evidence that the Engineer had a contributory share of Conductor Johnson's violation of rules in the run through, the claim for reversal of Engineer Nelson's discipline in this case must be sustained.