Public Law Board No. 6041, upon the whole record and ail of the evidence, finds and holds that the Employec(s) and the Carrier are employee and carrier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the disputes) herein; and, that the patties to the disputes) were given due notice of the hearing thereon and did participate therein.
On April 25, 1996, claimant was operating a train at approximately 55 miles per hour when the approach signals for Joel Station indicated that the dispatcher would be placing the train in the siding at that location. The speed restriction entering the siding is 25 mph. Claimant first attempted to slow his train with dynamic. braking. When this didn't reduce speed sufficiently, he applied air, and when he realized that he would still exceed 25 mph into the siding he placed the train in emergency, which stopped him short of the switch. Upon attempting to restart, less than two minutes later, Claimant placed his throttle in Run 1 for approximately 35 seconds, then quickly proceed through Run positions 2, 3 before his train started to move. Whereupon, he placed the throttle in position 4 for six seconds, and then 5, where his amperage increased to 1,045 with the train reaching a speed of 7.3 mph, when it broke in two, and went into emergency braking again.
Claimant was cited to attend an investigation, and following its conclusion was assessed discipline of a30 day suspension. The Organization has appealed the discipline to
this Boatel on both procedural and substantive grounds. With regard to procedure the Organization faults the delivery of the notice of charges. IC says that it was hand delivered rather than sent through the mail and that the short limo between receipt of the notice and the scheduled data and time of the hearing deprived Claimant of the opportunity to prepare u proper defense. The Organii$titm also contends that further ortvr occurred when the discipline decision was issued before the ttanscripto!' the investigation was prepared.
Cm the mails of the matter the Organization contends that Claimant property handled his train under the existing circumstances, it was not established at the investigation that he in any way was in violation of the several rotes cited, and that the real cause for the train breaking in two was a defective yoke. h says that the evidence is conclusive shat the draft gear had an old 509'o break.
Carrier denies that any procedural irregularity occurred in this matter, On the merits it maintains that Claimant's own testimony indicates that ha used excessive power in ten attempt to start his train.
The record in this case strongly suggests that Carrier used the investigation process merely as a device to affirm preconceived nations stn to Claimant's culpability. The investigation was held an May 17,1996. The hearing was recorded by a court reporter. The same day of the hearing before a transcript could be prepared, the Heating Officer issued what amounted to a "bench docision" and assessed discipline. Moneovor, them is tut indication in this record that before tire heating was even scheduled a Carrier Officer stated theta suspension would be issued and that retraining would be required.
White concluding that the discipline must be negated because of the obvious predetermination of Carrier thata suspension was required the Board finds it necessary to comment about the equipment detects raised as a defense by the Organization. I-Iced a ;=al stop been.exeeuted and a restart occurred without an application of excessive power, the draft gear defects would be of considerable importance in assessing the cause of the break in the train. In the opinion of the Board, though, it was the emergency stop trosulting from Claimant's inattention, and then an attempted restart, with an application of excessive power, without full brake release that caused the draft gear to separate. Although post-event examination disclosed old breaks these defects wore not critical until the emergency stop and excessive application of power Claimant used to get going again. Claimants mishandling of his tram had ought not be excused because of the defects in the draft gear. Mishandling of a train by an Engineer may warrant discipline even if defects in draft gear arc found to be present. In other words a fortuitous equipment defect is not an excuse to avoid responsibility for an apparent misapplication ~ emerge»cy brakes and excessive power on restart. ,