The crew was cited to attend a joint investigation, that Carrier also indicated would serve as an Engineer Certification revocation hearing in compliance with 49CFR240. Following the investigationlrevocation hearing all three crew members were visited with level 5 - 45 day suspension. The engineer trainee also had his locomotive Engineer Certification revoked.

The Organization has appealed Claimant's suspension to this Board on a variety of grounds, both procedural and substantive. .But, mainly it argues that at the time that Train C-CHYUCI-22 passed the yellow slag, it was foggy, with nearly zero visibility. Furthermore, the Organization notes that the Locomotive Engineer Review Board, in an order issued on July 19, 1996, found that Carrier's decision to revoke the student engineer's certification was improper because "the particular tat ATSF conducted, was unreasonable and unfair based upon a totality of the circumstances."

In response the Carrier argues that the Board should not be influenced by the decision of the Locomotive Engineer Review Board because that decision involved a student engineer and our decision involves a promoted Engineer. Also, our case involves the application of standards associated wish the Collective Bargaining Agreement, white the Review Board decision does not, their standards being outside our jurisdiction. Carrier insists that the test was conducted property and that Claimant should have noticed the flag and alerted the Student Engineer to reduce speed. That he did not was a violation of Canter's Rules, discipline was warranted, and the suspension imposed was consistent with Carrier's discipline policy.

Carrier's attempts at rejection of the Review Hoard's determination are misplaced. Every argument it may have advanced ignores the fact that the Review Board found the particular test conducted in this manerto be unreasonable and unfair based on the totality of arcumstances. This determination was made after consideration of the same evidence that this Board is obligated to consider. It is not, as Carrier argues, the issue of whether or not an engineer trainee was certified. decertified, or recertified. It is the issue of the test being fairly conducted. Carrieris not privileged to discipline any employee for failure to pass an efficiency test that is not conducted fairly.

That evidence demonstrates conclusively that the test administered in this mattes was conducted at night, and fog was present. On its face the staging of the test was patently unfair, unless additional measures were taken to insure that the marker would be noticeable in the weather conditions prevailing at the time. When an efficiency testis to be conducted it should lx conducted in a manner that insures that the test markers can be seen by a seasonably alert employee, even if it is dark and foggy. Carrier has offered no persuasive evidence that the test marker it placed at mile post 57 should have been seen by the crew of the train, or that it took the extra precautions necessary to insure that the train crew would notice the marker in the prevailing weather conditions.

As the Review Board did earlier, this Board must also find that the test was unreasonable and unfair, and that discipline was not warranted. Carrier simply is not privileged to impose discipline for rules violations when the test to determine compliance with the rules was not fairly administered.

The suspension imposed in this matter will be rescinded.

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