NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 6041
,JOHN C: FLETCHER, CHAIRMAN & NEUTRAL MEMBER
GENE L. SHIRE, CARRIER MEMBER
DON NAHS, EMPLOYEE MEMBER
Public Law Board No. 6041, upon the whole record and ail of the evidence, finds and holds that the Fmployee(s) and the Carrier are employee and cattier within the meaning of the Railway Labor Act, as amended; and, that the Board has jurisdiction over the disputes) herein; and, that the parties to the disputes) were given due notice of the hearing thereon and did participate therein.
On January 15, 1995, the herein Claimant, Engineer V L. (3riego, was operating Train I-199-14 in interdivisional service between Beien and Clovis New Mexico. In the locomotive cab at the time were two other employees, the Conductor and a Student Conductor. About 100 miles before Mile Post 752.4, the Student Conductor had a discussion by radio with the Train Dispatcher concerning a slow order being issued to a number of trains for that location, where a Maintenance of Way Track Welder and his Helper were working on a defective frog. Neither the Conductor or the Student Conductor ever"formalized"the slow order with the Dispatcher, nor did they specifically mention it to the Engineer. Instead they commented to each other that maybe it would be lifted when the train got their.
Engineer being unaware of the speed restriction, did not slow down, tanning past the Welder and his Helper at about 51 miles per hour. The Welder contacted the Dispatdter, who in tam contacted the crew and instructed them to take their train to Mile Post 681, secure it and await the arrival of an Assistant Superintendent. The crew was taken off the train and required to submit to a drug screen, which was negative for all three. That day, the Conductor and Student Conducts accepted responsibility for the incident, waived formal investigation and were each given one hundred twenty day suspensions. Claimant, at first agreed to waive his investigation, but then changed his mind.
The revocation of Claimant's Engineer Certification was appealed to the Locomotive Engineer Review Board, where on May 21, 1997, it was reversed. The disciplinary suspension was appealed to this Board.
After a thorough study of the entire record made before this Board, we are compelled to arrive at the same result as that of the Engineer Review Board. It is manifest in this record that the Dispatcher, the Conductor and the Student Conductor violated Operating Rules in their handling of the Slow Order. It is also apparent that the Slow Order was never properly transmitted to Claimant, or that he was made aware of it at all. The incident was compounded by the failure of the Welder to protect his work area with a yellow flag.
In the totality of the circumstances involved, even though serious injury or death may have been a result of considerable overspeed of the train in the area where the Welder was working, it was inappropriate to issue a suspension to Claimant, as it has not been shown in this record that his involvement was the result of his inattention to duty, or his disregard of Carrier's Operating Rules.
The claim will be sustained. Having reached a decision on the merits of the claim before the Board, it is not necessary to visit the procedural contentions raised by the Organization concerning the conduct of the investigation.