Carrier File No. 9204197

                            Organization File No. 1^~ 12172

                            NMB Code 106

                            Claimant: Engineer K. W. Sibley


PARTIES TO THE DISPUTE:

 BROTHERH=OOD OF LOCOMOTIVE 7NG7N?7:RS

              AND,


UNION PACIFIC RAILROAD CCMP?=7--'

 S'r?TEY°NT OF CLAIM:
      The Organization aY_ea_s t_=a 30-day deferred suspension of Engine er K. W. Sibley a_-_d r=-Guests the discipline be expunged from the perscnal record of Claimant and he be paid for all time lost.


FINDINGS
The Board, upon consid=_rat_cn of the entire record and all of the evidence finds that th=- parties are Carrier and Employee within the meaning of the Ra_lway Labor Act, as amended, that this Board is duly constituted by Agreement dated May 19, 1989, that this Board has jurisdiction over the dispute involved herein, and that the parties were given due notice of the hearing held.

 By certified letter dated September 22, 1992, the Claimant was notified to report to the Office of the Manager of Train Operations, Milford, Utah, ore Wednesday, September 23, 1992, at 9:00 a.m. for a formal investigation. The purpose of the hearing was to determine the Claimant's responsibility, if any, for failing to stop his train immediately when warned by Hot Box Detector to stop for possible exception. His failure, if proven, would be a violation of General Rules A, B, D, and E and Operating Rules 106-1, 108 and 109A, as contained in the General Code of Operating Rules. The alleged occurrence happened on September 18, 1992 when the Claimant served as Engineer on the CDAM_A-17. The location was approximately at MP 388.25, and happened around 2:45 p.m. MDT at Moapa, Nevada. The hearing was postponed twice and was held on Monday, October 5, 1992.

      On the day of the incident, the crew was traveling Westbound

                                                  No. t


'with its train near Moapa, Nevada. The train was a coal train (Train CDA1rLA-17). When they were passing over M2 388.25, the crew received a high reading from a detector. The high reading forewarned the crew that they were to bring their train to a nox-mal stop. Thereafter, t__=_ Conductor is to disembark and inspect the car which caused the indication. Once the Conductor finds the defect, he is to report it to the Dispatcher and set the car out at the next station.

      The pulse tapes remcved from the engine subsequent to the

incident, showed that t=a train was stopped using the dynamic
 brakes. The Ccnductor to-d the Claimant not to set air which
 would have broucht the train to a stop more quickly. The
 Conductor test ifi=d that in his experience, the use of the train
 brakes would have cause. zhe journal on the axle to twist off
 faster and he feared the d=erailment in that case would have
 occurred on the main track. After the train was brought to its
 initial stop, _t started mo·ring again up to what appears to be a
 speed of 5-6 M_'-z. The Cond-__z:,r t=estified that he was walking _
 the train into the s'_di-_g at Mcapa when he realized the defective
 car had derailed. At that - -n_, the pulse tape indications were
 and the Conduczor's testimcnv was, that he told the Claimant to
 "plug it" and the train was put into emergency.

                    C?RR=?R'S POSITION


The Carrier argues that zhe Claimant violated Carrier rules when he failed to stop his train immediately when he received the warning from the "hot box". They contend the train could have been stopped much faster had th^.=- Claimant used dynamic brake along with the train brakes. They say his failure to do so was a violation of the rules.

 The Carrier also asserts that the Claimant's disci_oline history justified the 30-day deferred suspension.

                  ORGANIZATION' S POSITION


The Organization claims the Carrier erred procedurally when they did not send out the first notice of hearing in a timely manner. They argue that the Claimant never received the notice of hearing before he receiv=ed the notice to postpone.

      On the merits, the Organization argues that the Claimant was

told not to use the train brakes by the Conductor and adds that
 there was no reason to over°.a =_ the Conductor's direction because
 he felt they were stowing the train in the safest manner. They
 point out that it has beer^_ the _ experience of engineers and
 conductors on the railroad that if you use dynamic braking along
 with the train brakes, it accelerates the twisting off of the
 axle. The Organization furth-r argues that the crew reacted
 immediatelv to the "hot bcx" warning and handled the train in
 what they deemed to be the safest manner possible.
                                              PLS jjc). (0 55 Case No . ~


                        DECISION


In reviewing the actions of the Claimant, the Board finds that he complied with the instructions of the Conductor. The Claimant could cite no reason why he should have overruled the Conductor. Furthermore, both men believed they were in compliance wit: the rule in as much as they were stopping their train in the safest manner based on their experience and judgement. The Carrier established that the Crew could have stopped the train faster using the air along with the dynamic brake. However, what is not clew= is whether the axle would have twisted off faster if the Crew had used the air or whether their failure to use the air, slowing down gradually, was more damaging. Without proof one way or the other, this Board has to find that the Crew was technically in violation of the rule. However, we find the penaiz~y issued excessive.

 The 30-day deferred suspens_t: is to be reduced to a 10-day.
 deferred susae__^_s ion. -

                        ~1


                C= ~. 324mperini

                Chai~z a_-_d Ventral Member


                        Cue.

This ~~ day of .~- , 1998.
 Denver, Colorado

 3