Organization's File No. 97023

                      NMB Code 106

                      Claimant Engineer C. Sotomayor

                      I


PARTIES TO THE DISPUTE:

 BROTHERHOOD OF LOCOMOTIVE ENGINEERS

              AND


UNION PACIFIC RAILROAD COM?=-~Y

 Statement of Claim:

      Appeal of the Upgrade Level 4 Discipline assessed to Engineer Ms. C. Sotor..aycr and request the expungement of discipline assessed and pay for any and all time lost with all seniority and vacat'_on rights restored unimpaired. Action taken as a result of formal hearing held February 25, 1997.


Findings:

 Upon the entire record and all the evidence this Board finds the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this Board has jurisdiction of the parties and over the dispute involved herein.

 The Claimant was first '__-ired in 1977. In 1980, she was promoted to Conductor and became an Engineer in 1995.

 By certified letter dated February 21, 1997, the Claimant was directed to appear at a formal Investigation to be held at the office of the Superintendent, Los Angeles, California. The purpose of the hearing was to determine if the Claimant was responsible for violating Carrier rules on February 20, 1997,

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        when, while serving as an Engineer on LAYR-20, she allegedly


_ failed to comply with Track Bulletin, Form B #5213 and the

        instructions of the Foreman in charge, at approximately 4:15 p.m.

        The Claimant was advised that if found guilty she would be in

        violation of Carrier Rules 6.31 and 15.2. Rule 15.2 reads as


_. follows:

            Rule 15.2 Protection by Track Bulletin Form B


- Display yellow-red flags as Specified in Rule 5.4.3
            (Display of Yellow-Red Flag).


            When trains are within the limits during the time stated in track bulletin Form B, they must:


_ * Move at restricted speed.
            * Stop short of a red flag.

I.
 _ However, trains do not need to comply with the above
            reauir:ments if instructed otherwise as stated below, or if

,:_ the entire train has passed a green flag or cleared the
            limits.


            Before entering track bulletin limits, a crew member must attempt to contact the employee in charge by radio to avoid delay and report the train's location and the track being used.


            A. Verbal Permission


            1. When granting verbal permission, use the following words:


            "Foreman (Name) (Of cana No. Using track bulletin

- No. _ Line No. between MP - and MP - on
            Subdivision.


`-- 1. To permit a train to pass a red flag without stopping,
                add the following:


                "(Train) may pass red flag, located at MP - without stopping."


                The train may pass the red flag at restricted speed without stopping.


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                2. To permit a train to proceed at other than restricted speed, add the following:


_ " (Train) may proceed through the limits at MPH
                (or a maximum authorized speed)."


                The train may move through the limits at the speed

-- specified, unless otherwise restricted.

                3. To require the train to move at restricted speed, but less than 20 M=HI, add the following:


                " (Train) must proceed at restricted speed but not

-- exceeding MPH." (Specify distance if necessary.)

                B_ Repeat Instructions


            A crew member must repea= the above instructions, and the employee giving the instr_ctions must acknowledgte them before they can be =ol1owed.


            C. stop Column


            When "STOP" is written in the Stop column, a red flag must be displayed at the beginning of the limits. The train must

_ not enter the limits until authorized by employee in charge.

        On the day of the incident, the Claimant's train was operating over the Santa F=_ Railroad when they approached an area

P
        of track covered by a Form B 3ulletin 5213. The Conductor of the

        LAYR-20, was in communica-ion with the Foreman in charge of the

        Form B Bulletin. According to the tape provided at hearing, the


- following exchange took place:

 r:
            FOREMAN: UP 9433 East - Do yc,: copy? Over

t: _

            WELLS: UP 9433 East. Cver


            FOREMAN: Foreman Dl_=-,ace of Gang #1 , your track bulletin

                    Form B #5213, line number 1, mile post 46.8 to

                    50.4 all r-racks cn Ca;on Subdivision. (Inauditle)


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      UP 9433 to pass the red flag located at mile post 50.4 without stopping. And 10 mph from mile post 50.0 to 49.6. Over.


      FOREMAN: Did you cony that UP94-?


      COMPUTER: Mile Post 64.11 (inaudible) track. No defects.


      WELLS: Track Bulletin Form B #5213, Line Number 1 between

      mile post 43.6 and mile post 50.4 on Sub-Cajon

      Subdivision. Gives UP 9433 permission to pass red

      flag located a= 49.6 without stopping.

      (Inaudible) for men and equipment. Over.


              FOREMAN: Yeah, the red flag is at mile post 50.4 but yeah that's okay on the repeat and I'm (inaudible) high as soon as your clear. Over.


              WELLS: Okay - the r__ =lags at 50.4 and you will high ball it. C%er.


      FOREMAN: That's correct. You guys have a safe t=ip.


The crew continued through the restricted area initially at 10 MPH. However, within. the restricted area the speed of their train did get up to about 31 MPH. As the train was going by the Foreman, he radioed them and asked what happened to the 10 MPH. The Claimant immediately reduced the speed of her train, but, the Manager of Yard Operations was called and advised the crew had committed a Form B violation. The crew was interviewed and subsequently were cited.

 By certified mail dated Ma=ch 3, 1997, the Claimant was notified that the Carrier demermined she had violated the cited rules and she was being issued a Level 4 Discipline, which, w:ten coupled with her discipline .--.m=tus under the Upgrade Policy resulted in a Level 4 Discipline, which was a thirty (30) da suspension without pay, as we-= as, the requirement she pass =he necessary annual operating rules or equivalent examination. te_°ore she could return to work. As a result of the discipline, =he Claimant no longer met the qualifications requirements for the

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 position of Locomotive Engineer as specified by the Federal Railroad Administration in 49 CFR 240.

 The Organization appealed the Carrier's actions through the appropriate channels and the case is now before this Board for review.

                    CARRIER'S POSITION


The Carrier claims the Claimant violated the cited rules when she operated her train =':rough the Form B in excess of the 10 MPH sped restrictions o-ae-ed by the Foreman in charge of the track. Fu-thermore, the Ca--_er points out that the Claimant's train traveled in excess of 31 MPH over the track involved. They maintain that the infract-_o-warrants a Level 4 Discipline underthe Upgrade Policy, which when combined with her Disciplinary status resulted in a Level 4, thirty (30) day suspension without pay.

                  ORGAN=TION'S POSITION


The Organization raises the procedural argument that the Offer of Waiver should not have been sent with the charge letter. They contend the inclusion cf both should be considered a fatal flaw since it is in violat_cz of the Upgrade Policy.

 As to the merits, tie C=ganization maintains that the rule requires the Foreman should be held accountable in this matter. They point to the tape of the conversation between the Conductor and the Foreman wherein the Conductor repeated the Foreman's instructions without reiterating the 10 MPH speed limit. They say if the Conductor's response was incorrect, the Foreman should have corrected the misunderstanding. They contend that is the main reason to repeat the instructions. They claim there was a lot of radio traffic that day and when the Conductor did not repeat the 10 MPH instruction, the Foreman should have realized

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 the possibility that the Conductor had not heard it, which was
 _ the case. In any case, they say the Foreman was the one who
 erred when he okayed the repeat and only corrected the red flag
 location.
 F'
 - Further-.more, the Organization insists the term "high ball"
 _. has the specific meaning of going ahead at full authorized speed.
 They say when the Foreman used the term and the crew had not
 heard the 10 MPH restriction, they had every reason to believe
 they were authorized to proceed at their authorized speed which
 w was 40 MPH.
 r.
 - The Organization maintains the Foreman's faulty
 instructions, especially w:n2- absent a correction of the
 Conductor's repeat, shoe-d n=:=,2 the discipline issued to the
 Engineer who was merely =e11ow_-g the instructions heard and
 - repeated by her Conductor.

                              DECISION


      This Board agrees wit.^. t~2 Organization's contention that the intent of the rule requiring the crew member to repeat the instructions issued by c=2 7:,-man are designed to ensure the instructions were transmi=t2d in their entirety and heard as issued. The crew can hardly be held accountable for not hearing the complete instructions. While there is no question the Foreman issued the 10 MPH speed limitation, there is considerable doubt as to whether the Conductor heard the speed limit. Regardless, the Foreman was at least equally responsible for not correcting the Conductor when he did not repeat the speed limitation, otherwise, what is the purpose of the repetition.


      When the Foreman's failure to correct the Conductor's repeat is coupled with the Foreman's affirmative response from the Conductor to "highball" Their gain, the Board believes the discipline issued the Claimant was unfair and unjustified.


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                          AWARD


The claim is sustained.

 Carol J.~Zanperini, Impartial Neutral

 Submitted this 10L° day of August, 2000.

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