NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. 6198
JOHN C. FLETCHER, CHAIRMAN & NEUTRAL NIENIBER
T. tVI. STONE, CARRIER MEMBER
Dog TNI HAHS, ORGANIZATION MEMBER
The Chairman and Neutral Member, after review of the entire record, has determined that the issue before this Board is:
Public Law Board No. 6198, upon the whole record and all of the evidence, finds and holds that the Employee(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 dispute(s) herein.
The dispute at issue herein concems Claimant McDonough's alleged failure to secure proper authority in accordance with applicable Operating Rules prior to operating his southbound loaded coal train, 'CATGP, past the absolute red signal at Jonesboro Junction on Carrier's Jonesboro Subdivision on July 8, 1999. As background infomlation germane to the incident at bar, the Board notes that the absolute signal in question is located at Mile Post 119.7 on the Jonesboro Subdivision, and is designated "Jonesboro Junction" in the Jonesboro Subdivision timetable. According to our understanding, that
selfsame signal represents the junction point between Carrier's Jonesboro and Wynne Subdivisions, and carries the designation "CPY 235" in the Wynne Subdivision timetable. To complicate matters, these two subdivisions are controlled by two different train dispatchers; Dispatcher 16 controlling the Jonesboro Subdivision on radio frequency 1414. and Dispatcher 34 controlling the Wynne Subdivision on radio frequency 24-24. As a matter of operating practice, the Jonesboro Junction signal, (CPY 235 per our previous note), is controlled exclusively by the Jonesboro Sub dispatcher on frequency 14-14, and the first signal encountered by southbound train crews on the Wynne Sub, designated "CPY 236", is controlled exclusively by the Wynne Sub dispatcher on frequency 24-24. As a consequence of this practice, then, southbound crews proceeding from the Jonesboro Subdivision onto the Wynne Subdivision by the Jonesboro Junction (aka. CPY 235) absolute signal, are required to change radio frequencies _from 14-14 to 24-24 in order to communicate with the Wyrute Sub dispatcher in authority from that point southward.
With this background, the Board examines the complex chain of events of July 3, 1999 leading to Claimant's discipline. According to all the evidence, Claimant, an engineer with an exemplary 30-plus year set-, ice record, and his conductor (himself in possession of 35 incident-free years of service), were operating 2CATGP southbound on the Jonesboro Sub (with intent to diverge onto the Wynne Sub at Jonesboro Junction), when they encountered the approach signal to Jonesboro Junction displaying the yellow aspect. Unknown to the crew, three Carrier officers. conducting operating rule efficiency tests in the area, had shunted the track circuit south of CPY 236, causing both CPY 236 and Jonesboro Junction (CPY 235 per the Wynne Sub timetable) absolute signals to display STOP indications for southbound train movements. As such. the approach to CPY 235 was properly yellow. Claimant proceeded by the yellow signal at the speed prescribed by Carrier's General Code of Operating Rules and stopped before any part of his train passed the red absolute Jonesboro Junction signal.
Prior to stopping at the red Jonesboro Junction signal, the crew of 2CATGP prematurely switched radio frequencies from the Jonesboro Sub frequency of 14-14 (over which they had properly been conununicating up to that point), to the Wynne Sub frequency of 24-24, and attempted, in error, to obtain permission from the Wynne Sub dispatcher to pass-by after the stop. (It has been noted above that the 'y'ynne Sub dispatcher possessed no authority to grant the a request.) As if that were not enough, the Wynne Sub dispatcher did respond to that call, and erroneously identified himselJ'as the Jonesboro Dispatcher. The record contains the following transcription of that crucial exchange:
Claimant and his conductor, believing, albeit in error, that they had received permission to pass the red signal at Jonesboro Junction (CPY 235) , proceeded as directed by the dispatcher, after completing their stop. Carrier officers performing the safety efficiency test, were listening to radio transmissions on both chartnels 14-14 and 24-24, and were aware at the time that Claimant's crew had asked the wrong dispatcher for permission to pass the red absolute signal at Jonesboro Junction and that the dispatcher authorized the crew to proceed. After verifying the fact that authority to proceed had never, in fact, been correctly granted by the real Jonesboro Sub dispatcher on frequency 14-14, they stopped the train and remosed both crew members from service pending investigation.
Subsequent to the events of July 8, 1999, Claimant was directed to attend a formal investigation, prior to which the Organization's Vice General Chairman, Mo. 0. Coats, made the following pertinent written request by letter dated July 1 ~. 1999:
The investigation was, in fact, conducted on Juh 23, 1999, during which two out of three of Vice Chairman Coats' above requests were summarily- denied. The event recorder tapes were not downloaded for review, nor was either dispatcher involved in the incident present for questioning and cross-examination. (It is also noted for the record that dispatcher voice tape transcriptions were not made available to the Organization as requested, but pertinent portions of the tapes themselves were played during the hearing and subsequently entered into the transcript of investigation.) The Board further notes that the July 23, 1999 hearing, in addition to serving its fact-finding purpose under the controlling Agreement, also satisfied the procedural requirements for investigation as specified by the Federal Railroad Administration in 49 CFR Part 2-10, Qualification and Certification of Locomotive Engineers, and the resultant revocation of Claimant's Engineer Certification was duly appealed before that authority. Subsequent to the hearing, Claimant was assessed Level 4 discipline of thirty (30) days actual suspension, the propriety of which is now before us for final disposition.
Upon review of the entire record, this Board is persuaded by the Organization's threshold argument that Claimant was deprived of due process when Carrier refused to sununon the Jonesboro and/or the Wynne Subdivision dispatcher to the hearing in accordance with the Organization's request under controlling Article 44. The Board is concerned by the substantive voids in the record as an unquestionable result of their absence; voids which may have totally exonerated Claimant at best or mitigated his error at the very least.
A number of obvious questions come to mind when considering the events of July S, 1999, none of which were adequately addressed by the taped dispatcher/train exchanges made part of the hearing record. For example, why on earth did the Wynne Dispatcher misrepresent himself to the crew as the Jonesboro Dispatcher, frequency 2424 notwithstanding? What did he mean when he addressed the "train coming at Jonesboro Junction"... (transcript of investigation at pages 42 and 43). Did he really mean the train passing Jonesboro Junction, since he had no practical authority to control that signal? What were normal operating practices between the Jonesboro and Wynne Sub dispatchers in directing movements of southbound trains approaching the Jonesboro Junction signal with intent to diverge onto the Wynne Subdivision? Was there conversation between the Jonesboro dispatcher and the Wynne dispatcher at the time of this incident; indeed were they able to communicate with the instant train crew on each other's designated radio frequency'? What, if anything, were they told by Carrier officials with respect to the efficiency test being conducted on Claimant's train? None of these critical questions were satisfactorily resolved during the investigation process because the dispatchers invoked were not made available for questioningg.
And, apparently, according to the record, the Locomotive Engineer Review Board of the FRA agrees. It independently concluded, as have we after careful consideration, that the conduct of the July 23, 1999 hearing was so seriously flawed by Carrier's refusal to call two crucial witnesses, that the final outcome was rendered, in effect, questionable in its most favorable light. The LERB found as follows with respect to the revocation of Claimant's Engineer Certification subsequent to the July 8 incident:
While this Board's function under the Railway Labor Act and that of the LERB remain separate and distinct in terms of stated purpose, we are, in instances of bona fide prejudice, held to the same standard. We. too, find that Claimant's right to a thorough probing into gall facts and circumstances playing into the events of July 8, 1999 was substantially damaged by Carrier's arbitrary disregard of Vice Chairman Coats' repeated requests to question and/or cross-examine the dispatchers involved. This Board stands firm in its judgment that a hearing officer is not privileged to avoid or manipulate evidence (in this case by disallowing pertinent testimony). and in so doing, steer an investigation toward an outcome favoring charges that have been leveled against an employee.
Therefore, the instant claim will be sustained in its entirety, without prejudice to its merit, on the basis that Claimant was denied a fair and impartial investigation as