Organization Ftc No- NFtt

                                NMS code 105

                                Claimant Conductor L W. Stauffer


    PARTIES TO DISPUTE:


    UNITED TRANSPORTATION UNION


            AND


    UNION PACIFIC RAILROAD COMPANY,


Statement of Claim- -

        Claim it made in behalf of UPRR Conductor Lorry W. Stautfer for removal of Level 4 Upgrade Discipline, and payment for any time last as a result of formal investigation which was held in Soft Lake City an may 25, 1996.


Oindings

 Upon the whole record and all the evidence, the Boards Winds that the Parties herein are Carrier creel Employees within the meaning of the boy Labor Act, as amended, and that the Board has jurisdiction of the Parties and aver the sub[ed matter and the Parties were given due notice of the hearing held.

 On June 6, 1969, the Claimant became an employer of the Western Pacific Railroad. Ha was promoted to Conductor on March 13, 1972, tin May 15, 1996, the C(o'emart, slang with Engineer Donna M. Domingo were assigned to Train STM£T-l·t which was scheduled eastward from Elko, *voda to Salt Lake City, Utah. The Engineer had been initially employed as a Brakeman an August 15, 199.4 and was promoted to Engineer on January l, 1993_ Al the tine of the incident, the Engineer was taking her first trip since returning from o 5 month maternity leave of at.ca_ She was generally artFamitiar with the route. Lt was a dark and rainy evening.

    On this night, an efficiency team was conducting tests on the route traveled by Train STMET-14. At MP 783.6 they placed the signal in a slop position- At t1rtP 7t3d.10 to the right of the track a red light eras displayed. This fight was placed at o curve an or at the end of a 1 °a descending grade. The area was a canyon and tire tracks through the


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area consisted of three consecutive turves, in addition, about 1h rule east of the area
 was a 'flange oils: "', a device to lubricate tacomotive wheels and tracks to reduces friction.

 The crew stopped the :rein short of MP 783.6 and received authority from the pispotcher !o proceed past the red signal. Concurrently, it began to rain bared. The crew expected and was looking tar the next signal which they teed to be red. As the clew came down ;the descending grade and rounded a right trend cure, they saw the headlights of the efficiency team's pickup truck, shortly ther$ofrer the Claimant saw the red light and yelled to the Engineer, "there ii is, there it is°. The Engineer placed the train into emergency, but, failed b slop short of the red light, passing it by about 7.2'. The cad light treed was approximately Sm felt a»d the tens about 2 'I inches by 2 3I4 inches in size.

 The efficiency team removed the crew and.they were subjected to a drug street, test which ores negation.

 By letter doted May 16, 1994, the Claimant was advised +o appear at a formal investigation at the Office of She Manager of Train Operations, Salt Cake City, Utah, ar t_00 p.m- The purpose of the hearing was to determine leis responsibility, if any, in train $Tlv4FT-1 4 fairing to stop short of the red (fight on May 15, 1996 of opproximotefy 8: 41 p.m. The rude at issue which was Cited in the Carfier's submission reads as follows-,

      6.2 7 Movernent at Restricted Speed


          When o train or engine is required to move at restricted speed, movement must be made at a speed that allows stopping within half the range of vision short of-


          Train

          Engine

          Railroad car

          Men or equipment touring the track

          Stop signal

          Or

          Derail or switch limed improperly


          The crew must keep a lookout for broken rail and not exceed 20 MPH.


          Comply with these requirements until the teacling wheels reach a point where movement at restricted speed a nn Conger required.


After reviewing the transcript of the hearing, the Carrier determined the Claimant woe cWpabte in the incident- By letter dated May 37, 1996, the Claimant was advised of

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the Corriet's decision and assessed a Lfwei 4 Discipline under the Upgrade Polity which was o 30-day suspension without pay.

                      CARRIEWS POSITION


The Carrier argues that the Claimant was afforded a fair end impartial forma! investigation, They say he was veil aware of the charges against him, especially since he was removed from service and required to submit to a drug seen test. The Carrier asserts the Claimant was properly notified of the time and place of she hearing-

 As to the merits, the Carrier believes the widen<e presented established that the train failed to sop shat cf the rd light. The Carrier argues shot the Claimant knew he had an inexperienced engineer and should hove taken the tare necessary to assure that she was operating #·.e train at o speed which would have allowed Them to slap short of the red light. They insist tEaat -re was familiar with the territory and experienced enough to realize the train was going too fast under the circumstances, They contend he had an obligation to be sure the speed they were traveling would allow them to stow. short, particularly under she conditions which existed at the tame. They say the fact the train had to go into emergency in an attempt to step shoe of the red light, indicates the Claimant's failure to maintain the train at the proper restricted speed.

                    ORGANIZATION'S POSITION


The Organization insists the Carrierviclated the procedurai requirements of properly notifying the Claimant of the specific charges. They submit, that even though these errors may net be attn'butable to the tabor Relations Department and fall on the shoulders of the operating department, they are carious enough to warrant setting aside ate discipline an this basis plane. The Organization holds that the operating ,department insists an taking short outs which are o direct Violation of the Collective Bargaining Agreement.

 As to the merits, the Organization contends the efficiency fearfs set up the test in a manner #o assure failure. They argue that the terrain, the weather conditions and the leek of experience of the Engineer almost assured that the crew could not pass the test. They soy the efficiency team failed to comply with the guidelines for efficiency testing, especially that section which reads:

    . . .Test muse be conducted in a fair and impartial manner, keeping in mind that one of the greater benefits is the educational vafue. Rules must be enforced in a firm, fair and consistent manner, without regard to personalities and emotionsf it becomes necessary to correct or counsel an employee because it 3s apparent that a rule has been violated, instruction and counseling should be given in a tent, courteous manner as soon at practicable white the circumstances are still fresh in averyones minds. . _ .

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The Organization believes that givers the cirttmstances the Cioirrtont could not have done anything d:f_erentfy winch would have assured that train would stop Short of the red light. They also believe that the e£fciancy team krnew the Engineer had recently returned from maternity leave and was unfamiliar with the area. The Organization submits that the team intentionally set up a test that wOS deceptive and bogus.
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The Board has reviewed the facts in oues,~ion thoroughly. There a no doubt that efficiency tests ore a necessary part of the operations of any railroad. It is important fn pnsvide confinuous framing so that engineers and conductors do not become complacent. However, such tests should 6e conducted in a manner to assure that the torts ore sat up io rapeieatr. = much as part, real situations as they are li'rc6'ti/ f$ occur.

 It seems to this Board that the test, as set up, was stretching the limits of efficietscp testing. To soy the test was rigid is an ursdsrstotsmsrt~ Farticutatly when yon consider the placement of the light, the size of the light, the weorhar conditions, the fact that the pickup trvtk was facing the oncoming train with its lights art (on the opposite side of the frock from the light placement) and the fad there was from a1) indrcatiens no sand in the (rain (at least there was unrefutad testariony that there was no sandi and there were a series of curves on a 19S grade.

 True the engineer failed to stop short of the rod light, but, she did not pass it by
 much considerirrQthe challer&g,cartditionx The n is whether the Claimant half
 reason to beirova they were not proceeding sofelyand within o speed which would allow
 them to stogy shaft. 'the Board believes it wee reasonable for him to believe the engineer
 did hove cortrol of the (rain and could have stopped short of ti,e obstacle. FvAhermore,
 the purpose of efficiency testing is presumably to test the efl'sciency of the crew. When a
 fast is set up that only exposes one crew member to the test, it seems to this Board to
 defeat part of the reason fns oifcisncy testing. (n this case the Pngiineer testified that she
 nearer sow the light and none of the Carrier witrtesfi$ed that she should hove seen
 the light. They simply had not checked the locomotive to ascertain what she could see-

 Its true flee Claimant was more experienced, busy the evidence does not show that he in any way failed to provide guidance to the Engineer. She found no fault with his assistance and he found no fault with her operation of the ixomotive. In addition, there was no testimony to refute the claims mode by both the Engineer arid the Claimant that the train was in danger of stolirig as it descending the grade and rounded the curves,

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                            Awp


~c claim is sus'.oined_

                                .- ___


                  Carol J. mperini, Importicl Neutral


                                    cd v


    iri E_ Tosrey, Carrier Member hlamnar: J. Lucas, Employee Member


Submitted this 3Q' day of June, 1999.

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