SPECIAL BOARD OIL ADJUSTMENT NO. 928
AWARD NO. 227

 CASE NC?. 227

 PAR`. IE TO TIE DISPUTE.
Brotherhood of Locomotive Engineers

Nationnal Railroad Passenger Corporation

 STATEMENT OF CL~:

Specification: On April 26, 1997 at approximately 8:29 a.m. (MDT), on the l.Tf'Caliente Subdivision at Kyle; Nevada, while working as Engineer on Amtrak Train No. 35, it is alleged that your train. passed a block signal displaying a stop indication without stopping and proceeded through a dual control switch which was neat lined for your movements

 Chm
 Z_e: dour alleged failure to comply with the General Code of Operating Rules, 3rd Edition, Rule 5.16, which states in pair "Crew members in the engine control compartment must be alert to signals."

 Charge Twc~. Your alleged failure to comply with the General Code of Operating Rules, 3rd Edition, Rule 1. 1. 1, which states: "In case of doubt or uncertainty, take the safe course,"

 Charge Three Your alleged failure to comply with Union Pacific Railroad System Timetable #2, effective llt-2-95; Signal Rule 245Dy which states in part: "Proceed prepared to stop before any part of train or engine passes the next signal."

 Charn Four .. 'dour alleged failure. to comply with Union Pacific Railroad System Timetable #2, effective ltl-29-95, signal Rule 245Q, which states in part; "Stop before any part of train or engine passes a signal."
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OPIMON OF BQ A-R:
At the time this case arose Claimant was a Passenger

 assigned to Train 35, On

 April 26, 1997, Train 35 passed a stop signal shortly before entering a tunnel where a Union Pacific Train was approaching from the opposite end. An investigation was held on May 12, 1997. Can May 21, 1997, Claimant was notified of hip termination from Carrier's service. The discipline was appealed on Mar 27,1997) anti subsequently progressed in the usual manner including conference on the property. The matter remains in dispute.
 The Organization at the outset protests that claimant was denied his clue process rights when he was questioned by UPR.R officers without being informed of his right to union representation. The record indicates, however, that the Carrier patty to this Board (i.e., Amtrak) did, in fact inform Claimant of his right to representation. This Board has no jurisdiction to rule on the procedures of a carrier not party to this Board, Further, the Organization protests that harrier erroneously withheld claimant from service pending investigation. Under the circumstances, it was not unreasonablt for Carrier to remove Claimant for passing a block sigma displaying a stop indication. The potential for harm in such au alleged action is sufficient to warrant claimant's being withheld from service until the facts of the case are determined.
 "With respect to the merits of the case, the Carrier maintains that Claimant failed to maintain safe conduct of his engine, resulting in a near collision with the oncoming UP train. It asserts that the sun was not in Claimant's eyes and that his preoccupation with the sunscreen was a lapse in attention to duty. The Carrier argues that even if, arguendo, the sun visor was a

 2
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 problem, Claimant should have warned his assistant engineer to keep a lookout for signals while

 the former adjusted his sunscreen. Finally,. the Carrier insists that in record:, dismissal was warranted despite his leery seniority.

 The Organization contends that circumstances present in the locomotive at the time of the incident at issue mitigate Claimant's responsibility. It maintains that Claimant was making adjustments to a defective safety appliance (the sunscreen, and was not operating the locomotive at that time. Accordingly, the inadequacy of the equipment provided by Carrier precipitated the incident at issue: The Organization her notes that Assistant Engineer Riice did not see the single yellow signal, either: Moreover, the canyon walls along the curving stretch of track on which this incident occurred party obscured the red signal as welt until the engine was well upon itx
 In addition, the Organization mains that the penalty assessed is disparate and discriminatory. It points out that similarly situated UPRR employees have been assessed far less discipline (for example, a thirty-day suspension), for the same violation Carrier alleges was committed by Claimant The Organization notes that, while Claimant's record is not spotless; he has only two operating violations in over ten years at Amtrak. Finally, the Oration notes that shortly after the Kyle incident a joint committee of the Carriers, the FRA and the

 reviewed the signals at West Kyle. As a result of that review, an approach medium

 (double yellow) signal has been added at West Elgin when the switch at West Kyle is reversed.
 Claimant has admitted not seeing the yellow signal prior to passing the red signal. He admits he was distracted by trying to get the sunscreen to stay in place: He has also acknowledged that he was "sleep deprived" prior to taking his position on Train 35. Although he 3
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 was not in control of the train at the time of the incident at issue, innumerable awards on this and other boards have found that he nonetheless shares responsibility for the safe conduct of the engine. Moreover, the UPRR: supervisor testified at the hearing that he had duplicated Train 3S's run, anti did not find the sun to be "blinding" at the time of day when the incident giving rise to this grievance occurred. On the other hand, it is clear that the crew's alertness when it ultimately saw the red signal prevented a serious accident.
 Claimant's discipline record reflects he passed a red `flag' a little more than f months before the incident in question: Further; that resulted in a thirty-day suspension which means he had been at work less than five month when the instant violation occurred. He clearly should have beer more conscientious with respect to watching for signals instead of allowing himself to become preoccupied with the sunscreen and therefore cannot be excused for this lapse of attention. to duty. However, Claimant is an employee with an otherwise good record and more

 service with the Carrier. Moreover; it is apparent from the "post event"
reconfiguration of the signals in question, the Carriers involved recognized a problem with the
 original set up. For his October 19963 failure to stop at a signal,. Carrrier assessed a thirty day
 actual suspension. Under the circumsces, the Board finds that a 120-day actual suspension is
 sufficient discipline to impress upon Claimant the gravity of his aa ctions:
 Accordingly, his discipline of dismissal shall be reduced to 120 days. He shall be restored to service and receive back pay less any outside earnings for the remainder of his time out of spice.
 AWARD IBC?. 2,27
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 AWE
Claim sustained to the extent set forth in the above opinion.

 ?-
 Elizf~th C. Wesman, Chairman

 niou Member ;77- Company IVIe~4

 Dated at

 In executive session on this ease, the Organization raised a concern

 despite the

 Claimant's reduced. discipline, he was stilt not allowed to return to work ire a timer mamer. The Carrier did not return him to work his regular assignment until he was permitted by the Union

 Pacific Railroad Company to operate on its trackage.

 The Board has taken notice of this problem at length in our Awards 1 46 and 176. Vie. we are sympathetic with the dilemma create! by the disqualification by a rail carrier other than
 Amtrak the Board hass no jurisdiction to compel a. carrier not party #o this Agreement to return Claimants to wo& Nor has the Organization shown that the Claimant was qualified to work another route between the time his discipline expired and the tame he was reinstated to his

 position 6y the Board.
Accordingly, the claim remains sustained only to the extent set forth in the original

 Opinion.

 Elizabeth C. Wesman, Chairman-

 on Member y

 Gated a __

Z 4~,,A


Company Meml