NATIONAL MEDIATION BOARD
 SPECIAL BOARD OF ADJUSTMENT NO. 990

 THE LONG ISLAND RAILROAD COMPANY

 "Carrier"
- and -

 BROTHERHOOD OF LOCOMOTIVE
 ENGINEERS

 "Organization

 APPEARANCES

 For the Carrier
 S.M. Drayzen, Director of Labor Relations,
 Administration
 J. J. Tinghino, Labor Relations Representative
 M. Neresian, Labor Relations Representative

 For the Organization
 R. M. Evers, BLE General Chairman
 R. L. Willis, BLE Committeeman
 G. H. Resch, BLE Secretary-Treasurer

 BEFORE: HOWARD C. EDELMAN, NEUTRAL MEMBER
 S.M. DRAYZEN, CARRIER MEMBER
 R.M. EVERS, ORGANIZATION MEMBER
Award No. 32
 Re: C.W. Kavanaugh
 SeA~o-qG~

















- position at approximately 11:10 a.m.
          on January 1, 1998, while working as

          Engineer of Train 8017.

          Carrier rejected the Organization's claim. Upon the

          parties' failure to resolve the dispute on the property,

          the matter was appealed to this Board for adjudication.

          A hearing was held before us on July 14, 2000. At its

          conclusion, the record was closed. This Opinion and

          Award follows.


                      POSITIONS OF THE PARTIES

          Carrier asserts that Claimant was properly held out of service for thirty days. It insists that train 80151


          1Carrier concedes a typographical error in that its charge refers to Train No. 8017, not 8015. 2

563A No.99o , pwo No. 32.

        had the order to proceed up to 40 Signal at West Side Yard at approximately 11:10 a.m. on January 1, 1998. Yet, it notes, as several witnesses testified at the trial, 8015 Westbound passed the 40 Signal in the stop position by approximately one and one-half car lengths. There is no doubt that the eastbound train had the superior route, Carrier submits. Hence, it alleges, Claimant's action could have resulted in disastrous consequences had the eastbound train moved when claimant passed the 40 signal.

        Furthermore, Carrier argues that a 24 hour watch was conducted and it showed that the 40 Signal was working properly. Hence, it insists, the organization's contention that the signal may have malfunctioned is without merit.

      As to procedural issues, Carrier submits that to the extent any exist, they are minor in nature and do not warrant upholding the organization's claim. For example, it notes that all involved, including Claimant, knew he was operating Train 8015, not Train 8017, as alleged in the charges. Thus, Carrier contends, these and any other procedural infirmities are minor in nature and do not justify sustaining the claim. In sum, Carrier maintains that it has conclusively proven the allegations raised against Claimant. Consequently, it asks that the organization's claim be denied.


                            3

J~e ANv.99 0 A w D ,u n . 3'L.

      The Organization maintains that its claim should be sustained for both procedural and substantive reasons. As to procedure, the Organization contends that the Hearing Officer made numerous errors in the trial held on the property. Among these, the organization submits, was his failure to summon the Conductor to appear at the hearing though he has as much responsibility for running the train as the Engineer. Also, the Organization asserts, the Hearing officer prevented numerous questions from being answered at the hearing. Therefore, it urges, its claim should be sustained on procedural grounds alone.

      As to the merits, the organization maintains that Carrier has failed to sustain its burden of proof that Engineer C.W. Kavanaugh passed 40 Signal in West Side Yard on the date and time in question. It alleges that often signals malfunction and that carrier has not demonstrated that 40 Signal at the West Side Yard was operating properly at the time of the incident in dispute. In fact, it suggests, a 24 hour watch on 40 Signal was not begun until more than four hours after Claimant allegedly passed it in the stop position. Accordingly, and for these reasons, the Organization asks that its claim be sustained as presented.


                            4

S6R WO·CAqt0
 4~0 n~o . 3 2-

                    DISCUSSION AND FINDINGS

      After carefully reviewing the record, this Board

      finds that the claim must be sustained on procedural

      grounds alone. Central to our determination is the

      Hearing Officer's failure to call Conductor Guarino to

      testify at the trial board. Though Claimant was

      certainly responsible for the operation of the train,

      Conductor Guarino also bore substantial responsibility as

      well, even if to a lesser extent than was Claimant. As

      noted in Chicago and Northwestern Transportation Companv

      and Brotherhood of Locomotive Engineers, Award No. 24296,

      NRB, First Division, April 15, 1994, "The notion of a

      fair hearing requires that the Carrier summon to the

      hearing all witnesses which reason and logic dictate may

      have some relevant and material testimony or evidence to

      present." Clearly, a co-crew member, such as a

      Conductor, may have relevant testimony concerning an

      alleged failure of the train to stop at a signal, as

      ordered. As such, this procedural error is not a minor

      one which is later cured. Instead, it renders the trial

      fatally defective, we conclude, for it precludes a full

      and fair airing of all relevant facts at the trial board.

      This ruling is limited to the facts of this case.

      Also, we note that Claimant has appealed his loss of

      certification to the Locomotive Engineers Review Board

      and our determination is not intended to have any


                            5

SF~t ND.~
 fiw o ~o . 32
        bearing, direct or indirect, on that proceeding. Nonetheless, and for the reasons set forth above, the claim must be sustained. It is so ordered.


6
    Spa- ND.9qo ~.,.,~ No . 3 2.


                              FINDINGS

          The Special Board of Adjustment No. 990, upon the whole record and all of the evidence, finds and holds: That the Carrier and Employee Organization involved in this dispute are respectively Carrier and Employee organization within the meaning of the Railway Labor Act, as approved June 21, 1934; that the Special Board of Adjustment No. 990 has jurisdiction of the dispute involved herein; and, that the claim in Award No. 32 will be sustained.


C.
 _ Howard C. Edd'lman, Date
 Neutral Member

 7
 SBA No _ ,90
 Nw o to-o . 3 Z.

                  Concur


                  Dissent


JV- I ~-20oo
 Date R. M. Evers,

                          Organization Member


8
 s as ND . 9c0
 P..~ O No · 3 2

                  Concur


                Dissent


          zx~ze:;,~

Date S.M_ Dray en,
 Carrier Member

 9