Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
FIRST DIVISION
Award No. 24853
Docket No. 44465
97-1-95-1-U-1854
The First Division consisted of the regular members and in addition Referee
Katherine Gerstenberger when award was rendered.
(Brotherhood of Locomotive Engineers
PARTIES TO DISPUTE: (
(Union Pacific Railroad Company (former Missouri
( Pacific, Upper Lines)
STATEMENT OF CLAIM:
"This is the claim of Engineer S. C. Benner for all notation to be
cleared from his record that has occurred as a result of the Level 2
discipline assessment, resulting from an investigation held August 12,
1994."
FINDINGS:
The First Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the employee or employees involved in this dispute
are respectivelycarrier and employee within the meaning of the Railway Labor Act, as
approved June 21, 1934.
This Division ofthe Adjustment Board has jurisdiction over the dispute involved
herein.
Parties to said dispute were given due notice of hearing thereon.
Claimant was assessed a Level 2 discipline following an Investigation on the
charge that he violated Rule 6.31 of the General Code of Operating Rules by operating
his train in excess of the maximum authorized speed. On July 21, 1994, Claimant was
working as Engineer on train NPFW-20. He was operating in through freight service
on the Coffeeville, Kansas Subdivision of the Carrier. During Claimant's trip, he
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Award No. 24853
Docket No. 44465
97-1-95-1-U-1854
experienced a run-in of slack sufficient to eject and derail a car in his train. Subsequent
to the derailment, the speed tapes were pulled from the locomotives and forwarded to
P. T. Jolly, Manager of Operating Practices, for examination.
Upon examining the tapes, Mr. Jolly determined that the maximum allowable
speed had been exceeded by the train on two occasions. On the first occasion, the train
exceeded the maximum allowable speed of 50 miles per hour throughout a one-mile
distance. The recorded speed of the train was 55 miles per hour or greater, with a
maximum recorded speed of 58 miles per hour. On the second occasion, the train
exceeded the maximum allowable speed for a distance of two miles, with a top recorded
speed of 56 miles per hour.
Mr. Jolly testified at the Investigation that he discussed his findings with
Claimant, and that Claimant indicated that the speed recorder on the engine was in
working condition. Claimant stated that he was only aware of the second instance when
the train had traveled in excess of the maximum allowable speed. He told Mr. Jolly that
on that occasion, the conductor informed him that the train was exceeding the speed
limit, and he immediately reduced speed.
Claimant testified at the Investigation that the conductor had informed him on
one occasion that he was exceeding the maximum authorized speed for his train, and that
he then slowed to the maximum speed. When asked if he had told Mr. Jolly after the
derailment that he had exceeded the maximum authorized speed limit on at least one
occasion, Claimant responded, "I think I might've mentioned something, but I can't
recall."
The Organization advances several procedural and evidentiary arguments in its
Submission. The Organization contends that the Carrier's decision to discipline
Claimant was based on unauthenticated evidence and hearsay testimony regarding the
analysis of the speed tapes. In this regard, the Organization asserts that Mr. Jolly did
not personally download the tapes or conduct the measurement of the wheel diameter
to calibrate the pulse recorder equipment. The Organization submits that it had no
opportunity to cross-examine the individual who performed these functions. Further,
the Organization argues that the record fails to establish the chain of custody of the
speed tapes, and that Claimant was prejudiced by the fact that the Carrier submitted
into evidence only one of the two speed tapes in its possession.
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Award No. 24853
Docket No. 44465
97-1-95-1-U-1854
The record reflects that the procedural and evidentiary objections raised by the
Organization in its Submission were not raised at the investigative hearing. Inasmuch
as this Board has held that objections not raised at the investigation are deemed waived,
the Organization's arguments are rejected. See First Division Award 5251, Second
Division Award 7452, and Third Division Awards 22325 and 28726.
As to the merits of the claim, the Organization maintains that Claimant was
subjected to discipline even though his performance was within "the acceptable latitude
of variance established by the Carrier for maintaining train speed." The Organization
argues that Claimant's handling of the train was justified given the undulating terrain
and the fact that the poor makeup of the train caused inordinate slack action. The
Organization refers to a letter written by J. E. Sanford, Director of Operating Practices,
dated April 13, 1993, in which Mr. Sanford addresses the issue of complying with the
maximum authorized speed when a train is operating in undulating territory.
We find no merit to the Organization's contentions. Claimant admitted that he
exceeded the maximum authorized speed, that he was so notified by the conductor, and
that he then reduced speed. Thus, although the terrain and make-up of the train
presented difficult circumstances, Claimant admitted that he was able to control the
speed of the train. Moreover, no evidence was offered at the Investigation regarding any
acceptable latitude of variance established by the Carrier for maintaining train speed,
and the record holds no basis to support this contention. In contrast, the letter relied
upon by the Organization expressly states that the Carrier has no policy to permit
exceeding the maximum speed by a specified amount in undulating terrain.
Finally, we reject the Organization's assertion that Claimant was subjected to
disparate treatment inasmuch as the conductor of train NPFW-20 was neither charged
nor disciplined despite the fact that the engineer and conductor are jointly responsible
for the speed of the train. The conductor was the individual who informed Claimant that
he was exceeding the maximum authorized speed, and therefore cannot be held
responsible for the violation in issue.
Upon full consideration of the entire record and the arguments raised by the
parties, the Board finds that there is substantial evidence to support the Carrier's
conclusion that Claimant violated Rule 6.31 of the General Code of Operating Rules by
operating his train in excess of the maximum authorized speed, as charged. Claimant
thus admitted exceeding the maximum authorized speed. Moreover, he had control over
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Award No. 24853
Docket No. 44465
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the speed of the train as evidenced by the fact that he slowed the train upon being
notified that he was exceeding the maximum authorized speed.
Finally, we find that the Level 2 discipline assessed against Claimant was not
arbitrary, capricious or excessive under the facts of this case.
AWARD
. Claim denied.
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an award favorable to the Claimant(s) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of First Division
Dated at Chicago, Illinois, this 16th day of October 1997.