NARRator

OFFICIAL NEWSLETTER
OF THE NATIONAL ASSOCIATION OF RAILROAD REFEREES
MAY 2003

The Dilemma of Locomotive Engineer CertificationVis-à-vis Contractual Due Process in Discipline Cases
by
John LaRocco

The advent of the federal government’s locomotive engineer certification program created a dilemma, if not a conflict, between the licensing system and the contractual due process procedures governing engineers.

I am preparing an article that will delve into the dilemma in greater detail. However, I would like to take this opportunity to set forth the problem for discussions, observations, and possible solutions.

As a consequence of the January 4, 1987 collision between an Amtrak passenger train and a Conrail local freight train in Maryland, Congress determined the existence of a safety need for regulating the qualifications of locomotive engineers. In 1988, Congress enacted the Railroad Safety Improvement Act (RSIA) which delegated to the Federal Railroad Administration (FRA) the task of establishing and enforcing a certification program for locomotive engineers. Previously, the FRA had oversight authority concerning the qualifications of locomotive engineers by enforcing safety violations against the employing railroad. The certification program provided means of individual governmental regulation, that is, the direct licensing of locomotive engineers.

The FRA’s Locomotive Engineer Review Board (LERB) conducts de novo hearings to determine whether an engineer’s certification should be suspended or revoked as the result of a safety violation. Generally, the LERB has declined to interpret or apply terms of a collective bargaining agreement even where a contract provision could arguably be relevant to a particular case.

Under certain circumstances, the LERB administrative proceedings cause a conflict with contractual due process safeguards set forth in the disciplinary rules of engineer labor agreements. The dilemma can best be understood within the context of an example.

Suppose that an engineer runs three engine lengths beyond a red signal. The controversy concerns whether a mechanical defect in the braking system prevented the engineer from stopping the train prior to the signal or whether the engineer did not exercise proper control of the train by reducing its speed in time to stop before the red aspect. The carrier convenes an investigation to determine if the engineer was guilty of a serious safety infraction. Let us assume that the carrier violated the claims procedure set forth in the disciplinary rule by failing to convene the investigation within the time period specified in the rule and, when it finally held the investigation, the carrier arbitrarily refused to permit the Organization to call as witnesses the machinists who examined the brakes on the locomotive consist following the incident. The carrier dismisses the engineer following the investigation.

Sometime thereafter the LERB conducts an administrative hearing to determine if the engineer’s certification should be suspended or revoked. Let us assume that the LERB decides that the brakes were properly functioning and the engineer was solely responsible for the violation. The LERB does not address the issues arising under the disciplinary rule. The LERB suspends the engineer’s certification for one year.

The carrier’s discharge decision is appealed to the National Railroad Adjustment Board (NRAB). The NRAB does not reach a decision on the merits because it determines that the carrier’s violations of the rules pertaining to a fair and timely investigation justifies setting aside the discipline. The dilemma is in the remedy. Is the engineer entitled to full back pay even though the LERB decided that the engineer could not have performed service as a engineer for 12 months of the period that the engineer was out of service? Awarding back pay for a procedural violation is designed to encourage the carrier to comply with the contractual due process safeguards in the agreement as opposed to compensating an engineer for being wrongfully disciplined. If back pay cannot be awarded, how does the NRAB enforce the claims procedure in the collective bargaining agreement?

The LERB decides the certification issue without regard to whether the engineer received contractual due process under the agreement. The NRAB must address the procedural issue before considering the merits. This dilemma becomes particularly acute if say, the LERB decides to permanently revoke the engineer’s certification. Then, the question becomes whether the NRAB can reinstate the engineer to a position in the engineer’s craft due to the carrier’s multiple violations of the rules covering disciplinary due process?

Certainly, the NRAB should be aware of railroad safety so that it incites both the carrier and engineers to strictly follow all safety rules. However, the NRAB is also charged with interpreting and applying the collective bargaining agreement and providing the appropriate remedy when it determines that a contract violation occurred.

The dilemma created by the concurrent jurisdiction of the LERB and Section 3 tribunals may be irreconcilable.

As a preview to even another problem, suppose the carrier complied with all contractual due process rules but, at the on property investigation, the engineer and the union submit overwhelming evidence of a mechanical (braking) malfunction. As a result, the NRAB sustains the discharge appeal on its merits. Now, the NRAB’s holding directly conflicts with the LERB’s decision on a salient fact: was the engineer responsible for the safety violation or did the brakes malfunction?

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