U.S. DEPARTMENT OF TRANSPORTATION FEDERAL RAILROAD ADMINISTRATION washington, D. c Locomotive Engineer Review Board

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1 . ~ U.S. DEPARTMENT OF TRANSPORTATION FEDERAL RAILROAD ADMINISTRATION washington, D. c Locomotive Engineer Review Board Review and Determinations Concerning Sao Line Railroad's Decision to Revoke Mr. Mallory s. Robbins's Locomotive Engineer Certification FRA Docket Number EQAL Decision The Locomotive Engineer Review Board (Board) of the Federal Railroad Administration (FRA) has reviewed the decision of Soc Line Railroad Company 1 (Sao Line) to revoke Mr. Mallory s. Robbins's locomotive engineer certification (certification) in accordance with the provisions of Title 49 Part 240 of the Code of Federal Regulations (49 C.F.R. 240). The Board hereby disapproves Sao Line's decision to revoke Mr. Robbins's certification for the reasons set forth below. Background On behalf of Mr. Mallory s. Robbins (petitioner or engineer), the Brotherhood of Locomotive Engineers (BLE) filed a petition with FRA, requesting that FRA review Sao Line's decision to revoke the engineer's certification. The petition asserts that the revocation was improper because: {1) No decertifiable offense occurred under 49 C.F.R {e) based on the operative facts of the incident as stipulated by the parties. Pursuant to 49 C.F.R (b) and (c), a copy of the petition was sent to Sao Line, and the railroad was afforded an opportunity to comment. Sao Line timely responded on May 15, 1995, and was required by 49 C.F.R (d) (2) to give petitioner a copy of the material submitted to FRA. In its response, Soo Line contends that the engineer violated the railroad's operating rules involving a failure to make a complete..1- J::...,_... 'h -F,, n. +: S\...Op t...j.le '-raln us.1..0re pass~ng a SJ..gna.-.l.n-~ca-l.On; l.n violation of 49 c.f.r (e) (1). Sao Line asserts that the Board must defer to the railroad's finding that the incident--pe~mitting a train to run through a misaligned 1 soo Line Railroad Company, an indirectly wholly-owned subsidiary of Canadian Pacific Limited, doe~ business as the CP Rail System.

2 2 switch--is a decertifiable event based on FRA's interpretation t.hat it is within each railroad's purview to decide what constitutes a signal indication. 2 Board's Determination Based on its review of the record, the Board has determined.that: (1) Beginning at 3:00 p.m. on December 6, 1994, petitioner was assigned to work a "change off" assignment with a conductor. The assignment involved moving locomotives and trains among several locations within the Minneapolis-st. Paul terminal limits. (2) At 10:50 p.m., petitioner departed the Shoreham Roundhouse with three locomotives in a train consist en route to St. Paul. The lead engine was HATX 518. (3) After petitioner stopped at a red signal, a Burlington Northern Railroad Company (BN) dispatcher authorized him to proceed passed the stop signal. The engineer then continued beyond the signal at restricted speed, as required by Soo Line's operating rules, 3 and entered BN's centralized traffic control territory. (4) As petitioner was traversing BN main track number 2, he encountered an electric lock switch. The train conductor informed him that the switch was improperly lined for movement. Petitioner applied the brakes to stop the train before entering the switch, but was unsuccessful. The lead unit, HATX 518, entered the switch before the train stopped. An investigation revealed no genuine switch point damage. 4 (5) on December 7, 1994, Soo Line suspended the engineer's certification for failure to control the train in accordance with a signal indication requiring a complete stop before passing it. (6) In accordance with 49 C.F.R (c) {1), the railroad postponed the railroad investigative hearing from December 13, 1994, to December 16, (7) on December 16, 1994, the railroad conducted a joint disciplinary and decertification hearing to decide 2 ~ 56 Fed. Reg , {1993). 3 Specifically, tne railroad operating rules are 9.11 and Munt, Tr. 9.

3 3 petitioner's responsibility for the incident. A local BLE chairman represented the engineer. Petitioner did not object to the procedures employed at the hearing, and the hearing apparently complied with 49 C.F.R (8) On December 24, 1994, Sao Line informed petitioner that it revoked his certification for 30 days in accordance with 49 C.F.R (g) (3) (i) for violating 49 C.F.R (e) (1). Analysis of the Petition standard of Review The Board reviews engineer decertification petitions on three grounds. First, whether there is substantial evidence to support the factual findings made at the investigative hearing. 5 In other words, the Board decides whether there is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. " 6 Second, the Board conducts de novo review of a railroad's legal conclusions. 7 The Board must make "a fresh, independent [evaluation] of 'the matter' at stake." 8 Finally, the Board determines whether any ~rocedural irregularities caused the petitioner "substantial harm." Substantial harm exists if prejudicial error is found that could have affected the outcome of a case, ~., error that could have caused the Board to reach a conclusipn different f~om the one reached. 10 Findings and Conclusions The issue before the Board is whether, as a matter of law, failure to stop short of a misaligned switch while operating at restricted speed is operational misconduct and, therefore, a 1987) Fed. Reg (1993). 6 Richardson y. Perales, 402 u.s. 389, 390 (1971) Fed. Reg (1993). 8 Doe y. United States, 821 F.2d 694, (D.C. cir Fed. Reg (1993). 10 ~ cornelius y. Nutt, 472 u.s. 648, (1985); Baker v. HHS, 912 F.2d 1448, (Fed. Cir. 1990).

4 4 decertifiable event under 49 C.F.R (e) (1). concludes that it does not. 11 The Board Put simply, Sao Line maintains that its operating rules required petitioner to (i) operate the train at restricted speed after passing the red signal aspect, 12 (ii) stop the train short of a switch lined improperly, 1 and (iii) not to run the train through a switch with few exceptions. 14 The engineer disobeyed these rules as stipulated. Sao Line construes a misaligned switch in restricted speed territory as a signal indication. Consequently, the railroad posits that it properly revoked Mr. Robbins's certificate. The Board disagrees with this analysis. Although the Board "takes an expansive view" of "what devices or methods [are] deemed signal indications, " 15 there must be a rational basis for a railroad to assert operating rules and practices as signal indications. The Board believes that there is no reasonable connection between misaligned switches and signal in~ications based on the longstanding construction in the railroad industry. similarly, railroad cars or other rolling equipment fouling a track segment is not considered a "signal indication." In short, the Board cautions Soo Line to articulate a ieasonable nexus between its operating rules and signal indications for interpreting the meaning and application of 49 C.F.R. 11 We further conclude that no overspeed under the Federal regulations is present here. Although running a train or engine through an improperly lined switch is arguably an overspeed violation, FRA recently determined that a violation of 49 C.F.R (e) (2) exists when movement through an open switch results in damages above the accident reporting threshold under 49 C.F.R. Part 225. ~ February 13, 1996, Technical Bulletin and OP Safety Advisory No , p. 2. Because the record does not establish the property damage due to the incident (other than a preliminary observation by a Soo Line employee that there was "no real switch damage" (Munt, Tr. 9)) exceeded the reporting threshold, there is insufficient evidence to find that Mr. Robbins violated 49 C.F.R (e) (2). 12 ~ operating rules 9.11 and ~ operating rule ~ operating rule Fed. Reg FRA has identified two types of signal indications applying to the Federal regulations--active stop signals (~, wayside automatic block or cab signal indications) and passive stop signals (~, stop boards, flags or gates). Id. at

5 (e) (1). There is a bright line between deference and abdication when analyzing appeals of revocation decisions involving interpretations of signal indications. The facts in the instant case illustrate such a case. Based on its review of the docket, the Board finds that, as a matter of law, the railroad improperly revoked Mr. Robbins's locomotive engineer certification. Petitioner correctly reasoned that it was not FRA's intent to decertify engineers for running misaligned switches. The Board concludes that Soo Line best handle this incident under the railroad's internal disciplinary process for the violation of its operating rules. 16 Judgment Based on the above findings and conclusions, the Board hereby disapproves Sao Line's decision to revoke petitioner's certification as a locomotive engineer in accordance with the provisions of 49 C.F.R. Part 240. In the absence of further proceedings, the events concerning the December 6, 1994, uchange off" assignment shall not be considered an fncident of operational misconduct for the purposes of 49 C.F.R. 240~117(e) (i), (g) (3), and All Soo Line records, notations or references that specifically identify petitioner, all records kept in accordance with 49 C.F.R. Part 240, and any records containing references to Sao Line's revocation decision shall reflect the Board's disappro 1 decision. /.~.YJUN 21 Issued in Washington, D.C. on --~~-~ ~~~r /UL /Mark H. McKeon Chairman, Locomotive Engineer Review Board 16 As provided under 49 C.F.R (d), "FRA does not intend by issuance of these regulations to preempt or otherwise alter the authority of a railroad to initiate disciplinary sanctions against its e~ployees.. "