STATEMENT OF CLAIM: Claim of the General Committee of The Order of Railroad Telegraphers on Missouri Pacific Lines in Texas and Louisiana that Mrs. J. L. Sammons be paid for time lost during the period December 2, 1944 to July 7, 1945, inclusive.
OPINION OF BOARD: This is a discipline case brought before the Division on a joint submission. There are three employes involved in this occurrence, D. D. Speeg, the Train Dispatcher located at DeQuincy, Texas, the Claimant, Mrs. J. L. Sammons, an Operator located at Huffman, Texas and Mrs. R. . Pearce, an Operator ocated at Gulf Coast, Texas.
On November 20, 1944, the Train Dispatcher issued the following Train Order:
The Claimant, Mrs. Sammons, immediately repeated the Order to the Dispatcher and it was completed to her at 7:37 A. M. and cleared the train at 7:37 A. M. As Train No. 1/63 was approaching Huffman Mrs. Sammons left the phone to deliver the Order to Train No. 1/63 without waiting to hear the Operator at Gulf Coast repeat the Order. The Operator at Gulf Coast failed to copy the last paragraph of the Order that provided "First 63 Eng 1219 meet Second 160 Eng. 163 at Dyersdale". And as a result Train Second 160, instead of meeting Train First 63 at Dyersdale, met that train on the main track at Victor, located 3.6 miles east of Dyersdale.
An investigation was held at Houston November 29, 1944 and the Claimant, Mrs. Sammons, was dismissed from service on December 1, 1944.
Claim for reinstatement with pay for time lost was made by the Petitioner in behalf of Mrs. Sammons. An agreement was reached whereby she would be reinstated to service with seniority unimpaired and the question of pay for time lost submitted to this Division.
Carrier contends that since the Claimant did not wait at the 'phone and ascertain if the Operator at Gulf Coast repeated the Order correctly, she violated Rule 211 of the Uniform Code of Operating Rules.
Numerous awards of this Division have held that where an investigation is held in accordance with the established rules that "it is not the function of this Board to weigh conflicting evidence in a discipline case and if the evidence is such that, if believed, it will support the findings of the carrier, the judgment of the carrier will not be disturbed". Award No. 3321.
The evidence in this claim is not conflicting, and the question before us is: Is it sufficient to sustain the action of the Carrier?
At the hearing held in Houston, Train Dispatcher testified in regard to loving the Order in question. After giving the Order to the Claimant he testified as follows:
It is true that the Claimant did not wait to hear Gulf Coast repeat the order, but we think she did do what was required under Operating Rule No. 211. , Under that rule, when the order is completed by the Dispatcher, it is the duty of the Operator to personally deliver a copy of the Order to each person addressed. Note the language of the rule:
As soon as the Dispatcher completed the Order, the Claimant immediately delivered the Order to the Train Crew of the approaching Train No. 1/63. It seems to us she complied with Operating Rule 211. The Dispatcher was her superior officer and she understood that she was to give the Order to Train 1/63 when the Dispatcher completed it. And that excused her from listening to Gulf Coast repeat the Order. To have done otherwise would have slowed the train.
Carrier, also, relies upon Circular No. 80 identified as Item No. 9. It reads: 3339-3 258
The only reasonable inference to be drawn from this record is that both the Claimant and the Dispatcher consider she was excused from checking the Order when Gulf Coast repeated the Order. Under Circular No. 80 the operator could only be excused from observing whether other operators repeated the Order correctly when there was an emergency. Only the Dispatcher had the right to so excuse the operator. It was his duty to decide if an emergency existed. Since he did excuse the Claimant in this instance, she had a right to rely on his judgment as he was her superior. The claim should be sustained.
FINDINGS: The Third Division of the Adjustment Board, after giving the parties to this dispute due notice of hearing thereon, and upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act, as, approved June 21, 1934;
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and