It is contended in Claimant's behalf that at about 5:12 A. M. on July 9, 19'53, Dispatcher Nixon, whose tour of duty was 11 P. M-7 A. M., issued train order No. 9 authorizing the movement of northbound freight No. 56 against the current of traffic on southbound main track. The order was as follows:
That Brewer is the designation of Carrier's freight yard at Danville The distance from Hillsdale to Brewer is approximately thirty-one miles and Cayuga is an intermediate station approximately fourteen miles from Hillsdale and seventeen miles from Brewer. The operator at Hillsdale received and delivered train order No. 9 to Train 56 at that point, lined up the interlocking cross-over between the two main tracks, permitting Train 56 to cross over and proceed on the southward track witout stopping. The operator at Cayuga received a copy of train order No. 9. The entire operation was set up on account of Crew of Train 56 had been on duty, and the fact that northward passenger trains Nos. 8 and 18 would interfere with an expeditious movement of Train 56, Hillsdale to Brewer with possible delay account of Hours of Service Law. While crew of No. 56 was setting out cars at Cayuga, Nixon instructed operator at that point to figure on putting No. 56 back on the northward main track to Brewer Yard. After No. 18 passed Cayuga at 6:40 A. M., the operator lined up the interlocking crossover permitting No. 56 to use the northward main track, Cayuga to Brewer Yard. Some time later Nixon called the operator to copy a train order for No. 56 to proceed on the northward main track and was informed that No. 56 was moving, and the order was not issued the record shows No. 56 as having departed at 6:43 A. M. That the recoil also shows that Nixon, although his tour of duty ended at 7:00 A. M., was relieved at approximately 6:45 A. M. and the record does not show that train order No. 9 was ever cancelled or annulled.
In view of these facts it is Petitioner's contention that Carrier did not comply with the requirements of Article 9 of the Agreement, in that neither a proper hearing was held and no precise charges were given Claimant prior to the alleged hearing held on July 21, 1953, and that Carrier has failed to produce any competent evidence wherein the four operating rules, the basis of disciplinary action taken, were violated by Claimant. Cited in support of the claim are Awards 2941, 5793 and 6250.
On behalf of Respondent Carrier it is stated Claimant was dismissed for violating Operating Rules 220, 836, 837 and Form D-R. That by reason of Claimant's acts he should have known the operator was confused and it was his duty to make immediate inquiry which he did not do. That when Claimant did not issue the necessary order to return the train to the northward track when a dangerous situation had been created, but instead merely instructed Telegrapher Cook to permit No. 56 to depart and then signing off and not reporting the situation to the incoming dispatcher makes disciplinary action necessary. That it can well be concluded that he knew the train had gone without orders from Cayuga and he knew he had confused the operator and had put the train on the wrong track. That on the matter of hearing credibility of Claimant's evasions and excuses are for the hearing officer's consideration and in the absence of proof that no arbitrary action resulted from the hearing it is not proper for determination here. Citing Awards 6620, 6430, 6103, 6598 and others.
In view of the circumstances shown in this case we feel that the offer of Carrier to reinstate as a dispatcher was fair and should have been accepted by Claimant. Also that there was a substantial compliance with the hearing rules and no prejudice resulted against Claimant as contended in (a) of the 6888-3 1297