NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
(Supplemental)
Daniel House, Referee
PARTIES TO DISPUTE:
TRANSPORTATION-COMMUNICATION EMPLOYEES UNION
THE PENNSYLVANIA RAILROAD COMPANY
STATEMENT OF CLAIM:
Claim of the General Committee of the
Transportation-Communication Employees Union on the Pennsylvania Railroad, that:
1. Improper appeal hearing was held on November 26, 1662,
relative to discipline of thirty (30) days' suspension as indicated by
Form G-32, dated October 12, 1962, in connection with violation of
Rule 317, September 6, 1962. P. 0. Tucker, Franklin, Indiana.
2. Claimant did not violate Rule 317.
3. Claimant was charged with improper rule.
4. Appeal hearing was postponed November 24, 1962 (Saturday)
but for some unknown reason it was rescheduled the morning of
November 26, 1962 after 8:30 A. M.
5. Because of this unreasonable action by the Carrier, it is
requested that Mr. P. 0. Tucker, Agent-Operator, Franklin, Indiana,
shall be compensated for any and all monetary losses sustained as
a result of the improper discipline of thirty (30) days suspension
and his service record be cleared.
OPINION OF BOARD:
Claimant Tucker, an Agent-Operator assigned
at Franklin, Indiana, was, on September 17, 1962. tried by Carrier on the
charge that he:
"Permitted Extra 5924 North to enter block at Franklin, Indiana, at 10:43 A. M. on September 6, 1962, occupied ~by an opposing
train, violation of Rule 317, Book of Rules for Conducting Transportation."
After he was notified that he had been found guilty and would be
suspended for 30 days, he appealed as follows:
"I wish to appeal decision rendered by PTM DO Mr. L. W. Huey,
Form G-32, Case No. F-131, held September 6 [sic], 1962.
I did not violate Rule 317, Book of Rules for Conducting Transportation as charged; therefore, I ask for hearing with Superintendent-Personnel."
The appeal hearing was held on November 26, 1962. The Superintendent
denied the appeal in a letter dated November 28, 1962:
"The trial record shows that you failed to comply with the clear
and definite requirements of Rule 317 of the Book of Rules for
Conducting Transportation on the date in question, and in view of
the serious nature of your dereliction in this respect your request
for leniency cannot be given favorable consideration . . . .
In spite of Carrier's contention that we are limited to the issue of
leniency, we are convinced by Claimant's letter requesting hearing of his
appeal, and 'by the lack of any clear showing that he withdrew that request as it reads, that we must decide among other issues whether the original hearing proved that Claimant had violated Rule 317.
We find no proof of any impropriety prejudicial to Claimant in the
appeal hearing; Ave find no proof that the scheduling of that hearing was
prejudicially improper, since Claimant was given an opportunity, which
he declined to avail himself of, to refuse to proceed without representation;
and we find no evidence which proves that Claimant was charged with an
improper rule. Thus, the Claim must stand or fall on whether it was proved
at the original hearing that Claimant had violated Rule 317.
Rule 317 includes the following:
"Before admitting a train other than a passenger train to a
block, the operator in charge of the block station or block-limit
station at the entrance of the block must know that the block is
clear of opposing trains and of passenger trains, and that no opposing train or no passenger train has been given permission or a signal
to enter the block . . ." (Emphasis ours.)
From the record of the September 17th hearing we find that Claimant
was aware that at 8:13 A. M. work train 8902 had entered the block between
Greenwood and Franklin and was permitted to operate in either direction
between Greenwood and Mile Post 12; that he knew that 8902 was operating within the block until about 2:57 P. M.; that at 10:34 A. M. he permitted
extra train 5924 to enter the block at Franklin, headed towards Greenwood,
and that at that time he could not know whether 8902 was moving in opposition to 5924.
Claimant's defense at the hearing was that since 8902 had no assigned
direction it could not be considered to be in opposition to any other train
in either direction. This is not a sound defense; a train moving in a direction opposite to another train is an opposing train to that other train.
The Rule requires that the operator "must know" that the block is clear of
opposing trains; Claimant only knew that it was possible that 8902 was not
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operating in a direction opposite to 5924, not that it was a fact. Thus it is
clear that Claimant was not complying with the requirement of the Rule
that he know that there was no opposing train in the block.
FINDINGS: The Third Division of the Adjustment Board, upon the
whole record and all the evidence, finds and holds:
That the parties waived oral hearing;
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
That the Agreement was not violated by the Carrier.
AWARD
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of THIRD DIVISION
ATTEST: S. H. Scbulty
Executive Secretary
Dated at Chicago, Illinois, this 1st day of November 1968.
Keenan Printing Co., Chicago, Ill. Printed in U.S.A _
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