(American Train Dispatchers Association PARTIES TO DISPUTE ST. Louis-San Francisco Railway Company

 STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:

 (a) The St. Louis-San Francisco Railway Cosh, hereinafter referred to as "the Carrier" violated Article V thereof in particular, by its action in assessing discipline in the form of thirty (30) demerits upon Train Dispatcher E. W. Wyatt following formal hearing on March 31, 1971. The record of said formal hearing fails to support Carrier's charges of rules violation by the Claimant, thus imposition of discipline was arbitrary an
(b) Carrier shall now be required to clear Claimant's Employment Record of the charge which provided the basis for said action.

 OPINION OF HOARD: This is a discipline case in which Train Dispatcher E. W.
 Wyatt alleges that Carrier improperly assessed thirty (30) demerits against his Eniplayment Record in connection with a train order which he issued on February 1, 1977..
        The alleged improprieties of Carrier are as follows:


        1. The notice of formal hearing indicated prejudgoent of Claimant by the wording "all of which is in violation, etc."


        2. Claisaat's procedural due process rights were violated in that a single Carrier official preferred the charges, heard the evidence an the charges, and assessed the discipline.


        3. The finding of guilt is not supported by substantial evidence.


                      FACTS C&' RECORD


The notice of charge, iaied March 2% 1971, and issued by Superintendent of Transportation F. E. Wait, stated as follows:

        "Please report to Office of Superintendent Transportation, General Office Building, Springfield, No... 10:00 A.M., Wednesday, March 31, 1971, for hearing to develop the facts and determine

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        "Four responsibility, if any, in connection with the report you issued Train Order No. 7, 9·34 A.ll., Feb. 1, 1971, to Trains No. 236, No. 134 and No. 60 at Springfield, MD., and No. 235, No. 133 and No. 61 at Ft. Scott, tans., and to First and Second HWF at Greenfield, Mo., reading as follows:


                'No. 235 eng 904 met first and Second NWF ergs 729 and 835 at Liberal has right over No. 236 No. 134 and 11o. 60 Edward to Nichols and wait at Ash Grove until 1130A for No. 142 eng 549 No. 133 and No. 61 ha:e right ewer No. 236 No. 134 and No. 60 Edward to Nichols and wait at Edward until 201? No. 61 wait at Edward until 430P'


        which (1) is a combination of Orders and (2) two times were shorn far Train No. 61 to wait at Edward, one of which was in advance of scheduled leaeiag time of train No. 61, all of which is in Violation of Rules "B", 5, 92, 108, 201, 983 Paragraph 2, and 987 Paragraph 12 of the Transportation Department effective March 1, 1957.


        ?on may have representative as specified by agreement rules, if desired."


FeiUorltt formal hearing an the charge, conducted on March 31, 1971 by Superintendent Wait, and after findings by Superintendent Wait of Claimant's having committed violations of Transportation Department Rules, Superintendent Wait assessed thirty (30) demerits against claimant for such violations. The Rules found to haw been violated are as follows:

        "Rule 983. Peragrap* 2


        They (Dispatchers) will direct the movement of trains, issue train orders in a clear and concise manner, so that there my be but one interpretation, and will transmit and record them as prescribed by the rasa. They will guard against hazardous conditions and the lssuaaee of unsafe comb

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        "Rule 987. Parch 12


        Dispatchers nut avoid issuing a combination of orders or unnecessarily long orders that my not be easily understood by train man and engine men."


Superintendent Wait's action was appealed to Division Manager R. A. Rorie who declined to modify or remove the disciplinary action.

 As set forth in the March 25, 1971.notice, the substantive charges were that Claimant issued a train order which contained (1) an improper ccmbinatian of orders and (2 of which was in advance of the scheduled leaving time of Train No. 61.

 At the hearing neither Carrier nor Organization offered evidence, direct indirect, from any member of the train crews to which Order No. 7 was addressed. As regards the two waiting times in the order, the primary evidence was Claimant's aclmouledgement t 9:34 A.M. on February 1, 1971. The two waiting times for No. 61. at Edward, 2:01 PM and 4:30 PM, are shown on the fee* of this order and the earlier waiting time is in advance of No. 61's scheduled departure at 3:40 PM. Though the existence in the order of two waiting times was not contradicted or explained by Claimant at the hearing, Claimant's representative elicited evidence shoving that none of the involved trains left a station in advance of scheduled leaving time.

 The hearing evidence on improper combination of orders established that Train Order No. 7, involving a meet, right of track, and wait order, combined Carrier's Train O BA, SC, and E. It was also established that combining these form (SA, SC, and S) was not prohibitid by Carrier's rule book although certain ccmbinatioos of forms were expressly prohibUW by 11r book. The teatimoq an these facts coma from Carrier's expert witness. Chief Dispatcher J. D. Williams.

 Carrier's expert also testified to the effect that the last sentence of paragraph 2, Rule 983, Rule 987.9 Parag'aPh 129 and related verbal instructions operate in combined fashion in their application. His testimony in t regard is as follows:

        "* a *Q. Did the dispatcher guard against hazardous conditions and issuance of unsafe orders?


        A. I would haw to say no.


        Q. Have there been any written instructions as to what constitutes hazardous conditions or unsafe co

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. We have a role in the book that outlines the requirements and there have been verbal instructions issued.

 Q. Mr. William would yon specify that rule by number?

 A. Rule 987 and especially Paragraph 12.

 q. Mr. William for ready reference will you read Rule 987 Paragraph 12 into the record again?

 A. 'Dispatchers mist avoid issuing a combination of orders or ,unnecessarily long orders that any not be easily understood by train men and engine men'.

 Q. Have instructions been issued as to what constitutes an unnecessarily long order?

 A. One that would tend to be confusing to those receiving such an order.

 Q. Under what date were these instructions issued?

 A. I conldn, styy, but verbal instructions to this effect have
 been given at various times in the past.

 Q. rir. Williams which train man or engine man was confused by this order?

 A. Mat I cnn't ashy except that there was no exception taken to me persooatly about this order and I am assnedng,personally, that if the' had understood the order clearly they would have questioned it.

 Q. 11r. William is it customary for crews understanding as order to personally question yon about it.

 A. If the meaning, as written in an order, is clearly understood as it should be, as written, and it is not correct, exception certainly should be taken.

 Q. If a train order is not understood by train run and/oar engine man are they required to so notify the dispatcher before proceeding?

 A, Yes, I would say so."
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                        Docket Number TD-19650

                        tS ON PETITIONER'S CQMTENTIONS


We -find no merit in Petitioner's contentions concerning prejudgment of guilt and violation of proce
The verbiage "&31 of which is in violation, etc." is normal language for phrasing allegations of the type involved here, and the Petitioner has offered no meaningful explanation of why the language falls outside the norm. The mere csission from the notice of such terms as "ah.eged or reported" violations does not constitute probative evidence of pre ,judgment of guilt. Consequently, we find that the language of the charge in no way prejudiced Claimant or impinged upon his right to a fair and impartial hearing-

 We also find that there was no violation of Claimant's procedural due process rights. The handling of a charge by a single Carrier official through the assessment of discipline is normal procedure and, again, Petitioner provides no meaningful explanation of why this case falls outside the norm. Furthermore, the record shows that the case vas properly appealed to the Division Manager, and thus both the hearing rights and the e.Apeal rights of Claimant have been honored.

 With regard to Petitioner's contention that Carrier's findings of guilt are not supported by substantial evidence, we shall dismiss in part and sustain in part.

 The record contains substantial evidence in support of Carrier's finding that issuance of two (2) waiting times for Train No. 61 at Edward violated Rule 983, and we shall dismiss the claim to this extent. Petitioner notes that the two waiting times posed no hazard because the most restrictive of the two times governed, and that the 2:01 PM wait applied to No. 133 and the 4:30 PM wait applied to No. 61. Petitioner also noted that no trains departed a station ahead of leaving time.

 These facts are of no avail to Claimant because the existence or non-existence of a hazard or unsafe combination of orders is in no way related to the 8ule 983 requirement that dispatchers must issue "orders in a clear and concise manner, so that there may be but one interpretation". Since this requirement is separate and distinct from the requirement in the last sentence of paragraph 2, Rule 983, "hazardous conditions, etc.". it is subject to proof of violation separate from proof of violation in respect to the last sentence.
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It is true that by reference to the Time Table, and the therein scheduled departure time of Train No. 61, the intent of the order could be deduced to be that the 2:01 PM wait at Edward applied to Train No. 133 and the 4:30 PM wait applied to No. 61. However, this intent was not expressed by the text of the order. It expressed a different intent and the reader had to resort to collateral information in order to deduce its true intent. Self-evidently, such an order cannot be said to have been issued in a clear and concise manner so as to produce but one interpretation.

 We shall sustain Petitioner's contention that the record does not
 support a finding of violation of Rule 987, paragraph 12. The part of the
 charge concerning improper combinations of orders is evidently predicated on
 the combined text of the last sentence of paragraph 2, Rule 983, and para
 graph 12 of Rule 987. The test here for determining an improper order, as
 laid out by the previously quoted testimony of Carrier's expert witness, is
 whether the order is "one that would tend to be confusing to those receiving
 it:' Testimony from the train men and engine men, themselves, saying the
 order was confusing, is of course one source of evidence that would meet
 this test. Another source of such evidence would be an expert witness such
 as Chief Dispatcher Williams. However, the record shows that there was no
 testimony at all from the train and engine men. Chief Dispatcher Williams
 said he assumed the crews would have questioned the order if they had understood
 it clearly; this statement was too speculative and conjectural to have meaning
 ful probative value. Also, as previously noted, the hearing evidence established
 that the combination of orders used in Train Order No. 7 was not prohibited by
 Carrier's rule book. The record, in consequence, does not contain substantial
 evidence to support a finding of violation of Rule 987, paragraph 12, and we
 .hall sustain the claim to this extent.

 In view of the foregoing we shall dismiss the claim as to Rule 983, paragraph 2, and sustain the claim that Rule 987, paragraph 12, was not violated. Accordingly, we shall reduce the discipline from thirty (30) demerits to fifteen (15) demerits.

        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;
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That this Division of the Adjustment Hoard has Jurisdiction over the dispute involved herein; and

        That the Agreement was violated to the extent indicated in Opinion.


                        A W A R D


Claim dismissed in part and sustained in part, as indicated in Opinion and Findings.

                              NATIONAL RAILROAD ADJUSTMENT BOARD

                  ` By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicagoo Illinois, this 20th day of December 1972.