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NATIONAL RAILROAD ADJUSTMENT BOARD THIRD D:XISION Burl E. Hays, Referee Award Number 19918 Docket Number TD-20110 (American Train Dispatchers Association PARTIES TO DISPUTE: (The Atchison, Topeka and Santa Fe Railway Company (-Coast Lines- STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that: (a) The Atchison, Topeka and Santa Fe Railway Company (hereinafter referred to as "the Carrier") the parties, Article VII thereof in particular, by its action in assessing discipline in the form of fifteen (15) demerits upon the personal record of Train Dispatcher T. H. Eshelman following formal investigation held on March 30, 1971. The record of said formal investigation fails to support Carrier's charges of rules violation by the Claimant, thus imposition of discipline was arbitrary, capricious and unwarranted. (b) Carrier shall now be required to clear Claimant's employment record of the charges which purportedly provided the basis for discipline, and to compensate him for any wage loss sustained as a result of the Carrier's action. Claimant T. H. Eshelman was regularly assigned to a train dispatcher relief position in the San Bernardino, California train dispatching office of the Atchison, Topeka and Santa Fe Railway Company. He received a letter over the signature of Superintendent H. J. Briscoe dated April 27, 1971, which read in part: OPINION "As result of formal investigation conducted at Needles March 30, 1971, decision has been reached to assess your personnel record fifteen (15) demerits for responsibility in failure to report delay to train 668-Q-1 by train 788-Q1, or to ascertain cause for delay, Needle 18, 1971; violation of Rules B, 251,and 775, Rules Operating Department, and Instructions to Dispatchers." On May 12, 1971, Vice General Chairman N. S. Peterson of American Train Dispatchers Association, on behalf of Claimant, wrote a letter to Carrier's Assistant General Manager, C. E. Roll ins, which read in part: "Pursuant to the provisions of Article VII, Sections 3 and 4 of the Agreement in effect between this Company and its employes represented by the American Train Dispatchers Association, this is to advise that the decision of Superintendent Briscoe in this case is not accep

Award Number 19918 Page 2

Docket Number TD-20110

"therefrom is hereby registered."

Much correspondence ensued at higher levels over procedure. Carrier representatives consistently maintained the matter was not properly presented in that Claimant should have filed a claim for removal of the demerits with their designat In this instance the proper person was Superintendent Briscoe. On the other hand, Claimant argues that it was not necessary to file a "claim"; that this was a disciplinary procedure and that he properly filed his "appeal" with Carrier's Assistant General Manager, C. E. Rollins, relying on the provisions of Article VII, Sections 3 and 4 of the Agreement.

If claimant were seeking relief for alleged violations of the Agreement involving working hours or wages there is no question but that a claim should have been filed with Superintendent Briscoe. However, it is difficult to conceive of a claimant filing an "appeal" from a decision invoking a penalty in a disci We feel this case is properly before the Board.

The record of investigation contains substantial evidence indicating Claimant violated Carrier's ope Board has consistently recognized the fact that carriers owe to employees and to the public a heavy legal obligation to maintain discipline among those in their employ, and we are not inclined to attempt to challenge Carrier's judgment as to disciplinary measures. We will, of course, recognize and apply restrictions created by applicable labor agreements. (Awards 5032, 9422, 10429 and many others).

As to the discipline assessed we quote from Award 10429 (Rock):

"It is not the function of the Board to determine the quantum of discipline to be imposed in any given case. That is the responsibility of the carrier, and unless the record shows that its action was arbitrary or capricious or that it acted in bad faith, its judg not be set aside. 9422 (Bernstein), 9935 (Weston), 9511 (Elkouri). The record before us does not support such a finding."

As to the disciplinary action taken in this case we cannot find in the record any justification for the allegation that it was "arbitrary, capricious and an abuse of managerial discretion."

It follows that this claim must be denied.

FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

LABOR !C!_IBER'S DISSENT TO A'".ARD N0. 19918, DOCKET TD-?.0110

R,FFEREE HAYS

Award No. 19918 correctly finds no merit in Carrier's procedural anoument that Claimant ct.ould have filed a claim for removal of the demerits with the Superi.-ten~ent rather than an appeal from the Superintendent's decision, ._,atin.

";f claimant were seeking relief for alleged violations of the Agreement involving working hours or -:ages there is no question tut 'hat a claim should hive been fil:d with Superintendent :~,risco-. Ho.-;aver, it is difficult to conceive of a claimant filin3 an 'appeal' frcm a decision invoking a penalty in a disciplinary matter with the officer who rendered it. '~(e feel this case is properly

The Award errs in stating:

"The record o_° investigation contains subst^.ntial evidence inlicatin5 Cl;.iaant violated Carrier's operatin.- rules and instructions.

··· "

C1_i^=nt was notified '_:n3 investigation was "concerning delay to trains 668-n-7. and 308-P-1 _ tr_in 788-.^-1, and failure to repcrt this delay ... The transcript nl·_inly F~ho;·nd Claim at received a delay report fr:m train 308-P-1 and recorded this delay information. Carrier apparently ~~,as aware that Claimant ad 7~-do a record of this delay report and that fact pas established in the investigation transcript. 'he discipline notice included the supplemental statem3nt "or to ascortain cause for '?elay" in addition to "failure to report delay to train 668-q- did report the delays to train 668-c-1. Claimant asked the operator at Barstow what the conductor on train 668-;-1 showed on Conductors 827 (report) and ::as informed "no delay" end "no delay" was what Claimant reported.

Award No. 19918 states:

"As to the disciplinary action taken in this case we cannot find in the record any ,justification for the allegation that i'. _s 'arbitrary, capricious a managerial discretion."

This comment follows the statement in Award No. 19918 which either directly quotes or parrots from Carrier '.:ember's panel arCument brief, stating:

''his Board has consistently reoognized the fact that carriers owe to employees and to the public a heavy legal obligation to maintain discipline amons those in their emplcy, and we are not inclined to attempt to challenge Carrier's judgment as to discip_.'.nar~; measures. ~Ve :;ill, of course, recogniz^ and

L~i.P,0.1!~ L.c%'.D:R' S VIJ5 _.li' TO KAM NO. 1013, TD-2:10;

FAG I .ply .=_t.ictiono ncroatcd by arplicable labcr agreements. (Awards 502, :·1%",104?.9 and L.ny others). The .. _^·~ -.~zt-cr-._ in this ntatument deal,. . ith the quantum of discipline y:,tcr _,,_., _ V,- - ...c uank.., of ._..,.=p_i:e in Q_., case was =i:teen (13) :e:.__-l ._.... AT i; v11. .:o ever, We ,dearee of discipline, hcnevor s..all, die: .^.o: uni_ or oliMnato Oarrier's responsibility to establish proof of juilt prier to ,.__._::o disciplinary action. Any __ccipli.ie _bsert prce-' of .guilt is "arbitrary, capricious and 3n Lbuse cf -..ann,,vriai &=Mon% 7:11:: Bear.^_ is not limited to cnses ;here the quantum u= uiscii li..e , amen a cer,si. n degree nor should We ·u·=rd's concidoration r3 Curiin- .:u sulLs':nnti;l 90donue'MuiM be quaiiifi:d -, .::r quantum of dis:i;li U_ WaY. ..i_:, C^. .. ny eac:sionS, relied c.^. :die qu_iit'x1'o_ ^iscip-ll:e to I:Fui:y th dinal-,1W _-,, t':.= o^fonco^ r the Ecard ..a5 found -obstaatial evidence that guilt ..au :oen provan. ^(Aaar4s No. 19870, 1D871, 13577 and others.) I cast dissent. J. F. -'ric:;~cn