(American Train Dispatchers Association PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association

(a) The Chesapeake and Ohio Railway Company (hereinafter referred to as "the Carrier"), violated the currently effective Schedule Agreement between the parties, Rule 8(a) thereof in particular, by its arbitrary, capricious and unreasonable actual suspension against Claimant Trick Train Dispatcher H. L. Hiltibrand and ten (10) days' overhead suspension against Claimant Assistant Chief Train Dispatcher W. K. Cook following formal investigation (Board of Inquiry No. 7557) conducted June 1-2, 1972.

 (b) Because of said violation, the Carrier shall now be required to clear Claimants' personal records of the charges involved in the investigation of June 1-2, 1972 rate for all loss of time in connection therewith.

 OPINION OF BOARD: This dispute involves the discipline assessed the two
 Claimants as a result of a series of incidents starting at 2:30 A.M. extending to 4:40 A.M. on May 10, 1972 culminating in Train No. 51 striking a shifted load of steel protruding from a car in Train No. 192 as it passed that train resulting in $750. worth of damage and delays. Both Claimants were charged as follows:

The investigation notice and charge was dated May 19, 1972. On May 26, 1972 the notice was amended and the investigation was postponed at the request of a representative o 1972.

 Following the hearing, by letters dated June 7, 1972 both Claimants were found guilty and disciplined; the letters both stated:




Petitioner first alleges certain procedural defects in the conduct of this investigation: lack of pr in date of hearing which extended the time limit between date of notice and date of hearing beyond the ten day period provided in the Agreement. Rule 8(a) in pertinent part provides:

With respect to the time limit issue, we note that this matter was not raised by Petitioner until its rebuttal statement. Since this issue was not raised on the property (or at the investigatory hearing) we may not consider it at this stage of policy.

 The question of the adequacy of the notice is another matter. This issue was properly raised by Petitioner at every phase of this dispute. A comparison of the charge and the ultimate finding reveals significant discrepancies; for example the in the charge was a finding in the letter of discipline. Although we do not


believe the omission of the specific operating rules in the charge precluded the proper preparation Claimants and their representatives were fully aware of the incident under investigation, from the language of the charge, we are not convinced that the investigatory hearing stayed within the bounds of those charges. Since this is at best a very marginal question, we shall examine the merits of the dispute further.

 First it is our judgement that the record does not support Carrier's findings with respect to train it is brought out that Claimants could have stopped train #192 at any of six controlled signals and by this action prevented the accident from taking place. It is also obvious that the appropriate action by the operator at HX Cabin, the Track Supervisor or the Conductor of Train 9193 could also have prevented the accident. What might have been, however, is only relevant if the actual action ta judgment or malfeasance. We are not convinced that there is any evidence to indicate that any prudent employe would act differently than Claimants herein in the performance of their functions as dispatchers.

 In addition, there is no evidence whatever to support Carrier's contentions that Claimants violated certain operating rules including the broad injunction of Rule 108: "In case of doubt or uncertainty the safe course must be taken."

 We have frequently expressed our concern for the safe operation of the railroads in the United States and are well aware of the substantial responsibilities of managem we have afforded considerable latitude to management in dealing with employees who's performance created hazards to themselves, their fellow employes and the public. However, we have at the same time insisted that the rights of employes, as enunciated in the agreements must be protected and that the discipline imposed must be
We have consistently held that there must be substantial evidence in support of Carrier's disciplinary action; in the absence of such evidence we are compelled to disturb the imposition of penalties. In the matter before us the record of the i we have followed in all Divisions. That standard was well presented in Award 12952 (First Division) as follows:




Based, therefore, on our evaluation of the evidence of record in the investigation expressed heretofore, we find that Carrier improperly assessed the discipline in this case.



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






                        By Order of Third Division


ATTEST: ~rI W ~ r
 Executive Secretary

        Dated at Chicago, Illinois, this 22nd day of November 1974.