(American Train Dispatchers Association PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association

(a) The Chicago & Western Indiana Railroad Company (hereinafter referred to as "the Carrier"), violated the effective Agreement between the parties, Article 6(a) thereof in particular, by its arbitrary, capricious and discriminatory disciplinary action in assessing fifteen (15) days' actual suspension against Claimant Train Dispatcher G. L. Hardwidge as the result of formal investigation conducted June 22, 1973.

 (b) Because of said violation, the Carrier shall now be required to clear Claimant Hardwidge's personal record of the charges involved in the investigation of June 22, 1973 and compensate him for all loss of time in connection therewith, plus interest at the annual rate of six per cent (67) beginning with Carrier's scheduled pay dates when said compensation was due for the work days involved in the suspension.

 OPINION OF BOARD: On June 14, 1973, while Claimant was on duty as a Train
 Dispatcher with responsibility for the area in question, two trains were permitted to operate on the same track in opposite directions simultaneously, which Following an investigation, the Hearing Officer notified Claimant that after reviewing the transcript: "I find that it reveals that you were, in fact, in violation of Rule 204 inasmuch as Order No. 1 of June 14th was not addressed to Erie Extra 3620 N suspension.

 The Organization, as its first contention, argues that Claimant was not afforded a fair and impartial hearing. This position was based on the conduct of the hearing itself, including alleged prejudgement of guilt, as well as on the contention that Carrier did not require the attendance of and make available certain witnesses, including the hearing officer. A reading of the transcript of the investigation indicates that there was considerable turmoil during the course of the hearing, caused at least in part by the persistent efforts of Claimant's representative to find errors in the conduct of the proceeding. However the record does not support the position of Petitioner in the conduct of the investigation, per se. With respect to the matter of witnesses the record indicates that there was absolutely no showing that th


had any relevant information bearing on the particular incident under investigation, even though Claimant was given ample opportunity to make such showing. Moreover there was no agreement proviso requiring Carrier to call witnesses; Claimant had the obligation to produce his own witnesses and he failed to avail h somewhat uncomfortable with the Hearing Officer's refusal to testify, under all the circumstances of this dispute, we do not find that this action was in itself sufficien constituted grounds for reversal of Carrier's conclusions.

 With respect to the merits, Carrier's Operating Rule 204 contains the following provisions with reference to whom train orders must be addressed:

Carrier's conclusion was based on the fact that Claimant issued a train order which had the effect of taking away the superiority of the northbound train but did not furnish that train a copy of the order. Claimant admitted that he did n had interpreted Rule 204 similarly under analagous circumstances. The record supports Claimant's contention in this respect; however there is no evidence to show that Carrier had been aware of, much less acquiescing in, such conduct. We have held repeate own misconduct regardless of the fact that other employes may also have been guilty of similar misconduct (see for example Award 15978).

 The record in this case supports the charges against Claimant. There is no showing that Carrier acted arbitrarily or exercised capricious judgment in imposing the suspension in this case. Under all the circumstances, we will not disturb C




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: ~~1
 Executive Secretary

 Dated at Chicago, Illinois, this 13th day of December 1974.
              Dissent to Award 20557, Docket i?`-20510


In Award 20557 the Hoard has exceeded its jurisdiction when adjudicating the dispute contained in Docket TD-20510. The Board is not empowered to change Agreement rules but must confine itself to the interpretation or application of Agreements covering rates of pay rules, or working conditions.

    The Discipline Rule, Article 6, of the Agreement reads in pertinent Dart:


        "Train d_spatchers will not be disciplined without a fair hearing before a designated officer of the -Hail,~:ay Company. Investigation shall be held within ten (10) days after written notice is given the employe of the charges preferred against him. f?e shall have the right to have a representative of his choice present at the investigation to hear all oral and to read all written testimony, and to bring out any facts in connection with the case.


Award 20557 states "I:oreover there eras no agreement proviso requiring Carrier to call witnesses; Claimant had the obligation to produce his own witnesses and he failed to avail himself ofthis right." Even a casual reading of the Discipline Rule should have revealed that the employe does not have the riE,ht to call his own eritnesses under the Discipline ule of the Agreement. However, the employc is entitled to a representative and this representative is entitled under the Agreement to "bring out any facts in connection with the case". In addition "a fair hearing" could only be construed to be an investigation to fully and completely develop all the facts regarding the charges preferred against the employe.

 Prior to the hearing the Dnployes' representative wrote to the Carrier advising that certain persons should be made available as witnesses at the hearing to afford the Claimant the fair hearing contemplated in the Agreement. The Carrier in reply advised that the Carrier was not obligated under the Agreement to ma;e these persons available as r:itnesses and the Drrployes had been instructed in the notice of charges to the Claimant that if certain persons were desired as witnesses, the 1-`mployes could summon them. Some of the persons requested as witnesses by the Drployes were made available as witnesses at the hearing but others were not. The Carrier made a unilateral determination as to vhat persons should be summoned as witnesses and which persons should not be summoned as iritnesses. Clearly, the Carrier was not interested in a fair hearinZ but had made a prejudgment as to which "facts in connection with the case" were going to be developed in the investigation in direct violation of the terms of the Agreement, which amowited to a denial of "a fair hearing" which was Claimant's right under the Discipline Rile.
 Dissent to Award ?_0557, Docket TD-20510 (Cont'd)

 One of the persons which Carrier refused to make available as a witness at the hearing, in spite of the prior written notice and repeated requests at the hearing, was the Carrier's Rule ;caminer-Chief Train Dispatcher who conducted the hearing. In addition to having pertinent knowledge of the incident under investigation, i.e. the movement of the two trains, the Rules Examiner would have been able to present relevant testimony in regard to the culc;z allegedly viclLted as L;o 'she application or interpretation of these rules on the property.

 Carrier's contention that it was under no obligation to call the persons requested as witnesses does not destroy the Agree;nent requirement that the employe be grazted a fair hearing and that he or his representative be allowed to bring out any facts in connection with the case. Likewise, Award 20557 cannot destroy t?:ese Agrees-ent rights and at best Award 20557 can only be conidered to have miserably failed to interprct and/or apply these provisions of the Agreement as the Board is not e»:pc,-ered to detract from, i.e. change, the terns of the DisciplL:e Rule in the Agreement.

 Azard 20557 recognizes that Claimant was disciplined because "Order No, of June i4th was nor addressed to Erie tetra 3620 I;orth" and the Carrier had held that ClaL:.wa had thereby violated hule 204. Award 20557 cites a portici. of Rule 204, stating:

        '"Train orders must be addressed to those who are to execute them. . ."


Rule 204 then states:

        "those for a train must be addressed to the conductor and engine man and to anyone who acts as its pilot"


and further states:

        "Orders addressed to the operators restricting the movement of trains must be respected by conductors and engine men, the same as if addressed to them."


Therefore, you have an ambiguity within Operating Rule 204, i.e. orders restrict ing the movement of a train must be addressed to the train but orders rentrictinF the movement of a train addressed to the operators must be respected by the conductors and engine men of the train the name as if addressed to them. The Board is not expected to and cannot interpret an Operating Rule as this is not the duty or function of the Board. The Board's duty or function is to interpret or apply the Agreeme
                          -2-

Dissent to Aroraxd 20557, rocket T',D-20510 (Cont'd)

 the Board must look at the evidence presented in the transcript.of the investigation to find the correct reaping and/or application of the Operating Rule on that property. The investigation is where the guilt of the employe is to be proved and the Carrier must bear the burden of proof in discipline cases.

    The Carrier failed to present a shred o= evidence to show that it was

not an accepted practice on the C&WI for the train dispatcher to issue orders
 restricting ":rains (to rermiit opposing movements against t'.^.e current of
 traffic) by :.a·:ino the o^erator puce t^e signal blocking devices (controlling
 entering the territory .-herein. the train order restriction occurs) and then
 issui^g the o_per to t::e operator ~.o be executed by the operator. All of
 the testimony of train dispatchers at the hearing, i.eludinT Carrier's Relief
 Chief Train _:i pn tchcr-:.Rules i=-iiner, confinred the traaia order book evidence
 and clearly s::onred that such restricti-, train orders were addressed only to
 the Operator to execute by holdin.- the restricted train. at the controlled
 signal protccted t; a blocking device until the opposing train granted the
 superiority '~,y the train order had ='-:killed the terms of the train order
 issued. This :.a:--dIi::C was further confir:-ed by Engineer ::pore on Erie Extra
 3620 :;ortli at the hearinE; when he testified that in the twcnty-five ;;ear period
 lie has operated trains in that territory he had never received a train order
 such as the train order in question but that his train has been held at a
 signal ..hen a train is o=posite hi:I cn the same track. and on which tract: his
 train was the suoerior train. On this property the train order creating the.
 restriction Is addressed to the operator who is to execute the order by leav
 ing the blocking device in place. The iicaring Officer conceded at the hearing
 that placing the blocking devices were the required and necessary protection
 by asking if the necessary blocking devices had been placed prior to the
 issuance of the train order. In addition, this same Carrier officer was on
 the ground and at the station when the blocking devices were placed to protect
 the movement of this very train Erie bra 3.620 t;orth, ·ifhich is the subject of
 this investigation, but the Carrier held that this officer did not have know
 ledge which would require his attendance at the investigation as a witness.

 While Award 20557 has adversely affected the Claimant's right to a fair and impartial hearing as provided by the Agreement, the Board cannot render an Award which :could have the effect of destroying the right to a fair hearing to bring out any facts in conncction with the case as rrovided by the Agreement for the board do 20557 failed to perform the function of the Board by failing to interpret and apply Article 6, the Discipline Rule of the-Agreement.

                          -3-

Dissent to Award 20557, Doel_ot TD-20510 (Cont'd)

 Award 20557 exceeded its jurisdiction when it interprets and/or determines the application of Carrier's Operating Rule, which is not a proper function of the Board. Award 20557 makes an erroneous as well as an improper interpretation of operating :-.~.le at the hearing.

    Award 20557 is clearly in error and I must dissent.


                                L

                                J

                                J. P. Erickson

                                Labor Member


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