IATIML RAILROPD ADJUSTISN"T BOARD
THIRD DIVIS-1, Oil

 Robert J. Ables, Referee

 Award Number 21601
 Docket fi=ber CL-21281

 F I~RT:ES TO DISFJT-: (Brotherhood of Railway, Airline and Steamship Clerks,
 (freight handlers, Express and Station Employes


Claim of the Syste-v: Committee of the Brotherhood
 (GL-79(30) that

 1. (a) Carrier violated Rale 18 of the Clerks' Agreement
 on January 17, 1974, (following an investigation which was rot conducted in
 a fair and impartial manner) when it disciplined Telegrapher-Clerk ?ors.
 R. L..Stewart, after failing to sustain the charge as set forth in caption
 of the investigation. (Carrier's file 380-3170).

 Carrier's action in. assessing M.rs. Stewart's personal

 record ·with thirty (30) days' deferred suspension was arbitrary, harsh, arid. an abuse of discretion.

 (c) Carrier shall now be required to expunge the discipline assessed and. all reference thereto, from Mrs. Stewart's personal record.

 2. (a), Carrier violated :,ales 18 and 25 of the Clerks' Agree
 2.^.E?nt, W~:E_": it required Vxs. '.'R. L. Stewart
 January 14, 1974, her. assigned rest day, and then failed and refused to co=easate
 rer at the aFpropride rate of pa'y as required b'°,,' te Rules .rig` reem.'

Carrier shall now be required to CCS=pensate NlrS. R. Stewart for five hours arid twenty minutes at tie ours. t-4Vi' rate cf nay of her regularly assigned. position of Telegrapher-Clerk,for January 14, 1974.
The Claimant. Mrs. R. L. Stewart, along with the head brakemanI was 'disciplined for a derai-I-ent, The Claimant

 had bean a control operator for at least five years. She was disciplined for her part in the derailment with a suspension for thirty days, which -ras deferred..

 The Claimant asks that such discipline be eapunged frog 'her record

 1150, the Clalrw".a?".t asks for pay fCr having to attend an in': 23 tigati0?1 on '^°r
 assigned rest day in Connection with this (Ii sci.-l ir_e. __
 Award I=ber 21601
 Docket Number CE-21281

 Page 2

 The essence of the complaint by the Carrier against the Claimant is that she did not follow a prescribed operating rule, thereby contributing to the derailment for which she should be disciplined, but because of the contributory negligence of the brakeman, the discipline imposed against the Claimant was deferred resulting thereby in only modest discipline against her. 7ne essence of the position of the Organization is that Claimant followed the prescribed rule and therefore was not responsible in any degree for the derailment and, accordingly, that she should not have received any discipline.

 The train in issue was stopped by a red block signal. The head brakeman telephoned the control operator, who is the Claimant here, to report the situation. Claimant conceded she had an indication or. the control board that the switches were not locked. As a result, she advised the brakeman: "his should be lined west mainside. Be governed by Rule 104(c) and flag through,"

 The Carrier takes the position that the control operator should have "instructed" the head brakeman "to take the power off the switch" and be governed by Rule 104(c) and that if she had done this there would have not been an accident.

 Rule 104(c) o" the Uniform Code of Operating Rules provides:

 rrl04(c): ZKAMINATIUN OF SWITCHES. __ Before proceeding from a Stop indication over a remote control switch under provisions c-L Rule 350 or Rule 402, member of crew must examine switch, see that switch points fit properly, and he must remain at switch until leading wheels pass over switch.

 if control operator does not know by indication on control panel that switch is lined and locked for route to be used, the switch =ast be placed in hand operation."
 Award Number 21601 Page 3
 Docket Number CL-21.231

 Rule lU4(c) states that the switch "must be placed" in hand operation if the control operator does not know from signal indication on the board that the switch is lined and locked. Such language does riot rake clear who is responsible to see that the switch is placed in hard operation. The best interpretation, however, is that a member of the crew mist place the switch in hand operation because Rule lO4(c) requires a "member of the crew" to examine the switch and see that the switch points fit properly.

 It would have been more precise and apparently the accident trould have been avoided if the control operator specifically told the brakeman to take the rower off the switch, and then got confirmation from, the brakeman that the switch was lined and locked for safe operation.

 But the question is, should she be required to do this, under the circumstances, in accordance with the rule?
Operating P..? n l 04( c), therefore, the control operator was not obliged to
 do more than tell him that the rule was operative. There waxld be no sense
 to the r%u.?e, which requires a member _of _the crew --- not the control operator
 _- to examine the switch arid see that the switch points fit properly it it
 Was not t° trainman who had to make the necessary inSDectlon of the
 switch. And, if he had done 'What he was required to do, he would have
 found t:>e wedge blocking the switch whic caused the derailment. Claimant
 opera ti: g te coy th r of board cot! d not have operated tile switch. Accord
 ingly , the control operator did all that was reasonably expected of her
 finder the circums Lances and 'tinder the rule.
on the control board for five yea=s, testified that -Where there has been
 an uncertain indication? about a switch, a crew nember has called and asked.
 for permission to take the power off the switch. Under this practice it
 cannot be said, as the Carrier contends, that Claimant had an "equal" obli
 ga Lion to make the decision to take the power off the s,.-ii itch.

 There is an additional reason to conclude that Claimant took reasonable arid responsible action under the circumstances.

 She conceded that the light on her control board indicated that the switch was not locked into position- but she did not concede that this autoratically indicated the switch was not in fact lined and locKed. Claimant testified., w'i th otlt rebuttal, that signal. indications on the control board were sometimes faulty.


To the question about the meaning of a blinking switch light on her board and whether that indicates a switch is rot locked, the Claimant testified: "Well sometimes, but not all the time. It gives you an indication that they are rot locked but that is not trite at all. times." She testified further that only -When the safety circuui. is (which are in the track and riot the board) are working properly can there be any certainty about the significance of an indication on the board, and the Claimant testified she had had trou'ole with that board a week or two previous.

 In this day of complex electronic equipment, it is not uncommon to question whether the equipment is out of order or the warning indicator is itself malffunctioning.

 On the record, therefore, the rule was ambiguous as to who had responsibility to place the switch in hand operation, therefore, the art.~ig;tUty must be held against the Carrier that has exclusive responsibility to issue operating r,-?es. Also, since the switch could be placed in hand operation only by a crew member, and a crew member under the rule is required to exa=ine the switch, it =follows that Claimant had no responsibility to "instruct" the t r ai=a-: to take the power off the switch. This is true. not only because this was imrl°icit in the job of the trainman but because Claimant could not know for certain that the switch was not lined and locked since the control board did not always give accurate and reliable information on the position of the switc'.1i.
It would be unjust under these conditions to hold the control board operator responsible for the derailment and the rules do not" require it.

 The Investigation eras Fair

as alleged.,

 It is true the notice for the hearing could have been more specific about charges or possible charges against her but she could not have been in doubt that the accident had occurred, why it had occurred, a^d that operation of the control board and conversations between her and the crew member were crucial to fixing responsibility for the cause of the accident. Accordingly, notice by the Carrier to the Claimant that the Company ·would undertake a formal investigation to develop facts "and place responsibility" for the derailm<ent of a specific engine at a specific tine and specific place was adequate notice as to the purpose and object of the investigation and the likelihood that Claimant might be charged with responsibility for the accident. `The fact that Claimant was armed with the information to answer questions during the inves t'- ', gation and that she eras duly represented by her Organization confirm that Cl as.ant had all essential inforration about the investigation and possible charges against her.
                  Docket Number CL-21281

r
 3
 1,:o Ccmnensation for Atte nding lnvestigation

          The claim also asks for compensation for the tire spent at the

investigation which was held on Claimant's assigned rest day. E

 In a recent award on November 30, 19'76 - Award ,'21320 (?horsey), E
 it was found that the Carrier did not violate the agreement and that it was
 the practice it the railroad industry that an employee urho is charged with
 a violation of rules is not contractually entitled to pay for time in attend
 ance at the hearing. It is easier to accept that. pay is not authorized when
 attending an inves'igaLion where it is found that the Carrier did not violate
 the Agreemen t than would be true if the Carrier was to be found, as here, to
 have violated the Agreement.
 in the situation where the employee is exonerated of the charges
 against him, a good ardent can be made that the "costs" of the defense
 shoal d be assessed against the company. That seemingly sensible argument,
 however, must be balanced against the better reasoning of not permitting
 costs to 4 e a wa?-dpd to such Claimant because of the potential for opening a
 floodgate for filing specious claims in tire hope and on the contingency that
 a claim ::o-_'?d be sustained. it is only one step further from awarding costs
 for exoneration from discipline charges to awarding costs for the successful
 proseclatio n or" a grievance. -As there is no history in this industry, or in
 others, to u,Tard such costs to a success-
 ful party, there is n0 sound basis to disturb this precedent. More inDor tans as far ^-as this dispute is concerned, the parties have agreed in Rule 18 of their v=ese='2t contract concerning "Discipline and Grievances" that:

              "Employ ee s called by Carrier to attend

              investigation will be ccm pensa tea a t

                the a-a pr opria to rate of pay" . !


Since there is a specific rule covering a partiC",-.ar class of persons ::ho will be paid for attending an investigation concerning "discipline", it follows that those employees not covered by such specific provision shall not be entitled to compensation to attend an investigation concerning discipline. Presumably, if the parties :gad intended otherwise, they would have included such reauire=ent in the contract.

 Thus, pay shall not be auCh_orized for Claimant for attending the investigation o:? her Off day because 'here is no general or specif is precede=?t to pay costs for arbitration and there is no rule on this property which specifically, or by fair inference, supports payment of any costs.
                      1*7

                      40 yo

ATTEST: ~V. / '
      .Executive Secretary


Dated at Chicago, Illinois, this

 29th day of

 Award Number 21601
 Docket Number G2-21281.

 FIN1hIEGS: The Third Division of the Adjustment Board, upon the
 _ whole record and all the evidence, finds arid holds:

 That the parties waived oral hearing;

 Page 6

    That the Carrier and the fmployes 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 jLz-risdi
 Lion over the dispute involved herein; and

 That the Agreement was violated.

 A W A R D

 Claims 1.(b) and 1.(c) are sustained.
 Claus 1.(a) and 2.(a) and 2.(b) are denied.

 Fv.3TI0"~LAL RAILROAD fi.DvUS'i2Ek71' BOAS
 By Order of Third Division
977

 July 1977

        G, v