(American Train Dispatchers Association PARTIES TO DISPUTE: (The Chesapeake and Chio Railway Company

(a) The Chesapeake and Ohio Railway Company (hereinafter referred to as "the Carrier"), violated the currently effective schedule agreement between the parties, in particular kale 8(a), when on December 19, 1975 it administered thirty (30) days actual suspension, further reduced to fifteen (15) days actual suspension by letter dated January 2, 1976, to Train Dispatcher E. L. Cobb as a consequence of hearing held on December 11 and 12, 1975 - Board of Inquiry No. 72464 - such action being unjust, harsh, unreasonable, in abuse of managerial discretion, and is neither fair nor impartial.

(b) The Carrier shall now be required account of this flagrant violation to clear the record of Train Dispatcher E. L. Cobb and make him whale by reimbursing Mr. Cobb for time lost account

required to attend Board of inquiry on December 11, 1975, along with the days lost account serving suspension time at the pro rata rate because of said violation referre

















OPINION OF BOARD: The underlying facts in this case are not in
 dispute. Same are summarized in the following
 eaerpt from the Carrier's submission:


"On Wednesday, November 19, 1975, Train Dispatcher E. L. Cobb was working his regular assignment on Second Trick tram 3:59 P.m. through 11:59 P.m. on the "swing" position as dispatcher on the New River Subdivision. At this time, Train Dispatcher Cobb had (2) extra trains moving westbound on his Model Board. The first train, Extra 8225, had departed from 'h,xwmd, West Virginia, destined for Handley, West Virginia, had proceeded west to M. A. Cabin over No. 1 M.L. (Main Line) Track, then proceeded through the "Crossover" at M. A. Cabin to No. 2 M.L. Track and proceeded to Handley. It was at this time that Train Dispatcher Cobb noticed that the track circuit on No. 2 Track West at the Crossover was "occupied". He apprised Assistant Ch Dispatcher Long of this situation. Signal Maintainer H. G. Cole was then called and proceeded with his motor car to that location. Train Dispatcher Cobb then proceeded to block and code to the "stop" position that portion of track between Cotton Hill and N.A. Cabin on No. 2 M.L. Track. At 8:10 p.m. that evening, Maintainer Cole advised the Operator at Thvrmond, West Virginia, that he had found a 2-inch "poll apart" in the No. 2 rail at M.P. 409.5. Upon checking with Carrier's Supervision, Mr. Cobb instructed Operator Boyd to call a Section Force to effect repairs.

 The second train noted on Mr. Cobb's Model Board, Extra 7579 West, left Thurmond, West Virginia, at approximately 7:54 P·m·s using No. 2 M.L. Track to M.A. Cabin. It was intended that this crew would meet Train No. 92, using No. 1 M.L. Track at M. A. Cabin. As Extra 7579 approached Bachman near M.P. 408, the crew observed that the block signal at that location was an "approach" (Yellow over Red), which would dictate that the train proceed at a "slow speed" over the track. When Extra 7579 Proceeded within ten (10) car lengths of the signal, the signal went "Clear" (Green over Red). Extra 7579 then proceeded to M.A. Cabin Signal Location 130-L near Mile Post 409. After moving westward approximately sixty (60) car lengths, Extra 7579 struck the Motor Car of Signal Maintainer Cole which was situated on No. 2, M.L. Track.
                  Docket Humber TD-22315


          "The investigation on this matter vas scheduled for December 11, 1975. On December 3, 1975, a Notice of Investigation above Trainmaster J. W. Cowherd's signature was sent to Mr. Cobb, among others, advising him:


              'Yon are charged with responsibility in connection with Motor Car 1805 being struck and damaged in the vicinity of M. A. Cabin on No. 2 main line by Extra 7579-3787 West at approximately 8:45 PM November 19, 1975.'


          Petitioner was represented by Messrs. J. Gearhart and R. J. Irvin., General Chairman and Vice President of the Organization, respectively. ___"


During the formal investigation of this matter on December 11, 1975 Rule 957 of the Carrier's Operating Rules came up. On December 19, Claimant Cobb was notified that it had been found that he was at fault "for failure to comply with Rule 957 of the Operating Rules requiring yon to code and observe machine indication after positioning and prior to blocking control devices resulting in Extra 7579-3787 West striking Motor Car 1805 standing on Number 2 main line, M.P. 4o9.9, New River Sub-Division on November 19, 1975 at 8:45 PTA! ___." Rule 957 reads as follows

          "Where Operating Rules, Motor Car Rules or special instructions require protection to be afforded by the display of STOP indication an controlled absolute signals and/or controlled switches properly positioned to prevent opposing or conflicting movement, the Train Dispatcher must comply with the following instructions:


            (1) On Non-Code a Control acbines, devices

            controlling signals and/or switches must be

            blocked, but indications must first be observed

            to insure that the controlled functions in the

            field are in agreement with controlling

            devices.


              Where switch levers are provided with Out-ofCorrespondence lights, such light must be known to be functioning by manipulation of lever before blocking device is installed.

                  Award Humber 22291 Page 4

                  Docket Humber TD-?2315


            (2) On code a control Machines, devices

            controlling signals and/or switches must be

            blocked, but they must first be coded and

            indications observed to insure that the

            controlled functions in the field are in

            agreement with controlling devices. It the

            indication codes are not received assuring

            that such agreement exists, the controlled

            functions most not be used to provide pro

            tection. Blocking devices must be applied in

            accordance with instructions approved by the

            Signal. Department.


              (3) Model Board Indication mast not be accepted as assurance that a track section is clear of trains or engines when location of such trains or engines is not known.


              (4) Train Dispatcher must not use such protection whenever informed that work is being performed that could interfere with the normal functioning of Control Machine or associated code equipment.


              (5) When Protection cannot be afforded as outlined above, train orders may be used.


              (6) Train Dispatcher and/or Operator must make record of authority issued as required."


The Organization took the position that in relying on Rule 957 and other Rules, which were not mentioned in the December 3 notice, the Carrier failed to comply with Rule 8(a) of the contract. The pertinent part of said Rule reads a
            °A train dispatcher shall not be disciplined, demoted, or dismissed without proper hearing as provided herein. Suspension pending such hearing shall. not be deemed a violation of this principle. The hearing shall be fair and impartial and shall be held by the Superintendent or his designated representatives. Such hearing shall be held within ten days from the date of notice to the train dispatcher involved notifying him of the charge or charges. Such notice shall be in writing and shall clearly specify the charge.--=

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                  Docket Number TD-22315


Prior to considering the complex and technical facts that this case presents, it appears appropriate to consider the Organization's claim that the Carrier's case is defective because the Role 8(a) requirement that a specific There is no doubt that the contract requires notice as a condition precedent to any investigation that may culminate in discipline, and farther requires that anyy notice "shall clearly specify the charge."

 The underpinnings of such a contractual requirement can be readily understood. Specification of charges is based on the due process requirements that are part of our fundamental traditions. Just as a citizen is entitled to know the precise basis for a criminal charge or civil claim that he must defend against, an employe is entitled to know the precise dereliction that may be alleged against him in a hearing in the labor relations context. In the absence of notification of the charge, the accused is hampered in his ability to defend.

 Thus, in the instant case, it must be determined whether the Carrier met the specific charge requirement. In reading the portion of the notice of investigation set forth above, it can only be concluded that said notice made the Claimant aware that he was being accused of dereliction of duty in connection with a specific incident that occurred while he was at work on November 19.

 The failure of the Carrier to mention reliance on Rule 957 was hardly prejudicial to the Claimant. The Claimant and Organization could well bave.inferred from the accusation of "responsibility" that all pertinent Operating Rules might come up during the course of investigation, and a review of the reco numerous operating rules were discussed. In Award No. 3270 (Carter) the principle that is applicable to this case was stated as follows:

            "The formation of a charge and the giving of notice thereof need not be in the technical language of a criminal, complaint. It is sufficient if it appears that the one charged understood that he was being investigated and that he understood the dereliction of duty affording the basis of the complaint ---"


Since in the instant case the Claimant knew what he was to defend against, Carrier cannot be deemed to have failed to meet the requirements of Rule 8(a), and the procedural argument of the Claimant must be rejected.
                    Award Number 22291 Page 6

                    Docket Number TD-22315


Turning to the merits of the case, the following testimony of Train Dispatcher E. L. Cobb, the Claimant herein, is of significance:

              °Q. After yon removed the block from the signal at South Fayette and the Extra 7579 West moved by that signal did you watch his movement on your Model Hoard?


            A. No sir. Ho.


              Q. From the Model Board with the signal 130 L coded to stop and blocked, could you from the Model Board tell when Extra 7579 moved past that signal.?


            A. No sir.


              Q. Can you tell us why you couldn't tell us when the engine gyred by that signal?


            A. I wasn't observing his at the tine.


              Q. If you had been observing him, could you have . told from the Model Board when he moved by that signal?


            A. Yes sir."


There is evidence in the record that the CTC machine malfunctioned on November 23, 1975, or four days, after the incident that is the subject of the instant discipline. The Organization argues that said evidence should control this case, because it demonstrates that equipment malfunction was the praxi.mste cause of the accident that was the basis for discipline. Bat it is to be noted that although the malfunction evidence exists, the record reflects a dispute as to whether same could have caused the mishap under discussion. It is however, to be observed that the e November 19, and subsequent thereto, and that no accident occurred (other than on November 19) during such use.

 The Organization goes on to argue that if equipment malfunction could have caused the accident, that should suffice to exculpate the Claimant, and that circumstantial evidence, with present limitations, cannot suffice for discipline. This Board cannot accept
                  Award Number 22291 Page 7

                  Docket Humber TD-22315


such a contention, since it is well known that circumstantial evidence can sometimes suffice to establish a criminal conviction. A circumstantial case need not be absolutely air-tight, but guilt can be . established if the circumstantial evidence establishes saw beyond a reasonable doubt.

 In any event, it is to be noted that the investigation hearing of December 11, 1975 went into the circumstances of the November 19 occurrence in great detail. There is a substantial amount of evidence in the record to support a finding of the Claimant's culpability. The exerpt from the Claimant's testimony alone, constitutes an admission that the Claimant failed to exercise due care in failing to observe the position of the train from his Model Board.

 All of the above provides the perspective that is required by this Board to resolve the appeal at bar. It must be quite clear that the only manner in which this Board could sustain the present claim is by deciding that the Claimant's witnesses are to be credited over those of the Carrier, and, in the face of substantial evidence in the record supporting the Carrier's decision, substitute our judgment for that of the investigating Board. But it is well established that such an approach goes beyond our authority and proper function. For example, in an early Award of this Division (Award Ho. 5032, by Judge Parker) it was stated:

            "'* Our function in discipline cases is not to substitute our judgment for the company. or decide the matter in accord with what we might or might not have done had it been ours to determine but to pass upon the question whether, without weighing it, there is some substantial evidence to sustain a finding of guilty. Once that question is decided in the affirmative the penalty imposed for the violation is a matter which rests in the sound discretion of the Caapnny.and we are not warranted in disturbing it unless we can say it clearly appears from the record that its action with respect thereto was so unjust, unreasonable or arbitrary as to

            constitute an abuse of that discretion. ."


        In Third Division Award Ho. 13179 (Dorsey) we find:

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                  Docket Number TD-22315


            "In discipline cases, the Board sits as an appellate forum. As such, our function is confined to determining whether: (1) Claimant was afforded a fair and impartial hearing; (2) the finding of guilty as charged is supported by substantial evidence; (3) the discipline imposed is reasonable.


            We do not weigh the evidence de novo. If there is material and relevant evidence, which if believed by the trier of the facts, supports the finding of guilt, we mast affirm the finding."


Numerous other Awards of this Division along the sane lines include 21442 (MaBrearty); 21242 (Caples); 21299 (McBrearty); 21291 (Lieberman); 21290 (Lieberman); 21241 (Eischen); 21236 (Wallace); 21234 (sickles).

 The discipline in this case is a rather light one, so that the possibility of modification or reversal on the basis that discipline was arbitrary or excessive is not possible. Given all the circumstances and analysis set forth above, it can only be concluded that the decision of the Carrier and the discipline here involved must stand.

        FINDINGS: The Third Division of the Adnustment 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 dune 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.

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                  Docket Humber TD-22315

                  A W A 8 D


        The claim is denied.


                          NATIONAL RAILROAD ADJUSTMENT HOARD

                          By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 31st day of January 1979.