NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number TD-22421
Robert A. Franden, Referee
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(The Atchison, Topeka and Santa Fe Railway Company
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") violated the current
Agreement (effective September 1, 1949) between the parties,
Article VII thereof in particular, when the Carrier assessed twenty
(20) demerit marks on the personal record of Extra Train Dispatcher
J. M. Munoz (hereinafter referred to as "the Claimant") based on an
investigation held on August 26, 1976. The record, including the
transcript of said investigation, fails to support the Carrier's
charge of rule violation by the Claimant thus imposition of twenty
(20) demerit marks was arbitrary and unwarranted.
(b) The Carrier shall now be required to remove the twenty
(20) demerit.marks and clear the Claimant's personal record of the
charges which allegedly provided the basis for said action.
OPINION OF BOARD: The facts in the instant case are not in dispute.
Extra train 3667 West in violation of a red
signal entered an interlocking which it occupied for one minute
before backing out. The claimant was on duty as dispatcher at the
time. The Carrier takes the position the claimant had the responsibility
to report the violation under operating Rule E:
"E. Employes must do everything in their power to .
see that the rules and special instructions are
followed by all,'and they must promptly report
violations."
The claimant takes the position that he was not aware of the
violation and therefore could not possibly have any responsibility
to report it.
Award Number
22468
page 2
Docket Number TD-22421
There are three devices in the dispatcher's office tdxfch
would advise him that the train had run an interlocking signal
displaying red: 1) bell that rings when a train passes as iatarlocking signal 2) a TCS Graph recordi
on the dispatcher's panel.
The Carrier takes the position that if claimant did not
detect the violation he was not being attentive to his duties in
violation of operating Rule &.
It say be reasonable to assose tbet an
attentive dispatcher would have noted the violation but this does
not prove that claimant failed to report something of
which he
hart
actual knowledge. The claimant was found guilty of failing to
report the violation under Rule E not failure to be attentive to
his duties under some other rule. The transcript of the investigation does not support the Carrier's
burden of proof in the instant case. It has not. We will not let
the fact that the discipline is light influence our decision.
The cases are clear as to the Carrier's burden to support its
charge with-evidence of probative value.
FINDINGS: The Third Division of the Adjustment 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 June 21, 1934;
That this Division of the Adjustment Board has jurisdiction
over the dispute involved herein; and
_,___,_
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That the Agreement was violated. - ~w;:,.
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A W A R D ~., ~,
i; ~faV
Claim sustained.
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NATIONAL RAILROAD ADJUSTMENT"iOARb-:.:
A ST.
TTE
. a.
,,,.By Order of Third Division
Executive Secretary
Dated at Chicago, Illinois, this 31st day of
July 1979,