NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number TD-22735
Martin F. Scheinman, Referee
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(Norfolk and Western Railway Company
STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association
that:
(a) The Norfolk and Western Railway Company, formerly the New York,
Chicago and St. Louis Railroad Company (hereinafter referred to as "the
Carrier"), violated the current Agreement (effective August 1, 1951) between
the parties, Article 8 thereof in particular, when the Carrier refused to
give Train Dispatcher C. W. Hardin (hereinafter referred to as "the Claimant")
a hearing within ten days from date of notice as provided by the Agreement,
when the Carrier failed to give the Claimant a fair and impartial hearing as
provided by the Agreement and when the Carrier suspended the Claimant from
service for thirty (30) days from Wednesday, November 16, 1977 to and
including December 15, 1977 based on hearing held on September 21, 22,
October 7 and November 1, 1977. The record, including the transcript, fails
to support the discipline assessment made by the Carrier and/or establish
guilt on the part of the Claimant. Therefore, the imposition of discipline
was arbitrary, capricious, unwarranted and an abuse of managerial discretion.
(b) The Carrier shall now be required to compensate the Claimant
for the net wage loss suffered by him, as provided by Article 8 (e) and
clear the Claimant's personal record of the charges which allegedly provided
the basis for said action.
OPINION OF BOARD: Claimant, Train Dispatcher, C. W. Hardin, after investiga
tion, was suspended for thirty (30) days. Claimant was
charged in the notice of hearing as follows:
"You are charged with hi-rail #3701 and Extra West-2413
both occupying westbound main track between M.P. 172 and
M. P. 183 Friday, August 26, 1977, at approximately 3:35 P.M.
without proper protection being provided for hi-rail #3701."
The Board is of the opinion that this case is properly before us
for consideration. Therefore, we reject Carrier's petition for dismissal.
As to the merits, we conclude that Carrier failed to meet its burden
of establishing, by substantial evidence, that Claimant was guilty -as charged.
As such, the claim must be sustained.
Award Number 22889 Page 2
Docket Number TD-22735
Given the disposition of this particular dispute on the merits,
it is unnecessary for us to address the procedural issues raised by the
Organization.
FILINGS: 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
That the Agreement was violated.
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST: "-Executive Secretary
Dated at Chicago, Illinois, this 18th day of June 1980.