(American Train Dispatchers Association PARTIES 7n DISPUTE:

STATEMENT OF CLAIM: Claim of the American Train Dispatchers Association that:

 (a) The Indiana Harbor Belt Railroad Company (hereinafter referred to as "the (terrier") violated the current Agreement, (effective April 28, 1932 with amendments to December 1, 1954) between the parties, Article 9 thereof is particular, when the Carri referred to as "the Claimant") a hearing within ten days from date of notice as provided in the Agreement and when the Carrier disciplined the Claimant by a letter of reprimand. The record, including the transcript, does not support the Carrier's discipline assessment or establish guilt on the part of the Claimant and the discipline decision was not rendered by the Superintendent or his designated representative. capricious, unwarranted, and an abuse of managerial discretion.

 (b) The Carrier shall now be required to remove the letter of reprimand and clear the Claimant's personal record of the charges which allegedly provided the basis for said action.

 OPINION OF BOARD: Claimant, G. C. Hartley, a Train Dispatcher regularly assigned
 to Carrier's Gibson train dispatching office located in
 Hammond, Indiana, was summoned to an investigatory hearing in connection with a
 derailment which occurred in the early morning hours of January 24, 1978, during
 Claimant's assigned third trick which commenced at 11:00 PM on January 23, 1978.
 The following written notification of investigation was issued to the Claimant,
 and one other train dispatcher, as well as five (5) members of the train and
 engine crew involved is the derailment:

Subsequent to the issuance of this notification, the record reflects the Local Chairman of the United Transportation Union, representing the five (5) charged train and crew members, made written request by letter dated January 30, 1973, to postpone the schedul°3 investigation due to the absence of a Mz. H. Co;;.ias, one of the charged crew members, then on vacation. As a result, the herring was


rescheduled for March 1, 1978. On that date the investigation commenced but was recessed shortly thereafter to March 7, 1973, due to the absence again of Yardman, H. Collies. Based on the facts adduced at the March 7th hearing, Claimant was determined to have been negligent with regard to the derailment is question by failing to notify the train crew that the Spud House Track on which the derailment occurred had earlier been taken out of sex-,rice. Accordingly, Carrier discipli reprimand.

 The Organization contends the instant Claim should be sustained on the basis of two (2) procedural defects caused by Carrier fn its handling of the Claim, both fatal to its case. The first procedural defect relates to the timeliness of the hearing. On this point, the Organization cites Article 9 (b) of the Controlling Agreement effective April 28, 1932, with amendments to December 1, 1954, which states is pertinent part the following:

          "(b) Hearings


          A train dispatcher who is charged with an irregularity which might result in his being disci< charge against him and given a fair and impartial hearing by the superintendent or his designated representative within ten days from the date of such notice."


The Organization argues that it did not join in the United Tsaasportation Union's request for a postponement of the hearing and therefore when Carrier granted such request without seeking its agreement to so do, Carrier violated Article 9 (b) relative to affording Claimant a hearing within the contractually agreed upon tine limit.

 The second procedural flaw, submits the Organization, arises from the same portion of Article 9 (b) wherein it alleges, the written charge against the Claimant was not precisely stated, as such, the Organization contends, Claimant was unable to adequately defend himself, for he was without knowledge as to what Agreement Rules and/or regulations he violated. In support of its position on this point the Organization cites as pertinent the following Third Division Awards, Numbers 1964-' (Lieberman), 14778, 170 (Dugan) and Fourth Division Award, Number 3508 (Lieberman).

 terrier defends its position relative to the timeliness allegation by arguing the postponement was not unilaterally effected either arbitrarily or by whim, but because it felt that all persons with knowledge of the incident should be present at the investigation. Carrier asserts that time limits in discipline cases are not sacrosanct unless it can be shown teat `,,he due process rights of the Claimant were violated or that the discipline assessed was excessive or capricious. In suppcrct of its assertion, Carrier relies on the followi Third Division Awards, :lumbers +781 (Stole), 8807 (Bailer), 11775 (Hall), 1717 (Jones), 18523 (Rimes), and 20423 (Lieberman). (terrier avers that in the instant case
                      Award Number 23966 Page 3

                      Docket Number TD-23223


the evidence reflects the following: (1) the hearing was timely scheduled; (2) at the hearing Petitioner acknowledged that the presence of all interested parties was a condition necessary for a fair and impartial hearing; sad (3) neither Claimant or Petitioner raised an objection at the time when the January 30o 1978 postponement letter was issued. Carrier further argues it is beyond reason to hold that as employs can prevent it from having a proper hearing over s time limit argument when the cause for delay is the unavailability of one of the prin Reason must be held to apply is the case at bar.

 As to the second alleged procedural defect regarding the preciseness of the charge against Claimant, in the instant case met all the criteria which are required of s precise charge in railroad discipline. In support of its contention, Carrier cites Third Division Award No. 3270 (Carter), which reads in pertinent part 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 appear one charged understood that he was being investigated and that he understood the dereliction of duty affording the basis of the complaint."


In addition., Carrier raises its own procedural issue, alleging Petitioner is guilty of having viola Section 3 First (i) of the Railway labor Act by bypassing the specified appeals procedure for handling disputes on the property when Petitioner appealed the instant claim directly to the highest appeals officer. Carrier asserts the appeals procedures as set out on the property must be followed even if that means appealing to the officer who issued the discipline in the first instance. Accordingly, is the instant case since the discipline was issued by the Supervisor Train Operations directed to the Superintendent prior to appealing to the Manager, Labor Relations. Carrier further argues that because Petitioner failed to follow the proper appeal procedures the instant claim must be dismissed.

 Notwithstanding its position on the procedural issue, Carrier advances its argument relative to the merits maintaining the Claimant's own testimony offered at the March 7, 1978, hearing proves he knew the track in question was out of service and though he had ample opportunity to prevent the use of the track, he took absolutely no affirmative action which was his duty and responsibility as a Train Dis Carrier acknowledges others beside the Claimant may also have had responsibility for the occurrence of the derailment, but that such recognition cannot be viewed as excusing Claimant from accepting his own responsibility and involvement in the subject incident.
                      A-ward Number 23956 Page k

                      Docket Number TD-23223


Our review of the entire record evidence leads us to the following determinations with respect to the several procedural issues raised by the parties:

        (1) TIMELINESS OF HEARING


        We are persuaded Carrier erred in not consulting with the Organization prior to issuing the continuance requested by the Local Chairman of the United Union. However, on balance, we do not believe this failure to consult is fatal to Carrier's case in the instant matter as such delay was is the best interest of all charged employer, including the Claimant, insofar as insuring ear protecting Claimant's due process rights by having everyone present at the hearing who had knowledge of the incident;


        (2) PRECLSENFSS OF CHARGE


        We are persuaded from a thorough reading of the charge that it was sufficiently precise, albeit void of any reference to any specific rule or regulation violation, to inform the Claimant of the reason for his being summoned to the hearing, and adequately stated to permit him to develop a defense against the allegations contained is the charge. We therefore find this procedural issue nonmeritorious;


        (3) IZIPROPFdi APPEAL OF CLALM


        We find the language of Article 9(c) to be clear and unambiguous. The pertinent section of 9(c) reads as follows:


              "(c) Appeals


              If the decision is not satisfactory to the train dispatcher, the case may be appealed through the committee to the next higher official within fifteen days from the date decision is received by the train dispatcher."


When read in conjunction with section 9(b), we are persuaded that the next higher official refers to the designated Carrier officer above the Superintendent level regardl designates a subordinate Carrier officer to conduct the hearing in his stead. Therefore, we conclude, the Organization properly appealed the instant claim.

 As to the merits of the case, it is our determination that a preponderance of the evidence suppo responsible for the occurrence of the subject derailment and accordingly, we must therefore deny the claim.
 Award Number 23966
 Docket Number TD-23223

 Page 5

        FINDINGS: The Third Division of the Adjustment Boards upon the whole record and all the evidences finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier affil Employes within the meaning of the Railway Labor Acts as approved June 21~ 1934;

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

        That the Agreement was not violated.


                        A W A R D


Claim denied.

 ATIBST: Acting Executive Secretary
        National Railroad Adjustment Board


NATIONAL RAILROAD ADJUS74ENT BOARD
 By Order of Third Division

 By 4 ie Brasch - Administrative Assistant

 Dated at Chicago. Illinois this 16th day of August 1922.