(American Train Dispatchers Association

PARTIES TO DISPUTE:
              (Consolidated Rail Corporation


STATEMENT OF CLAIM:
                    "System Docket No. CR-242

                Central Region-Youngstown Division


Appeal from discipline of ten (10) days actual suspension (time out of service to apply) assessed K. M. Erdner."

 OPINION OF BOARD: On January 26, 1984, at about 1:30 P.M. Claimant authorized
 Foreman Jones to occupy Track 2 between Akron and Warwick,
 Ohio with Track Car 9085. The authority was issued by telephone to Goodwin,
 the Operator at Warwick for relay by radio to Jones. After occupying the
 track Jones noted Track 2 was lined up for a conflicting movement by a B & 0
 train. He made radio inquiry to Goodwin who in turn attempted to reach Claim
 ant. When he couldn't do so, Goodwin authorized Jones to occupy Track 1. In a
 later conversation with Claimant Goodwin mentioned that Jones was on Track 1.
 Claimant then changed his authorization form to read No. 1 Track. He did not
 initiate a new Form.

 Later that evening the Supervisor Train Operations, Crelin, called Claimant at hone and informed him he was being held out of service. On January 27, 1984, Crelin wrote Claimant that:

          "Notification is hereby given that you are held out of service beginning 5:06 P.M. Thursday, January 26, 1984 in connection with the improper CT-401 track car authority issued at 1:01 P.m. Thursday, January 26, 1984 to track car 9085 at Arlington, Ohio."


On January 30, 1984, Claimant was notified to attend a Hearing on February 2, 1984, in connection with:

          "1. Your failure to issue proper CT-401 track car authority to MofW Foreman D. L. Jones on track car No. 9085 to occupy No. 1 track between Akron and Warwick at approximately 1:30 PM, Thursday, January 26, 1984 after being advised of track car No. 9085's movement on No. 1 track. Violation of Rules 805 and 806 of the Conrail Rules of the Transportation Department.

                      Award Number 26216 Page 2

                      Docket Number TD-26220


          2. Your failure to report first trick Warwick

          operator L. E. Goodwin's violation of rules 805 and

          806 in allowing track car No. 9085 to proceed from

          Akron to Warwick on track No. 1 without proper

          CT-401 track car authority when notified of move

          ment of track car No. 9085 on No. 1 track at

          approximately 1:30 PM, Thursday, January 26, 1984.

          violation of Rules D and 906 of the Conrail Rules

          of the Transportation Department."


At the Hearing Claimant testified that in a conversation with Goodwin regarding. the B & O train at about 2:10 P. M. on the day in question Goodwin said the rail car was on Track 1. Claimant thought he had made an error so he corrected his book to read Track 1. He denied knowing any problem existed until Crelin called him.

 Crelin testified proper procedure when changing track designation is to issue a new 401 Form. He also testified he was sure Claimant was not aware an incident had occurred until he called to notify Claimant he was being taken out of service. Jones testified Goodwin instructed him to change his Form frcan Track 2 to Track 1.

 Goodwin testified that when he first learned of the situation from Jones he tried to reach Claimant on the "hot line" as well as by commercial phone but the line was continually busy. Accordingly he checked for conflicting traffic and then tol informed Claimant at that time but testified he did so during the tour of duty saying "At same point . . . I don't remember when I did advise (Claimant) as to my having altered the 401."

 On February 6, 1984, Claimant was notified he could receive as discipline "Ten days actual suspe
The organization contends Claimant did no more than correct what he thought was his own clerical error and did not issue a change because he thought Goodwin's copy showed Track Number 1 throughout. Further, Claimant could not have reported Goodwin's violation of Rules because he was not aware there had been a violation until he was called by Crelin.

 Carrier asserts that at the Hearing it was established by substantial evidence that Claimant violated Rules 805, 806, D and 906 of the Rules of the Transportation Department. These Rules deal with authority for the movement of cars, completion of Forms and the immediate reporting of violations of the Rules.

        "Rule D provides:

                      Award Number 26216 Page 3

                      Docket Number TD-26220


          "Employees must devote themselves exclusively to the Company's service while on duty, render every assistance in their power in carrying out the rules and special instructions, and promptly report any violation to the proper official.


          To remain in the service, employees must refrain from conduct which adversely affects the performance of their duties, other employees, or the public. They must refrain from conduct which discredits the Company."


Rule 18 of the Agreement, dealing with Discipline, Hearings and Appeals provides in Section 1(b)
          "An employee may be held out of service pending hearing only if his retention in service could be detrimental to himself, another person, or the Company."


on February 6, 1984, Claimant was notified he would receive "ten days actual suspension (Time out of service to apply)."

 Whether this Board given the evidence produced at the Hearing, could have reached the same decision as did the Carrier is not the question. The scope of our review was defined in Third Division Award 18550 thus:

          "This Board will not weigh the evidence adduced at the hearing nor resolve conflicts . ~ . tae will not disturb Carrier's decision where it is supported by substantive evidence and not arbitrary or capricious . . . ."


Further, Awards too numerous to require citation establish that this Board will not attempt to resolve conflicting testimony. Given Goodwin's testimony that he had advised Claimant of the altering (emphasis supplied) of the 401 we must conclude Carrier had a substantial basis for its decision and the decision was not arbitrary or capricious.

      But this does not end the matter.


      Rule 18, Discipline, Hearings and Appeals provides in part:

                      Award Number 26216 Page 4

                      Docket Number TD-26220


          "Section 1. Hearings


          b) An employee may be held out of service pending hearing only if his retention in service could be detrimental to himself, another person, or the Company.


          Section 2. Discipline


          (b)(1) If the discipline is suspension, the period

          of suspension shall be deferred if within the suc

          ceeding six (6) month period following notice of

          discipline the accused employee does not commit

          another offense for which discipline is subsequent

          ly imposed."


Claimant has almost forty years of service and has been a Dispatcher for thirty four of those years. There is nothing in the record to suggest that his retention in service would be detrimental within the meaning of Rule 18, Section 1(b). Inasmuch as the discipline assessed covered the period of time Claimant was suspended prior to the Hearing, it cannot be upheld.

        FINDINGS: The Third Division of the Adjustment Hoard, 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 Hoard has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.

                      Award Number 26216 page 5

                      Docket Number TD-26220

                      A W A R D


        Claim sustained.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division

Attest: 4~


      Nancy J. er - Executive Secretary


Dated at Chicago, Illinois, this 15th day of January 1987.