(American Train Dispatchers Association PARTIES TO DISPUTE:

STATEMENT OF CLAIM:

Please allow 8 hours pay at dispatchers rate for violation of dispatchers scope agreement. On Nov 24 local 777 called 700am at mcGehee Eng 2043 Ccndr ellis Engr Watson Went from McGEhee to Talluha and Back to McGehee on Verbal Authority of the Train Master at McGehee. Under General Order no 80 this train only had Authority to go from McGEhee to Tulluha. A train order is the only Authority that could get him back to McGehee legally. This is a Violation of the Rules and the ....

                          CLAIM $2


Please allow 8 hour at dispatcher rate of pay for violation of dispatcers scope rule on Dec 3 1980 work train eng 2023 condr Pugh engr fuller called at Monroe 700am were instructed by dispatcher davidson to go to collinston and copy order for protection against the ferriday local. After arrival of work train at Collinston Condr Pugh states that yard Master George Dent told the work train that 'they are holding the Ferriday local at Ferriday until you get there, just go on'. This is a very unsafe practice and violation of the rules and our scope rule ...The work train went from Collinston to Ferriday with only the yardmasters say so." (sic)

 OPINION OF BOARD: As a procedural matter, the Carrier raises objection to
 consideration of these Claims by the Board on the basis of
 laches. The Carrier notes that the two Claims were filed on November 24 and
 December 3, 1980, respectively, whereas the Claims were not submitted to the
 Board until April 25, 1985. This assertion overlooks, however, that more than
 two years elapsed between the declination by the Carrier's highest officer and
 the required ensuing conference. No explanation as to this extensive period
 was offered to the Board. Under these circumstances, the Board finds that the
 Claims are entitled to review on their merits.

 Involved here are the movements of two trains on extra trips not included its the General Orders covering the normal operations of the trains. In one instance, the movement was authorized by verbal authority of the Trainmaster, and in the other, the movement was authorized by the Yardmaster. In neither instance was instruction given to a Train Dispatcher to convey such orders to the train crews.
                        Award Number 26496 Page 2

                        Docket Number TD-26383


In defense of its position that Train Dispatcher work was improperly omitted, the Organization points to the following Rules:
                      "ARTICLE 1


            (a) Scope


          This agreement shall govern the hours of service and working conditions of train dispatchers. The term 'train dispatcher,' as hereinafter used, shall include Night Chief, Assistant Chief, trick, relief and extra train dispatchers. It is agreed that one Chief Dispatcher (now titled Division Trainmaster on this property) in each dispatching office shall be excepted from the scope and provisions of this agreement.


                (b-2) Definition of Trick Train Dispatcher Positions


          This class includes positions in which the duties of the incumbents are to be primarily responsible for the movement of trains by train orders, or otherwise; to supervise forces employed in the handling of train orders; to keep necessary records incident thereto; and perform related work. This definition does not change the work jurisdiction of train dispatchers."


The Carrier refers to its own authority to make general determination of train movement and inde reasoning sound. This, however, does not negate mutually agreed rules to determine how such operations shall be conducted. Article I (b-2) refers to Train Dispatcher duties as being "primarily responsible for the movement of trains by train crew, or otherwise ...." The phrase, "or otherwise," clearly indicates Train Dispatcher responsibility for train movement by means other than train orders.

 In the instances under review, the Board finds no broadly significant change in authority but ra a Yardmaster simply by-passed the established procedure of employing the services of a Train Dispatcher to convey orders for and direct the additional train movements.
                        Award Number 26496 Page 3

                        Docket Number TD-26383


The Claim must be sustained on its merits. The Board, however, finds that the remedy sought to be excessive and inappropriate. The Claimant seeks a day's pay in each instance because of the Carrier's actions. The organization seeks the remedy to "maintain the integrity of the agreement." While penalty pay for such purposes is indeed appropriate under some circumstances, the Board does n required in each instance would be minimal for the Train Dispatcher function. On one of the days, the Claimant was on his rest day and may or may not have been the appropriate claimant; on the other day, he was otherwise under pay. The offenses, which appear to be isolated in nature, do not require the remedy sought, although the sustaining of the Claim is intended to preserve the Agreement's integrity. The Board's determination not to award pay in this instance has no precedential value in other similar circumstances.

        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

        That the Agreement was violated.


                      A W A R D


        Claim sustained in accordance with the Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest: 01001,
 Nancy J er - Executive Secretary

        Dated at Chicago, Illinois, this 9th day of September 1987.

LABOR MEMBER'S

CONCURRING OPINION AND DISSENT

to

Award 26496 - Docket TD-26383

Referee Marx


This .award rejected the Carrier's defense on the basis of laches, and properly so in light of the on-property handling.

 This Award also sustains the claim on its merits and, therefore, in our opinion it reinforces the numerous awards which hold the responsibility for train movements b to train dispatchers under this Scope Rule, contained in most Train Dispatcher Agreements in identical language.

 Because the Award is correct in these respects, we signify our concurrence in the findings referred to, supra.

 We are troubled, however, that no penalty was assessed for the Carrier's breach of its Agreement with the Employees. The sting of this fact is mitigated somewhat by the Award's recognition that "penalty pay . . . is indeed appropr notation that "The Board's determination not to award pay in this instance has no precedential value
Third Division awards 2282, 6063, 21663, 23571, and 23928 were submitted in support of the Organization's position there must be a penalty to discourage carriers from violating their agreements. As Award 21663 said, "Some kind of convincer is required."

 By contrast, carriers have not been reluctant to impose disciplinary measures to bring errant em operating rules, assessing costly monetary penalties, even though these employees have not been enriched by their infractions. These Third Division Awards, all involving employees of this same Carrier, are illustrative:

 Award Employee Offense Penalty
 24387 Trackman Insubordination Dismissed from service.
 Claim denied.
 24389 Trackman Assault Dismissed from service.
 Claim denied.
 Labor Member's Concurring Opinion and Dissent to Award 26496 - Continued
Award Emplovee Offense Penalty
 24493 Signal Maintainer Negligence Dismissed from service.
 appeal denied.
 24634 Machine Operator Unauthorized Dismissed from service.
 absence Reinstated without pay.

 24635 Trackman Unauthorized Dismissed from service.
 absence Appeal denied.

 24683 Clerk Falsified employ- Dismissed from service.
 ment application Appeal denied.

 24776 Signal Maintainer Improper perform- 30-day suspension.
 ance of duties. Appeal denied.
 25033 Trackman Quarrelsome and Dismissed from service.
 insubordinate. Appeal denied.
 25189 Trackman Leaving assign- Dismissed from service.
 ment. .Appeal denied.
 25223 Trackman Unauthorized Dismissed from service.
 absence Reinstated without pay.

 25229 Signal Maintainer Improper main- Dismissed from service.
 tenance Appeal denied.
 25330 Patrol Foremen Improper inspec- Dismissal reduced to sus
 tion and leaving pension. Appeal denied.
 job

 25422 Patrol Foreman improper track 60-day suspension.
 inspection Appeal denied.
 25451 Communications Not stated in 30-day suspension.
 Maintainer Award Appeal denied.
 25599 Signalman Negligence re- 30-day suspension.
 sulting in fire Appeal denied.
 25684 Signalman Fighting Dismissed from service.
 Reinstated without pay.
 25828 Operator Faulty train 60-day suspension.
 order Appeal denied.
 25850 Operator Failure to issue 20-day suspension.
 train order Reduced to 15-day suspension.
 25854 Clerk Failure to pro- 60-day suspension.
 tect defective Appeal denied.
 track
 25896 Clerk Failure to pro- Dismissed from service.
 tect vacancy Reinstated without pay.

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Labor Member's Concurring Opinion and Dissent to Award 26496 - Continued
Award Employee Offense Penalty

 25912 Clerk Improper absence Dismissed from service.
 Reinstated without pay.

 26202 Train Dispatcher Near collision Dismissed from service.
 Reinstated without pay.
 26419 Assistant Signal- Rule G Dismissed from service.
 man Appeal denied.

 This is not to argue that, in some instances, even severe penalties for misconduct are not justi a carrier violates its agreements, it should likewise be subject to a penalty commensurate with the offense.

 As demonstrated herein, when the shoe is on the other foot, this Board has supported discipline which is intended to bring employees into compliance with a carrier's rules. Third Division Award 6637 said that deterrence is a recognized element in any system of discipline. Third Division Award 12842 for education, caution, and benefit rather than as punishment. Third Division Award 16065 said the purpose of discipline is not primarily punitive, but corrective. Third Division Award 20874 said discipline is administered for education, caution, and benefit of the offending and other employees. Third Division Award 21760 said the purpose of discipline is to rehabilitate, correct, and guide employees.

 In none of the above cases did the employee reap some monetary benefit from his misconduct, but they were nonetheless assessed a monetary penalty for "education, c
Unless this Board's Awards assess a monetary cost for "education, caution, and benefit", to "rehabilitate, correct, and guide" them, carriers will continue to test or ignore agreements, to flout the rules they signed.

 In the decision rendered by Third Division Award 26202, a discipline case involving these same p Labor Member's Concurring Opinion and Dissent to Award 26496 - Continued
his education, correction, and guidance, in a case in which he derived no monetary benefits from his misconduct. Here, the same Carrier is held guilty of misconduct, and is let off without a penalty, presumably because it derived no moneta no monetary loss was shown by the Employees; they just lost the work.

      This kind of disparate treatment cries out for correction.


We dissent to that part of the Award which denies any compensation for Carrier's violation of th one language-that of the economic market place, i.e., what will it cost?

 Only by imposition of monetary reparations can a carrier be taught the risk of non-compliance with contractual obligations. Unpunished misconduct is commonly thought t the penalty for misconduct while single individuals are punished for theirs.

                                      QJ LL

                                      R. J. Irvin

                                      Labor Member


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