Form I NATIONAL. RAILROAD ADJUSTMENT BOARD Award No. 27596
THIRD DIVISION Docket No. TD-27319
88-3-86-3-636
The Third Division consisted of the regular members and in
addition Referee Herbert L. Marx, Jr. when award was rendered.
(American Train Dispatchers Association
PARTIES TO DISPUTE:
(Norfolk 6 Western Railway Company
STATEMENT OF CLAIM:
...we ask that the discipline assessed Mr. Zimmerman be remanded and
any reference to this incident on his personal record be removed. Also, Mr.
Zimmerman was required to be absent from duty November 3 and 4, 1985 to attend
this investigation, and we ask that he be paid for time lost." (Carrier file
TD-FTW-85-6j."
FINDINGS:
The Third Division of the Adjustment Board upon the whole record and
all the evidence, finds that:
The carrier or carriers and the employe or
employes
involved in this
dispute are respectively carrier and employes within the meaning of the
Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the
dispute involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Following an Investigative Hearing, the Claimant, an Assistant Chief
Train Dispatcher, received a notice of discipline as follows:
"Referring to formal investigation held on November
4, 1985; wherein you were charged with permitting the
unrestricted movement of Train 4BC01 between Fort
Wayne, Indiana and Sidney, Indiana, on October 17, 1985,
when said train contained car TTPX 82605, bulkhead flat
car, which is restricted to 45 MPH under Fort Wayne
Division Timetable No. 3, Rule No. 4, effective Sunday,
October 14, 1984.
For your responsibility in your not taking the initiative to prohibit the unrestricted movement of C
TTPX 82605 on October 14, 1985, you are hereby assessed thirty (30) days deferred suspension from th
Form I Award No. 27596
Page 2 Docket No. TD-27319
88-3-86-3-636
In the Board's view, there is no basis to interfere with the Carrier's assessment of discipline.
prior to the departure of the train, the Claimant became aware of information
which would have restricted the train to a speed of 45 miles per hour. He
also had the means to confirm further this information, given to him by the
Train Dispatcher on duty with him. The Claimant did discuss the matter with
the Yardmaster by telephone, but he failed to follow through to implement
advice to the train as to the speed restriction. (The train proceeded on its
trip, reaching unrestricted speeds of up to 60 miles per hour.)
Rules applicable to Train Dispatchers are sufficiently precise to
have required the Claimant to initiate action to insure that the train would
operate at the required restricted speed.,
As pointed out by the organization, others were guilty of improper
conduct and/or failure to comply with applicable rules. This, however, in no
way vitiates the Claimant's responsibility. The Claimant simply stopped short
of exercising the full extent of his authority.
As a procedural matter, the Organization suggests that the Hearing
was improper in that it was conducted by a Superintendent other than the one
directly in line of authority over the Claimant. Article 9 (b) provides that
the Hearing shall be granted "before the Superintendent."
The Carrier determined that "the" Superintendent was required to appear as a witness to give tes
selected another Superintendent to conduct the Hearing. Since a Hearing
officer may not give testimony at a Hearing he conducts, it is the Board's
view that the Carrier took the proper course of action. Further, review of
the record shows that the Hearing was conducted in a fair and thorough fashion
and the principals involved had full opportunity to have their versions of the
incident fully presented.
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest:
Nancy J er - Executive Secretary
Dated at Chicago, Illinois this 27th day of October 1988.
LABOR MEMBER'S DISSENT
TO
Award 27596 - Docket TD-27319
(Referee Marx)
This Award is an example of palpable error, in its most favorable
light.
Appellant Train Dispatcher was charged with, permitting the unrestricted
movement of a train containing a restricted car.
The Board's Majority mistakenly found, in part:
"Rules applicable to Train Dispatchers are sufficiently precise
to have required the Claimant to initiate action to insure
that the train would operate at the required restricted speed."
The Award points to no such rules and there are none.
Carrier's rules require the crews to know the consist of their trains,
and to observe applicable speed restrictions when restricted cars are
in their trains.
Rule 583
"The Conductor must inform the Engineer of equipment or cars
that restrict movement of the train or require special handling."
This rule obviously places sole responsibility on the Conductor to inform
his Engineer of equipment restricting the movement of their train or requiring special handling. The
Train Dispatchers by this rule.
Rule 109
"A train or engine must not be run faster than the maximum speed
authorized in the timetable. Speed restrictions shown in timetables, bulletins, by speed limit signs
must be observed. Engines in service or in tow, with or without cars, must not exceed the maximum sp
unit having the lowest authorized speed."
This rule applies to crews operating trains and engines, requiring their
observance of applicable speed restrictions. There is no evidence of applicability to Assistant Chie
Rule 532
"Train dispatchers must issue instructions clearly so as not
to be misunderstood. They must take the initiative to see
that trains are moved safely, must anticipate dangerous conditions, and must not issue unsafe combin
Labor Member's Dissent to Award 27596, continued
Rule 532 is the only rule applicable to Train Dispatchers which
was cited in the record. There is no evidence that Appellant was required
to take any initiative in this case. The other cited rules require crews,
not Train Dispatchers, to take the initiative, as part of their responsibilities.
The record is totally void of any evidence that Appellant was required by the rules, or even pas
restricted car was in their train.
The Award, being based on this erroneous finding, exceeds the jurisdiction of the Board, and is
I dissent.
R. J. Irvin
Labor Member
CARRIER MEMBERS' RESPONSE
TO
LABOR MEMBER'S DISSENT
TO
AWARD 27596, DOCKET TD-27319
(Referee Marx)
The Labor Member's Dissent contains the same argument and Rule Citations as
made before the Board by the Organization and the Labor Member, and seeks to
transfer the responsibility of Claimant, an Assistant Chief Train Dispatcher to the
Train Crew, Yard Master and Yard Clerk. Although the Yard Master and the Clerical
Employee were both charged and assessed discipline for their negligence, it
certainly did not relieve the Claimant Assistant Chief Train Dispatcher of his
responsibilities under Carrier's Operating Rules 531 and 532 reading:
"Rule 531
Train dispatchers will issue orders governing the movement of trains,
and will see that the orders are transmitted, recorded, and repeated
according to prescribed forms and rules. They will record the
movement of trains. They will note on the train sheet important
incidents occurring during their tours of duty and will make the
various other records required.
Rule 532
Train dispatchers must issue instructions clearly so as not to be
misunderstood. They must take the initiative to see that trains are
moved safely, must anticipate dangerous conditions, and must not
issue unsafe combinations of train orders." (Emphasis added)
The record of handling on the property which was submitted to this Board,
reveals that Carrier stated to the Organization;
"There is no dispute that claimant put the yardmaster on notice
that there might be a restricted car in TR BC-01; however, he did not
instruct the yardmaster to make a physical check of the train (354Q);
nor did he contact a clerical employee to check the inbound wheel
report which indicated that TTPX 82605 was a bulkhead flat (363Q).
Claimant is responsible for the movement of trains on the Ft. Wayne
Division, including supervision of forces involved therewith.
Claimant in the performance of his duties is required to take the
initiative to see that trains are moved safely. This he failed to
do."
CMs' Response to LM's Dissent to Award 27596
Page 2
and,
"Claimant has the responsibility as a train dispatcher to see that
trains move safely. In this regard, Operating Rule 532 reads in
part: 'They [train dispatchers] must take the initiative to see that
trains are moved safely, must anticipate dangerous conditions, and
must not issue unsafe combinations of train orders.' While the
yardmaster was negligent, the record shows claimant was also
responsibile (sic) for the improper movement of the restricted car
and must assume his share of responsibility. Therefore the
discipline was not arbitrary and capricious."
But the Organization did not refute Carrier's statements.
Accordingly, the Majority's findings in Award 27596 reading:
"Rules applicable to Train Dispatchers are sufficiently
precise to have required the Claimant to initiate action to insure
that the train would operate at the required restricted speed."
are well founded. The Award is valid.
J. E. Yost
~,/y
M. W Finge rut
R. L. Hick
M. C. Lesnik
P. V. Varga