Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 32051
Docket No. MW-32725
97-3-96-3-28
The Third Division consisted of the regular members and in addition Referee
Hyman Cohen when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company
( (Eastern Lines)
STATEMENT OF CLAIM:
"Claim of the System Committee of the Brotherhood that:
(1) The thirty-one (31) days of suspension imposed upon Machine
Operator Helper J. T. Finch for alleged violation of Rules 16.1(M)
and 16.4(M) 2 on November 21, 1994 was arbitrary, capricious, on
the basis of unproven charges and in violation of the Agreement
(System File MW-95-49/MW D95-5 SPE).
(2) The Agreement was further violated when the Carrier failed to give
written reasons for the denial of the claim as required by the
Agreement.
(3) As a consequence of the violations referred to in Parts (1) and/or (2)
above, the Claimant's record shall be cleared of the charges leveled
against him and he shall be compensated for all wage loss suffered
and properly credited for all benefits in connection therewith."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
Form 1 Award No. 32051
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The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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 were given due notice of hearing thereon.
Claimant J. T. Finch has 15 years of service with the Carrier. He was assessed
a 30 day suspension for occupying track without authority.
On November 21, 1994, while working as a Machine Operator Helper on the 164
RD brush cutter, Claimant Finch was assigned to cut and clear brush from the right of
way. At some time during the morning of November 21, Claimant Finch requested
working time in the Schriever and Ursa blocks from SP Dispatcher 24.
A track block is a part of the track control system. It is a segment of track which
begins at a switch or signal which extends to the next switch or signal. The block or
segment of track is designated by name or location and is used by employees to obtain
time to work within the confines of the blocks or to permit employees and/or equipment
to travel through the blocks without jeopardizing the safety of the employees, or
jeopardizing the property or equipment.
The only relevant evidence in the record is a transcript of the conversation
between Claimant Finch and SP Dispatcher 24 which in relevant part, is as follows:
"Finch: * * I would like to request some working time in the
Schriever and Ursa blocks.
* * *
Dispatcher: * * I'll give you the Schriever and Ursa Block until
12:30, over.
Finch: * * * I understand that I've been granted. * * * Maintenance
of Way in two blocks Schriever and Ursa until 12:30 p.m.
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97-3-96-3-28
Dispatcher: * * * I just wanted to understand that I'll give you
Schriever and Ursa till 1:40-til 12:45. Let me give it to you. 164 RD
Machine Operator Finch after the arrival
of
the 7273 East, joint with
trains and Maintenance
of
Way, I'm granting you working time in two
blocks Schriever and Racelaud until 12:45--over. 164 RD did you copy?
(Emphasis added).
Finch: * * I understand I have been granted joint working time
joint with trains and other maintenance
of
way after the arrival
of
7273
East in two blocks Schriever and Ursa until 12:30 p.m. * *.
Dispatcher: Until 12:45 p.m., over.
Finch: That's 12:45 p.m. * *.
Dispatcher: 164 RD that is correct. And I need for you to be clear
and released at that time.
Finch: * * I will be clear at 12:45.
* * *
Finch: 164 RD with Machine Operator Finch releasing two blocks
Ursa and Schriever, over.
* * *
Dispatcher: What blocks are you releasing, over?
Finch: * * 164 RD Machine Operator Finch releasing two blocks
Ursa and Schriever, over.
Dispatcher: No, sir. You released Ursa a long time ago.
* * *
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No. 32051
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NIW-32725
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Dispatcher: * * Are you releasing two blocks Schriever and
Raceland?
Finch: Yes * * that is correct.
Dispatcher: You did not say Schriever and Raceland, you said
Schriever and Ursa. So let's try it one more time please, over.
Finch: * * Finch releasing blocks Schriever and Ursa, over.
Dispatcher: I thought you were releasing Schriever and Raceland.
* * *
Dispatcher: * * Are you releasing the Schriever and Raceland,
over.
Finch:
No, ° * Schriever
and Ursa, over.
* * *
Dispatcher: * * When are you going to be releasing that Raceland
block?
Finch: You never gave me the Raceland block--you gave
281
the
Raceland block, over.
Dispatcher: That is not correct * * at
12:37
a.m. I gave you the
Raceland block also. I gave you an extension in the Schriever block and
the Raceland block at
12:37
a.m. * *.
* * *
Dispatcher: * * do you need the Raceland block, over
Finch: No.
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Dispatcher: * * did you copy the information down on the Raceland
block?
Finch: No. * * I copied down Ursa and Schriever, that's what I
asked you for. * *"
The record establishes that neither Claimant Finch nor SP Dispatcher 24 were
listening to each other. Finch sought approval for working time in the Schriever and
Ursa blocks from SP Dispatcher 24. After SP Dispatcher 24 stated that she was giving
Claimant Finch time in the Schriever and Ursa blocks, she said that she was granting
him time "until 12:45" in the "Schriever and Raceland" blocks. Although SP
Dispatcher 24 asked Claimant Finch "did you copy" he said that he understood he had
"been granted joint working time * * in two blocks, Schriever and Ursa until 12:30 p.m.
* *." The Dispatcher then stated "until 12:45 p.m. * *."
Thus, the Dispatcher granted authorization for the Schriever and Raceland blocks
which were not requested by Claimant Finch. When Claimant Finch stated "Schriever
and Ursa until 12:30 p.m.", the Dispatcher's response was "until 11:45 p.m." Claimant
Finch reasonably but mistakenly assumed that the Dispatcher's response of "until
12:45" was approval of his statement "Schriever and Ursa until 12:30 p.m."
The Board is of the view that both Claimant and SP Dispatcher 24 were negligent
in failing to listen to each other. SP Dispatcher 24 shares equal responsibility with
Claimant Finch in causing Claimant Finch to occupy track without authority. As a
result of their negligence, they jeopardized the safety of other employees and created the
potential for serious property damage. Accordingly, it is the judgment of the Board,
that Claimant Finch is not to receive any greater discipline than the discipline, if any,
that was imposed against SP Dispatcher 24.
AWARD
Claim sustained in accordance with the Findings.
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URDEB
This Board, after consideration of the dispute identified above, hereby orders that
au award favorable to the Claimant(s) be made. The Carrier is ordered to make the
Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 10th day of June 1997.