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.
Claimant is a Welder. On October 19, 1995, he was assigned to welding rail joints near White City, Kansas. In that connection, he was required to obtain permission to occupy a designated section of track, referred to by the parties as "track and time," between the east and west switches at White City, Kansas, while trains operated on the same rail. After occupying the main track between East White City and West White City for approximately 30 minutes pursuant to the permission he believed he had received, Claimant contacted the Dispatcher to release his authority. In doing so, he learned that in fact he had not been given authority between the two points sought, but elsewhere. Following the Investigation held November 21, 1995, Claimant was assessed a ten day disciplinary suspension for violation of the following Carrier Rules governing track and time.
The record reflects that when Claimant called for authority to occupy the main track between East White City and West White City, Kansas, the Train Dispatcher misunderstood his request and gave verbal permission to occupy track between White City and Dwight, Kansas. As required by Rule 10.3.4, Claimant repeated back to her that he had received track and time authority between East White City and West White City and made notation in his track authority record to that effect. In the process of releasing that permission around 11:05 A.M. that morning, the Dispatcher informed Claimant that she had protected him between East White City and Dwight. Following Carrier's Investigation. it imposed the ten day disciplinary suspension now before this Board for consideration.
It is Carrier's position that by occupying the main track for 30 minutes without authority, Claimant placed himself and others at significant risk. The Organization asserts several procedural objections relating to Claimant's right to an impartial Investigation: on the merits it maintains that the Dispatcher was primarily responsible for the mix-up.
The Board has carefully reviewed the Organization's procedural claims. While it fully credits the general proposition that Claimant and his representatives may not be unfairly restricted in developing their case at Hearing, in this instance we find no irregularities that can be fairly said to have had any material effect on the outcome of Claimant's Investigation. Specifically, we conclude that Carrier did furnish the Form 1 Award No. 32755
Organization a copy of the transcript in accordance with the Agreement; that Carrier's typographical error in the charges assessed in no way interfered with Claimant's ability to prepare his defense or otherwise resulted in prejudice to him; that by producing tapes of the radio transmissions between Claimant and the Dispatcher without the presence of the Dispatcher, Carrier committed no material error in the absence of serious conflicts in opposing evidence.
The transcript of Claimant's Investigation reveals that Claimant requested "track and time Authority No. 12117, main track, East White City to West White City." Dispatcher Erickson, mistaking the request, verbally authorized time between "East White City and Dwight." Claimant then repeated "East White City and West White City," and Erickson said "That is correct."
A clearer case of mutual mistake could hardly be constructed. Claimant did not listen when Dispatcher Erickson cleared him for "East White City and Dwight." Dispatcher Erickson did not listen when Claimant then repeated "East White City and West White City." Two human errors were made, bilateral errors running together to make mischief.
For her role in this incident, the Carrier's Dispatcher was suspended without pay for five days. Claimant received ten days. The serious nature of these mistakes is obvious; what is far less clear is Carrier's basis for distinguishing the severity of the two offenses. The Board finds no record evidence to support such disparate treatment. Absent issues of prior progressive discipline, mitigating or extenuating circumstances, or other factors not in evidence, no principled reason appears on this record for assessing Claimant a penalty twice as much as the other party responsible for the events that transpired. Accordingly, this Board is compelled to conclude that there is some merit in the Organization's claim of arbitrariness, and sustains the claim in part. The discipline assessed Claimant shall be reduced to a five day suspension.
This Board, after consideration of the dispute identified above, hereby orders that an 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.