PUBLIC LAW BOARD No. 7263
AWARD NO. 22
CASE NO. 22
PARTI ES TO
THE DISP UTE :
Brotherhood of Locomoti ve Engineers and Trainmen
(Northern Lines )
vs .
CSX Transportation, Inc.
ARBITRATOR:
Gerald E. Wallin
DECISION:
Claim sustained.
STATEMENT OF CLAIM:
"Claim on behalfofJ. A. Thomas, ID 768400, for reinstatement with seniority rights
unimpaired and reimbursement for all time , wages and benefits lost , pursuant to
Section F(4) of the on-property discipline rule , as a result being found culpable of
violating CSX Transportation Operating Rule 104(C). Discipline assessed in this
matter was fifteen ( 15) days actual suspension. "
FINDINGS OF TH E BOARD :
The Board, upon the whole record and on the evidence, finds that the parties herein are
Carrier and Employees within the meaning of the Railway Labor Act, as amended; that this Board
is duly constituted by agreement of the parties; that the Board has jurisdiction over the dispute, and
that the parties were given due notice of the hearing.
Claimant was assessed the discipline noted above for failing " ... to ascertain that the route
was lined for your movement, resulting in the derailment of ..." another train, SP-33, at
approximately 00 15 hours on February 15, 2008 at the Broad Street crossover switch in the Carrier's
yard operation in Philadelphia. At the time of the incident, claimant had some thirty years ofservice
as an engineer. The record herein does not portra y his work record as having any prior discipline.
Our review of the record compels us to find that the Carrier has failed to sustain its burden
of proof to establish the rule violation in question. This finding results from certain facts that are
clear from the record. First, the alleged cause of the derailment was given by the Carrier's Terminal
Trainmaster. However, on page 16 of the transcript of the investigation, this witness explicitly
disqualified himself from being able to establish the cause. Indeed, he stated that he did not
determine the cause himself. Instead, he related how it was determined five days after the incident
by another Carrier official who was not present at the investigation. In addition, the Terminal
Trainmaster described how he suggested a different set of causative factors which did not involve
misconduct. The record provides no explanation for why his suggested scenario was rejected in
Award No. 22
Page 2
Public Law Board No. 7263
favor of a misconduct scenario. As a result, the record contains no first-hand testimony to explain
why the derailment occurred.
Second, the record does not explain how or why two other train movements went through
the same switch in the same direction after claimant's train and before the SP-33 yet those crews
were not similarly charged with misconduct.
Third , locomotive downloads were taken from claimant's engine as well as that ofthe SP-33 .
Neither was introduced in evidence by the Carrier. Finally, there was camera video captured by
claimant's locomotive as it passed through the switch in question. Once again, the Carrier did not
introduce this evidence. It is a well-settled principle of evidentiary analysis that when the Carrier
has relevant evidence in its sole control and chooses not to introduce it without a proper explanation,
the Organization and claimant are entitled to have review Boards like this one draw the adverse
inference that the evidence would have been inconsistent with the Carrier's position.
Given the state of the record thus described, the claim must be sustained in its entirety. The
Carrier is directed to make claimant whole for all losses resulting from the unsubstantiated
disciplinary suspension and to expunge all references to this incident from his work records .
AWARD :
The Claim is sustained. The Carrier is directed to comply with these Findings and Award
within thirty (30) days of the date shown below.
6;£d/
rald E. Wallin, Chairman
and Neutral Member
R. Hlel ,
Carrier Member
DATE:
/: '1-/0
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