Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26904
 THIRD DIVISION Docket No. SG-26152
 88-3-84-3-579
 The Third Division consisted of the regular members and in
 addition Referee Lamont E. Stallworth when award was rendered.

 (Brotherhood of Railroad Signalmen
 PARTIES TO DISPUTE:
 (Seaboard System Railroad

(a) Carrier failed to provide sufficient evidence to support its suspension of Signal Maintainer H. E. Winestead who was disciplined by being suspended for thirty days from December 16, 1983 to January 14, 1984.

 (b) Carrier should be required to clear Mr. Winestead of all charges, that his personnel record be cleared of the incident and that he be reimbursed for all pay and benefits lost during his suspension. Carrier file 15-55 (84-8)R."

 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.

Claimant has been employed by the Carrier since 1974, beginning as an Assistant Signalman. At the time this claim arose, he was classified as a Signal Maintainer and assigned to a territory including Cave City, Kentucky.

 At approximately 8:00 A.M. on October 22, 1983, while proceeding southbound on the Carrier's tracks, Train /1289 entered the siding in the vicinity of Cave City. As the train approached the siding, all indications were that the electric switch controlling traffic at the north end of the siding was properly thrown to divert the train onto the siding. Twelve cars of Train #289 proceeded onto the siding, but the rear wheels of the thirteenth car split the switch. As a result, that car and the two cars behind it derailed.
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 Immediately after the derailment, Carrier personnel went to the scene to investigate. Claimant, who was responsible for maintenance of the switch, was summoned to the scene. From their inspection at the scene, the Carrier's officials determined that the switch at the north end of the siding was out of adjustment, so that the switch points were gapped when thrown in the direction to divert southbound traffic onto the siding. They further determined that the gapping of the switch points had caused or contributed to the derailment of Train /I289.

 By letter dated October 26, 1983, Claimant was instructed to report to the Carrier's offices at Louisville, Kentucky on November 8, 1983:

Mr. G. F. Vaughn, Trainmaster, presided at that investigation. Mr. R. W. Smith, the Carrier's Signal Supervisor, gave evidence concerning his inspection of the site and the investigation was recessed to November 28, 1983, in order to obtain the testimony of Mr. R. J. Boles the switch in the company of Claimant before Smith arrived. Claimant also gave his evidence on November 28.

 After the investigation was closed, the Carrier determined that Claimant had failed to properly contributed to the derailment. Claimant was so informed in a letter from the Carrier's Assistant Superintendent dated and acknowledged December 5, 1983. That letter assessed Claimant a suspension of 30 actual days, to be served from December 16, 1983 to January 14, 1984. The organization timely appealed this suspension, the dispute was progressed between the parties in the proper manner without resolution, and it now comes before this Board.

 The Organization claims that the Carrier conducted an unfair and prejudicial investigation leading to Claimant's suspension, and that the Carrier failed in that investigation to satisfy its burden of proving that Claimant's suspension was warranted. Under all the circumstances disclosed in the record, the Board must reject these contentions.

 The Organization makes three assertions in support of its claim that the investigation was unfair and prejudicial.

 First, the Organization argues that the Carrier had improperly prejudged Claimant's fault before Organization, this is evidenced by the phrasing of the Carrier's October 26, 1983 notice of investigation, which stated that the purpose of the Hearing was
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 Page 3 Docket No. SG-26152
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 to determine Claimant's responsibility "in connection with (the) power operated switch . . . bei the Carrier had predetermined that the switch in fact had been out of adjustment causing the acciden since he was indisputably responsible for the adjustment of all switches in his territory.

 However, Rule 55 of the controlling Agreement provides that the Carrier's notice of investigation in such an instance must advise the subject employee "of the charge or charges against him," so that he will know what he must defend against. Consequently, a claim of prejudgment cannot be based merely on the fact that the Carrier's notice levels certain accusations. Moreover, the notice in this case expressed that the investigation would determine Claimant's "responsibility, if any. As the Carrier points out, a claim that an employee's fault has been prejudged before the investigation into the circumstances must be based on some substantive and credible evidence, and not merely on ce See, Third Division Award 23344. There is simply no such evidence in this case.

 Second, the Organization contends that the investigation prejudiced Claimant's interests when it was recessed from November 8, 1983 to November 28, 1983, in order to obtain the attendance and testimony of R. J. Boles. The Organization suggests that this recess afforded the Carrier the opportunity to school Boles so that his testimony would support the Carrier's position.

 At the time the Hearing was recessed, the Organization asked the Hearing Officer to prevent the transcript which had been made up to that point from being reviewed by other Carrier officials before the Hearing resumed. The Hearing Officer stated that he would do so. There is again no evidence that the continuance of the Hearing in fact resulted in any improprieties or in any way prejudiced Claimant's rights. The evidence gathered at the initial session indicated that Boles was a material witness, so that the interests of fairness and thoroughness of the investigation were served by procuring his testimony. Claimant himself did not testify until after the investigation was resumed on November 28. Hence, the Board must reject this assertion of prejudice as well.

 Third, the Organization argues that the Carrier should have preserved and produced tape recordings of all communications occurring on the morning of the derailment involving the Carrier's dispatcher at Louisville who controlled the switch in question. But the Carrier normally preserves such tapes for only 30 days after the dates they are recorded, and these tapes were not requested by the Organization until the Hearing on November 28, 1983, which was more than 30 days after the derailment on October 22. Consequently, when the Organization asked for them, the Carrier reported that the tapes from the date of the derailment no longer existed.
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 The Organization suggests that the Carrier's failure on its own initiative to preserve the tapes from the date of the derailment supports an inference that they might disclose evidence harmful to the Carrier's position as to Claimant's fault in the incident. However, the conduct of the Louisville dispatcher in this in so it is not obviously suspicious that the tapes were not preserved. In addition, the Organization fails to specify what important evidence the tapes might have contained. Absent evidence that the tapes had important relevance to this dispute, the Board cannot infer anything from their routine destruction.

 In support of its contention that the Carrier failed to establish Claimant's fault justifying his 30-day suspension, the Organization observes that the evidence against him is entirely circumstantial. There were no eyewitnesses to the derailme derailment resulted from an improper adjustment to the switch in question.

 However, circumstantial evidence can be sufficient to determine the cause of a derailment and whether a particular employee was at least contributorily at fault. Third be determined by an after-the-fact investigation if there is evidence to support the Hearing Officer's conclusions. See, Third Division Awards 17163, 17492.

 The evidence in this case establishes that on October 18, 1983, four days before the derailment, the Carrier's Louisville dispatcher reported that the switch in question would not give a proper indication on his panel when it was thrown in the direction which would allow southbound traffic onto the Cave City siding. Accordingly, Claimant was called to make repairs to the switch, and reported that he did so on that date. Claimant testified that he had to increase the switch's pressure in the reverse direction to enable it to properly lock up in that dir that, after he adjusted the switch on October 18, he asked the dispatcher to throw it in both directions and that it operated correctly.

 After those repairs, the next train to pass over the switch was a northbound freight train on October 21. That train passed through without incident. There is testimony, however, that as it passed, the indicator lights pertaining to the switch blinked at the dispatcher's location, but that this fact was not then reported by the dispatcher.

 The next train to pass over the switch was Train 1/289, southbound, on October 22. As Train II289 approached the switch, the dispatcher's lights indicated the switch was properly thrown to divert the train onto the siding. As the train proceeded over the switch, the lights began to blink, indicating trouble with the switch, and the dispatcher immediately reported this to R. J. Boles, Division Engineer. Less than five minutes later, before Boles could do anything about it, the train was reported to have derailed.
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Boles immediately went to the site of the derailment and met Claimant there. The train had derailed at the location of the switch at the north end of the siding. Boles and Claimant together inspected the switch, and both testified they found the switch points "gapped," i.e., not properly closed. Boles estimated the gap as one-half inch in width. Claimant testified that this gapping resulted from there being insufficient pressure from the switch motor in that direction, the same problem which he had found four days earlier.

 R. W. Smith, the Carrier's Signal Supervisor, arrived at the site within two hours. He observed the same gapping of the switch points as did Boles and Claimant. Smith also observed, as corroborated by Boles and Claimant, that one of the swit result of having been struck by the flange of one of the train's wheels. The first 12 cars of Train 8289 had successfully passed over the switch and moved onto the siding. The front (southernmost) wheels of the 13th car had moved onto the siding, but the rear (northernmost) wheels had split the switch and continued along the main line. This, according to Smith, initiated the derailment.

 Smith found that one wheel on the rear truck of the 13th car bore evidence of having struck the switch point. According to Smith, this occurred because the switch point was gapped open, and it permitted the wheel to proceed behind the switch po wheels of the 13th car derailed a short distance past the switch, and not in the switch itself.

 Claimant's testimony did not take issue with any of these findings, except the conclusion of Smith and Boles that the switch points were gapped before the train entered the switch. The Organization speculates that the gapped condition of the switch might have resulted from damage to the switch caused by the derailment itself. But Smith and Boles stated categorically that there was no evidence to support this supposition. Claimant agreed that nothing about the switch was broken after the derailment. The evidence is uncontradicted that the cars did not derail in the switch, but beyond it. Claimant testified that a basket rod operating the switch appeared bent after the derailment, but he acknowledged that this would occur if a gapped switch point were struck by a wheel, as the evidence indicates happened. The circumstances of the derailmen not that it occurred because of the derailment.

 Claimant also noted that the track bed was graded and/or resurfaced in the vicinity of the switch after the derailment. He appears to suggest that this might have been done to correct an instability of the surface under the switch, which might have permitted it to rock as the train passed over, thus causing the derailment. However, Boles testified that the track bed was resurfaced beyond the switch, merely to repair disturbances caused by the derailed cars.
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 There is simply no evidence to indicate that the derailment resulted from causes other than those identified by the Carrier's officials. All the evidence is consistent with and supports the Carrier's conclusions. From all indications, the derailment resulted from a misalignment of the switch, which had been reported out of adjustment and presumably repaired by Claimant just four days before the incident. The circumstantial evidence is very substantial that Claimant failed
Where misfeasance by an employe is properly established by the Carrier, as it has been here, the Board may not substitute its judgment for the Carrier's in the matter of the appropriate discipline to be assessed, unless the penalty imposed is so harsh as to be vindictive or in bad faith. Third Division Awards 11324, 9046. In this case, a suspension of 30 days does not appear manifestly unreasonable, where the employee's negligence has contributed to a serious accident. This claim must therefore be denied.




                          By Order of Third Division


Attest: _
        Nancy J er - Executive Secretary


Dated at Chicago, Illinois, this 17th day of March 1988.