(1) The disciplinary disqualification for six (6) months of Track Foreman F. W. Rich, for alleged responsibility for the derailment of Train S534-03 at or near Mile Post 83.4 on the Main Line Subdivision, damages sustained to equipment and track resulting therefrom on June 5, 1991 and for alleged violation of CSX Transportation Procedures Manual Rule 704 for allegedly fouling track with a track jack without written authority of the train dispatcher, was without just and sufficient cause and on the basis of unproven charges [System File 6(25) (91)/12 (91-1008) LNR).

(2) The Claimant's record shall be cleared of this incident and he shall be paid for any time lost."

Claimant, with over 25 years of unblemished service, was assigned as a Track Foreman on June 5, 1991. A train derailed 35 cars near where Claimant and his gang were working. On June 10, 1991, Claimant was requested to attend an Investigation on June 13, 1991, wherein he was:

" ..charged with responsibility in connection with derailment and damages sustained to equipment and track, resulting from the derailment of 5534-03, on Mainline Subdivision, at or near MP 83.4, at or about 1250 hours, on June 5, 1991."

The Investigation was held as scheduled. Thereafter, Claimant was found responsible for the derailment and was restricted from working as a Foreman for six months.

A review of the transcript shows that at the time of the Investigation, the cause of the derailment had not been determined. The Trainmaster testified as follows:

"Q80: Mr. Eatmon, has the final updated Incident/Accident Report been finalized yet. Has a cause been assigned to the derailment.

A80: No, to my knowledge it has not.

Q81: The final report to your knowledge

has it been turned in on the

derailment and would include the

cause, do you have knowledge of it.

A81: I don't know if the official cause

has been reported, or I don't know

if the actual report has been made

of the official cause yet."

In the letter of discipline dated July 12, 1991, the Division Engineer wrote:

"It has been determined that you had responsibility in connection with derailment and damages sustained to equipment and track resulting from the derailment of 5534-03, on the Mainline Subdivision, at or near MP 83.4, at or about 1250 hours, on June 5, 1991. When Train 5534-03 derailed at or near MP 83.4 where your gang disturbed the track and you

The claimant was charged with his responsibility for the derailment. To this Board, if you do not know the cause of the derailment, it is extremely difficult to assess blame. As far as this Board is concerned, we have no knowledge of the cause.

While it may be true that Claimant violated CSX Rules on the day in question, he was not charged with violating Rules. Had the Investigation developed that these Rule violations were the cause of the derailment the discipline would have been proper, in fact lenient. This was not done. We will sustain the claim.

A W A R D