On June 14, 1996 the Claimant was inspecting track, following Train Q317. At Milepost 213.8 he noticed a 2 1/4 inch surface deviation. He also noticed fresh wheel marks on the ties, indicating that there may have been a derailment. He radioed the Engineer to stop the train. Inspection revealed that one car had derailed at Milepost 213.7.

On June 20, the Carrier instructed the Claimant to attend an Investigation on June 28, 1996. The notice charged him with failure to comply with Bulletin R-2 and EDMR-2002. The Investigation was held, as scheduled. On July 17, 1996, Carrier notified the Claimant that he had been found guilty of the charge and was suspended for ten days.

This dispute turns on whether the Carrier proved the Claimant's responsibility by substantial evidence. The fact of a derailment does not, by itself, establish Claimant's culpability. The Carrier had the burden to prove by substantial evidence that there was a track defect that the Claimant should have discovered prior to the derailment.

The record contains no evidence of a track defect that the Claimant failed to discover prior to the derailment. The derailment itself is not evidence of a defect that the Claimant should have discovered in his prior inspection of that portion of the track. The derailment occurred at Milepost 213.7, and the surface defect occurred at Milepost 213.8. The train whose car derailed was traveling toward Milepost 213.8. In other words, the car derailed prior to hitting the defective track.

Furthermore, the record established that the area around the track was prone to track problems due to settling of the ground beneath the tracks. The Roadmaster testified that it was possible that the track area could "be OK for normal speed one day, and out of service conditions the next day." On the record developed, one may speculate that there was a defect that the Claimant should have discovered during a prior inspection, but there is no proof of such a defect.