For 1







The Third Division consisted of the regular members an in addition 'Referee Joan Parker when award was rendered.

 (Brotherhood of Maintenance of Way Employee TIES T® DISPUTE:
              (CSX Transportation, Inc.


STATEMENT OF ALAI

 "Claim of the System Committee of the Brotherhood that:

    (1), The discipline imposed upon r. . . Cummins, Jr: [ten (lob days actual suspension] for alleged failure to perform duties as basic track foreman on Monday, .August 1, 2042 while working on the Berkshire Sub at Chester Ward near Mile Post QB 12.0 (Track ) t approximately 1400 hours allegedly left a switch lined improperly resulting in the derailment of two (2) cars on Train 73020 was arbitrary, capricious, on the basis of unproven charges an in violation of the Agreement [Carrier's File 12 (02-0850) CSC].


(2) s a consequence of the violation referred to in Part (1) above,
 the discipline shall a removed fro r. . . Cum ings, Jr.
 record and he shall a compensated for all lost time."

 FINDINGS:
      The Third Division of the Adjustment oar, a the whole record n all the

evidence, s that:
 For 1 ward0.3727
 Page Docket o. -3804
                                              04----494


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 hoard has jurisdiction over the dispute involved herein.

      Parties to said dispute were given due notice of hearing thereon.


The Claimant, a Track Foreman with more than 2years' seniority, as the employee in charge ("ETC") at Chester Yard in Western Massachusetts, on August 19, 2002. t that tine, the Claimant's duties included drilling and lagging oven to - Milepost 117. .


Track 4 at Chester Yard had been spiked and locked for about one year,
 during which time it had been used for ''Maintenance of ay equipment aid had
 been out of service for transportation. Can August 19, 2002 the Claimant as
 responsible for piloting certain equipment, which had been tied up on Track for

week or o, to Milepost 117. While the Claimant was at Milepost 117, others had moved the equipment to the derail at the end of the yard. When he arrived t Chester Yard, he unlocked the main line switch and the derail; enabling the equipment to moved onto the main line and then locked them again.


When asked at the Fearing whether he had left the switch to Track improperly lined, the Claimant replied that a did not know:

      "I fight have but I didn't look at it. I just didn't think to back t check to see if it was locked. I just did the main line and the derail. That's where the equipment sitting when it pulled into Chester Yard I got the out a of them down an got them to 123 and I put them in Huntington Yard were the tractor trailer s waiting to load them.."


      T days later, , on August 21, 2002 two loaded gondola cars derailed on the

west switch, which s spike and locked for Track 4- The west switch
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 private lock the a for which only a fe people, including the Claimant and other Foremen had. y

letter dated September 2, the Carrier notified the Claimant of n Investigation on November 13, 2002 to determine the facts relating to his alleged involvement in leaving a switch lined improperly resulting in the derailment of two cars in violation of NOC Operating Rule, General Rules , , S and pule 132. Following the Hearing held on November 13, the Carrier sent the Claimant a letter, dated November 7' 2002 advising him that he would be issued a ten-day actual suspension for leaving a switch lined improperly resulting in the derailment of two cars. Following the Organization's appeal of the discipline, the Carver denied the appeal.


The Organization contends that the Carrier, which failed to resent any firsthand evidence that the Claimant was remiss in his duties, s unable to meet its burden of proof that discipline was warranted. The Claimant's own testimony, however, showed that a failed to carry out his duties, as required of the EIC. Thus, the Claimant candidly testified, in resonse to question whether he had left the switch to Track 4 improperly lined:


      "I might have but I didn't look t it. I just didn't thin t0 back to check t0 see if it was locked. I just id the main line and the derail."


Because it as the Claimant's responsibility s EIC to ensure that Track
 had been locked, his admitted failure to o was in derogation his s duty to do so,.
 resulting in the derailment of t rail cars t days later.

more persuasive is the Organization's rgume that employees i addition to the Claimant a access to te key to te switch in question. a fact

the matter is that the Claimant as the EIC failed check to see that Track 4 a been locked. Likewise, the fact that other employees might have contributed t0 the derailment throw their negligence does not diminish the Claimant's responsibility

to ave ensured that Track as lockedn line for Track .
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Moreover, because of the seriousness of the accident resulting from the Claimant's failure to carry out his responsibilities, the Board ns tat a ten-day actual suspension teas not unduly harsh or excessive.


                        AWARD


      Claim denied.


                          OEli


This Board, after consideration of the dispute identified above, hereby orders that an ward favorable to the Claimants) not be made.


                      NATIONAL L ADJUSTMENT

                        BOARD y Order of Third Division


Dated at Chicago, Illinois, this 5th aof November.