PUBLIC
PARTIES TO
DISPUTE:
Brotherhood of Maintenance of Way Employees
and
Chicago and North Western Transportation Company
Claim of the System Committee of the Brotherhood that:
(I) The ten (10j day suspension of Assistant Foreman G.A. Sanchez,
effective May 2, 1978, was without just anti sufficient cause
and unsupported by any evidence educed. (System File D-11-17-260
and D-11-17-261)
The fifteen MI5) day deferred suspension of Foreman J. V.
Rodriguez is without just and sufficient cause and wholly
unwarranted.
(3j Assistant Foreman Sanchez now be compensated for all time lost
as a result of the discipline referred to in Part one (lj of
this claim and his record cleared of the charges with all rights
unimpaired,
(4a Foreman Rodriguez to have discipline referred to in Part two
of this claim stricken from his record.
OPINION OF BOARD:
Claimants were employed as Foreman and Assistant Foreman of a Section
Gang at Lake Street Interlocking, just outside the Chicago Passenger Terminal,
As part of their assigned duties both employees have responsibility to make
inspections of track as directed by the Roadmaster and to report or repair
unsafe conditions. On April 10, 1978, during the morning rush hour, Suburban
Train 312 was operating across the Lake Street Operating Plant on Track 6
into the Passenger Terminal. The cars of the train passed unscathed, but as
2
the pusher locomotive passed a certain point the rails spread and the locomotive dropped between the rails onto the ground.
Carrier cited Claimants following the accident and following investigation imposed suspensions without pay on the basis of the following charge:
Your responsibility, if any, in failure to
properly inspect, report, and/or repair
Track #6, Lake Street Interlocking, thereby
causing derailment to suburban train. #312,
unit 529 on April 10, 1978 at approximately
Investigation of the hearing transcripts persuades us that Carrier has
failed to carry its burden of proof that the Claimants had responsibility in
the accident. Tile record indicates that Claimant Rodriguez inspected the
track in question on April 3, 1978 and found the gauge within limits. Carrier
argues circumstantially from the subsequent spreading of the track that the
gauge could not have been correct. However, speculation is not evidence.
Moreover, it is unexplained on this record how many other trains, including
all of the cars on Train 312 passed the point before the locomotive fell
through, if indeed Rodriguez had overlooked proper gauging of the track. The
record also indicates that a full train inspection in 1975 concluded with
recommendations that Track 6 should be extensively reworked with new ties
and ballast; but that job had still not been done as of 197$.
The circumstan-
tial evidence available on this record
does
not support a conclusion of
Claimants' negligence
as
a proximate cause for the accident. Finally, Carrier
contends that Claimants were culpable for failure to inspect Track 6 with
greater frequency. However, we find on this retard no objective evidence
concerning-instructions or normal work requirements for frequency of inspection. So far as the record shows the Claimants are directed by Roadmasters
regarding track inspection. On the basis of all of the foregoing, we find
that Carrier has not produced substantial probative evidence on this record
to supports its conclusion that the Claimants were culpable in the accident.
Public Law Board No. 1844, upon the whole record and all of the evidence,
finds and holds as follows:
1. that the Carrier and Employee involved in this dispute are, respectively, Carrier and Employee within the meaning of the Railway Labor Act;
2. that the Board has jurisdiction over the dispute involved herein;
and
H. G. Harper, Emp. yee Member
3. that the Agreement was violated.
Claim sustained. Carrier is to comply with this Award
within thirty (30) days of issuance.
Dana E. Eis en, CrmanL~
R. til. Schmiege, Gafrier
em