(Brotherhood of Maintenance of Way Employes PARTIES TO DISC: (The Chesapeake and Ohio Railway Company ( (Southern Region)

(1) The disciplinary demotion of Equipment Operator T. H. Music, Jr., his disqualification as equipment operator and the suspension of ten (10) days imposed upon him was excessive and unwarranted (System File C-TC-297/YZ-1636).

 (2) Mr. T. H. Music, Jr. be reinstated as an equipment operator with seniority as such unimpaired, his record be cleared, he be paid for all time lost and be paid the difference between what he was paid at the trackman's rate and what he should have been paid at the equipment operator's rate beginning with the effective date of his suspension."

 OPINION OF BOARD: Claimant T. H. Music, Jr., Equipment Operator,
 assigned to and operating Ditcher D-35, on June 28,
 1976, failed to lower ditcher boom for safe passage through a tunnel
 at work location, resulting in damage to the ditcher. At investigation
 held to determine facts relating to the accident, Claimant admitted
 responsibility in his failure to properly lower the ditcher boom for
 safe passage on the return trip through the tunnel when additional track
 time was granted to permit unloading of material. Carrier assessed
 discipline of suspension of ten (10) days and disqualified Claimant as
 Equipment Operator.

 The record does not support a conclusion that Claimant exhibited a deliberate disregard for safety or that his conduct constituted gross negligence. In short, we feel that there are mitigating circumstances present. It is the finding of this Board that the discipline assessed in this case has now served its purpose and that Claimant should be reinstated as an Equipment Operator with seniority and all other rights unimpaired, bat without compensation for wages lost as a result of the disqualification.
 Award Number 22250
 Docket Number bbl-22259

 Page 2

That the parties waived oral hearing;

 That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

 That the discipline was excessive.

 A W A R D
Claim sustained to the extent indicated in the Opinion.

ATTEST: !5&4162~



Dated at Chicago, Illinois, this 14th

 NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Third Division

 day of December 1978.