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

(1) The disqualification of L. G. Ward as an Equipment operator was without just and sufficient cause and was capriciously imposed (System File C(So)-D-344/NG-1709).

 (2) Claimant L. G. Ward's seniority as a machine operator shall be restored unimpaired and he shall be paid for all time lost from September 24, 1976 up to the date he is restored at the machine operator's rate."

 OPINION OF BOARD: On September 24, 1976, claimant was employed as a
 machine operator. In that capacity, he was
 assigned to move a Tie Shearer machine over the main track as the lead
 machine in a convoy of machines being moved between Woody Station and
 Meadow Bridge on Carrier's Sewell Valley sub-division of the Hinton
 Division. During this main track movement, claimant lost control of
 his machine after which it ran unattended for approximately five (5)
 miles where it collided with a multiple tamper machine operating in the
 vicinity of Claypool, West Virginia, in3vring the two (2) employes who
 were working with the tamper and destroying both pieces of equipment.

 Claimant was subsequently required to attend a hearing on October 7, 1976 in connection with this incident, after which he was disciplined by being disqualified as an equipment operator.

 The testimony in the hearing record, including claimant's own testimony, clearly establishes that, by his actions and/or lack of action, he was primarily responsible for the machine "run-away" and resultant collision.

 In addition, we have given serious consieeration to our function as an appellate tribunal in situations of this kind. And, based upon the total fact situation which exists in this case, including


the fact that there is no evidence in the record of any prior derelictions of duty attributable to claimant, we do not feel that total and permanent disqualification as equipment operator is warranted.

 Therefore, while we are denting the claim as presented in this case, we nonetheless rule that claimant should be afforded the opportunity to make application for equipment operator positions in the future, subject, of course, to his ability to qualify on the particular piece of equipment, and thereby reestablish equipment operator standing.

        FILINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        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 Agreement was not violated.


                    A W A R D


        Claim disposed of as per Opinion of Board.


                        HATICHAI. RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST: ,
 7Executive Secretary
Dated at Chicago, Illinois, this 16th day of October 1979.