(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (The Western Pacific Railroad Company

(1) The Carrier's disqualification of Machine Operator T. C. Marin as a tamper operator shortly after January 31, 1977 was improper, without just, sufficient or reasonable cause and in violation of the agreement (System File B-Case No. 10988-1977-BMWE).

 (2) The Carrier shall return the claimant to the position of Tamper Operator and shall reimburse him for the net wage loss* suffered from the date of disqualification until the date he is restored to the position of tamper operator.

 * Net wage loss is the difference between what he would have been paid at the tamper operator's rate of pay and what he was paid by the Carrier at other rates of pay for the period he has been withheld from the position of tamper operator."

 OPINION OF BOARD: Claimant entered the service of the Carrier as
 a Track Laborer on January 16, 1970. On March 16,
 1972, he was awarded a position of Spot Tamper Operator, which he
 successfully filled for approximately two months, thus qualifying as
 a Tamping Machine Operator under Rule 13. During July of 1976, a
 similar position was awarded to an employe junior to Mr. Marin due
 to a misunderstanding regarding seniority dates and qualifications.
 That assigment was challenged by the Organization and in settlement of
 the claim the Carrier awarded the Claimant the position of Spot Tamper
 Operator, Extra Gang 425, on December 22, 1976. The Carrier's
 decision in that case, issued on January 17, 1977, reads in pertinent
 part:


        "In view of the fact that claimant's personal record contained information establishing him as the senior qualified bidder for Position it is conceded that Claimant should have been awarded the position.


        "Claim is being allowed for the differential between Claimant's earnings since July 12, 1976 to date he is placed on Position F-5825 and what he would have earned had he been assigned to that position on July 12, 1976."


On January 31, 1977, just thirteen (13) days later, Claimant was removed from that position because of his failure to perform to the minimum required standards. He exercised his seniority under Rule 14 and remained in the service of the Carrier.

 The Carrier claims that it received complaints regarding Mr. Marin's performance and, accordingly, instructed three experienced supervisors to observe his performance. This they accomplished on January 31. All reported that the Claimant's performance was substandard.

 To all of this the Organization objects, pointing out that the timing appears to be punitive rather than objective. It further argues that the machine had leveling buggies which were unfamiliar to the Claimant and when he asked his foreman for instruction on the buggies he was told that he was the operator and was to get on the machine and operate it.

 On the day of disqualification it claims that the track was frozen which accounted for some of the problems and that several of the claimed errors simply did not happen.

 The record before us is simply inconclusive with respect to either party's position. It would appear that Mr. Marin should be given a reasonable opportunity to qualify as a machine operator on the next job to which his seniority would entitle him, and we direct Carrier to do so.

 However, in the instant case before us, the Organization did not sustain its burden of proof that the contract had been violated.
                    Award Number 22620 Page 3

                    Docket Number MW-22593


        FINDINGS: 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 indicated in the Opinion.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


        ATTEST: Executive Secretary


        Dated at Chicago, Illinois, this 9th day of November 19'(9.