Parties Brotherhood of Maintenance of Way Employes
 to and
 Dispute Norfolk and Western Railway Company

 Statement Claim is made that Eugene. Parker Forman rights be restored
 of and that he be paid the difference between Extra Force Labor's
 Clam and Extra Gang Force Foreman's pay for all dates he is
 required to work at the lesser rate of pay, effective with
 October 23, 1979, and that he be paid for the 33 days'
 actual suspension which he lost, at his applicable rate of
 pay. Citing Rile 33 in support of this claim.

 Findings: The Board, after hearing upon the whole record and all evidence, finds that the parties herein are Carrier and Employee within the meaning of the Railway Labor Pct, as amended, that this Board is duly constituted by Agreement dated March 1, 1976, that it has jurisdiction of the parties and the subject matter, and that the parties were given due notice of the hearing held.
 On Tuesday, September 4, 1979, Claimant Eugene Parker, then an acting foreman, was responsible for the supervision and operation of Bachhce No. 50005 operating at approximately MP 573. During the course of the assignment, the aforesaid backhoe was struck by a N&W train. As a result thereof, under date of September 5, 1979 Claimant received notification which., in pertinent part, read:

        "...You are hereby released from the service of the Norfolk &

        Western Railway Caipany . . . . "


    An investigation at the request of Organization was held on

Page 2 Award No. 6(p - 1838
 Septanber 25, 1979 and Claimant Parker was assessed thirty-three (33)
 days actual suspension and discfualified as extra gang foreman.

nnie transcript of the investigation discloses that Train No. M7P, a westbound coal train, had struck the backhoe. Claimant Parker was new to the area that he eras assigned to. On September 4th, at approximately 9:00 AM Hackhoe No. 50005 was operating under the supervision of Claimant. There was no injury :to the operator; however, there was several hundred dollars worth of damage done to the Ixckhoe.

Collier, the backhoe operator, testified that he was digging in the six foot per the instructions of the foreman and that a portion of his outrigger was approximately too feet from the south rail of the westbound track, near the edge of the ties while he was digging out the six foot. There was fog earlier in the morning, but at the time of the col1i.sion there was only approximately 1,000 foot of visibility, due to a right hand curve obstructing the straight ahead vision frcsn the east.

Claimant under examination by Carrier's Officers acknowledged that he did not have a line--up of traffic in both directions in his possession. However, he testified that he did check the line-up for at least one of the directions. Claimant Parker acknowledged to Dennis J. Ahern, Assistant to the Division Engineer - Maintenance, Portsmouth, Ohio, that he had not spoken to the dispatcher prior to putting the backhoe out of the six foot fouling the westbound, that he did not have a line-up in his possession at the time of the incident, that tee only thing he had was a line-up of eastbound train movements only.

Claimant was removed fran service for violating a Norfolk & Western Operating Rile requiring a foreman to get penrassion from a dispatcher

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