(4) In assessing the extreme discipline (dismissal), the carrier also took into consideration the personal record of claimant, which speaks for itself.

It is clear then that the action of the carrier is entirely in order, and tha! the claim has no merit whatsoever. Carrier strongly urges the Board to dismiss this case account of the failure of the organization to comply with Article V of the November 5, 1954 agreement; or to render a denial award.

FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dig pute are respectively carrier and employe within the meaning of the RailwaN Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the disputo involved herein.

Parties to said dispute were given due notice of hearing thereon.

The Claimant, G. A. Ebberwein, Jr., entered the Carrier's service as :l Carman Apprentice in January, 1951. On August 16, 1956, he was charged b~ the police with being drunk on the street and forfeited a bond of $15.00. Ir August, 1957, he was furloughed due to lack of work. He was recalled to active service as a Car Inspector at the Carrier's Chattanooga (Tennessee) Shops in December, 1958, but was disqualified approximately three weeks later and again furloughed. On June 25, 1959, he was charged by the police with dis. orderly conduct and being drunk in an automobile. He was sentenced in court to pay a fine of $25.00 or serve 30 days in jail. He paid the fine. In September, 1959, he was recalled as a Car Inspector at the Carrier's Atlanta (Georgia) Industry Yard but was disqualified two days later. On October 1, 1959, he was, re-called as a Car Repairer at the Carrier's Savannah (Georgia) Shops. While driving an automobile within the limits of the City of Savannah at about, 1:00 A. M., October 23, 1959, he struck the rear of a truck which had stopped for a traffic light. The accident resulted in damage of about $7.00 to the truck and of about $350.00 to the Claimant's automobile as well as in a personal injury to a passenger in the latter. The Claimant was arrested by the police and charged with reckless driving, having an accident, causing personal injury and being drunk. On the same day, he appeared in the Savannah Police Court and was bound over to the City Court where he was tried on March 4, 1960. He pleaded nolo contendere and was sentenced to pay a fine of $150.00 or serve 60 days in jail for driving an automoblie while under the influence of alcohol He paid the fine.

After a formal investigation hearing, he was dismissed from the Carrier's service, effective as of April 7, 1960. He filed the instant grievance in which he claims re-instatement with accumulated seniority rights and compensation for all time lost. For the reasons hereinafter stated. we are of the opinion that his claim is only partly justified.

1. At the outset, the following two procedural objections raised by the Carrier require disposition:

First, the Carrier argues that the Organization failed to notify, in writing :Taster Mechanic McKay of its rejection of his decision declining the Claimant',, grievance and that such .failure was violative of Article V, (b) of the Novem

ber 5, 1954, Agreement. The record reveals that General Chairman Bookout stated in his letter of appeal to Superintendent Perkins that a "copy (of) this letter and appeal is being furnished Mr. H. M. McKay and to advise his decision dated May 9, 1960 is not acceptable . " (Carrier's Exhibit "B"). A careful review of the available evidence has satisfied us that Bookout mailed said copy by ordinary mail to McKay. It is, of course, possible that the copy was lost in the mail but Article V, (b) does not require that it had to be ,ent by registered or certified mail.

Second, the Carrier asserts that the Organization failed to send a copy of its appeal from the decision of Superintendent Mims to the latter and that Article V, (b) was again violated. This objection was not raised by the Carrier during the processing of the instant grievance on the property. As a result, the Carrier is barred from raising it before us. See: Award 1834 of the Second Division.

In summary, we hold that the Carrier's procedural objections are without merit.

2. The Claimant was dismissed on the ground that he violated Rule 21 of the applicable labor agreement which provides, as far as pertinent, that "an employe detained from work . . . for any . . . good cause shall notify his fore man as early as possible." At the investigation hearing, the Claimant's supervisor, Chief Car Inspector Herndon, testified that the Claimant called him before the starting time of his work shift on October 23, 1959, and asked for permission to be absent from work because he had an accident and had to gc" to court. Herndon also stated that he granted the permission. Furthermore, fter having reviewed the stenographic transcript of the investigation hearing. superintendent Perkins conceded in a letter, dated July 6, 1960, and addressed o the Claimant's representative, that "it (the investigation) did not prove thai ice (the Claimant) was guilty of violating Rule 21 of the current agreement" sCarrier's ex parte submission brief, p. 8). Under these circumstances, the ".'.arrier's continued contention that the Claimant violated Rule 21 is untenable.

a. The Claimant was dismissed for the further reason that he violated :rules G and 701 of the Operating and Maintenances Rules which read, as fat ~. pertinent, as follows:

Rule G:

"The use of intoxicants . . . at any time when it subjects the "~ompany to criticism or loss of good will is sufficient cause for dismissal."

Rule 701:

"Employ es will ever be mindful of the fact that the public judges the company by the appearance and conduct of its employes and they must at all times conduct themselves so as to reflect credit on them,elves and the railway."

Che right of the Carrier to establish and enforce reasonable operating ana maintenance rules for its employes cannot be doubted, except when such rules ere inconsistent with law or the terms of the applicable labor agreement. See: Award 2204 of the Second Division. A critical examination of Rules G and 701 iia- convinced us that. they do not fall within the realm of such exception.

The basic question requiring decision is then whether the Claimant violated the Rules. The answer is in the affirmative.

The record shows that the Claimant ran afoul of the law in three instances involving the use of intoxicants within the period of slightly more than three years. In an effort to exonerate himself, the Claimant argues that he was not in the employ of the Carrier when the second instance occurred on June 25, 1959. The answer to this argument is that he was on furlough from the Carrier's service at that time and, therefore, an inactive employe entitled to be recalled to active service in accordance with his seniority rights.

Regarding the third instance, the Claimant argues that his conviction for driving an automobile while under the influence of alcohol cannot be held against him because he pleaded nolo contendere before the Georgia trial court. In support of this argument, he relies on Title 27, Section 1410 of the Statutes of the State of Georgia which provides, as far as relevant, that a "plea of nolo contendere shall not be used against the defendant in any other court or proceedings as an admission of guilt, or otherwise, or for any purpose . . ." We are of the opinion that the Claimant's argument is without merit.

Congress, acting within its constitutional authority, has, in Section 3, First (i) of the Railway Labor Act, vested this Board with exclusive primary jurisdiction to adjudicate "the disputes between an employe or group of employes and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions." See: Slocum v Delaware, Lackawanna & Western Railroad Company, 339 U. S. 239; 70 S. Ct. 577 (1950; Brotherhood of Railroad Trainmen v. Chicago River and Indiana Railroad Company, 353 U. S. 30; 77 S. Ct. 635 (1957); Pennsylvania Railroad Company v. Day, 360 U. S. 548; 79 S. Ct. 1322 (1959). In addition, Congress has directed this Board in Section 3, First (u) of the Railway Labor Act to "adopt such rules as it deems necessary to control proceedings before the respective divisions." Congress evidently considered that centralized and specially designed procedures administered by a single federal agency were necessary to obtain uniformity in both the adjudication of grievances and the application or interpretation of labor agreements in the railroad industry. In other words, the Railway Labor Act is all-embracing and national in its scope. See: State of California v. Taylor, 353 U. S. 553, 566; 77 S. Ct. 1037, 1045, 1957). The supremacy clause of Article VI of the Constitution forbids recourse to diverse or potentially conflicting local or state procedures which could conceivably nullify the intent of Congress.

In applying the above principle to the facts underlying the case at hand, we have reached the following conclusions:

This Division has never adopted a procedural rule which would afford the Claimant the protection which he asserts here on the basis of his plea of nolo contenders before the Savannah City Court. Consequently, Title 27, Section 1410 of the Statutes of the State of Georgia does not preclude us from taking into account the undeniable fact that the Claimant was charged with driving an automobile while under the influence of alcohol, sentenced therefor, and paid a fine of $150.00 in lieu of serving 60 days in jail.

4. It is well established in the law of labor relations that an employe's past record cannot generally be used against him in resolving the question of whether he is guilty of an alleged offense. Yet it is also a firmly recognized principle that his past record may be taken into account in determining the

degree of a disciplinary penalty to be imposed upon him when a proved offense can properly be evaluated only in the light of his previous conduct. See: Awards 1367, 1544, and 2714 of the Second Division; see also: Arbitration Award in re Certain-Teed Products Corp., 62-1 Labor Arbitration Awards (Commerce Clearing House, Inc.) No. 8197, pp. 3769, 3772 (1962); Frank Elkouri and Edna A. Elkouri, How Arbitration Works, Revised Ed., Washington, D. C., BNA Incorporated, 1960, pp. 428-430 and cases cited therein.

While none of the three incidents in question, standing alone, would possibly have been sufficient conclusively to prove a violation of Rules G and 701 on the part of the Claimant, we are satisfied that the general pattern of his, conduct was incompatible with the letter and spirit of said Rules. It is true,. as urged by the Claimant, that the three incidents did not occur on the! Carrier's property or while he was on duty. However, we do not construe they Rules so narrowly but are of the opinion that they are generally applicable when an employe comports himself in such a manner as conceivably to subject the Carrier to criticism. See: Awards 17158 and 20162 of the First Division. In summary, we hold that the Claimant was guilty of a violation of Rules G and 701.

5. The right of the Carrier to discipline the Claimant under such conditions is beyond doubt. We have consistently held that a Carrier's disciplinary action can successfully be challenged before this Board only on the ground that it was arbitrary, capricious, excessive or an abuse of managerial discretion. See: Awards 3874 and 4000 of the Second Division. The evidence on the record considered as a whole has convinced us that the Claimant's dismissal was an excessive penalty and that a lesser penalty is appropriate. This is particularly true in view of the fact that one of the charges for which he was dismissed was unjustified as pointed out hereinbefore and that the three incidents involving the use of intoxicants occurred while he was off duty. Hence, we hold that the Claimant shall be re-instated to his former position with accumulated seniority rights and with compensation for all time lost since his dismissal,. except that no compensation shall be made .for the period from April 7, 1960, to July 6, 1960. Moreover, from the compensation due to him there shall be deducted any remuneration which he may have earned in other gainful employment from and after July 6, 1960, until his re-instatement.

AWARD