"During this entire investigation Mr. A. E. Beasley, the company witness, was allowed to remain in the investigation, and he should only be in attendance when he is questioned. Mr. R. N. Harlow was never called as a company witness, when he was supposed to be the signer to a supplement letter to the investigation."

No objection was made at the hearing to having witnesses testify separately and, under the circumstances, must be considered having been waived. See Third Division Awards 9326 (Rose), 13674 (Weston), 14391 (Zumas). Further, the agreement does not provide for separation of witnesses at a. hearing. The mere fact that Communications Supervisor was at the hearing does not necessitate his being used as a Carrier witness. Had the Organization representative desired to question Mr. Harlow, he was available.. Obviously, the Employes felt that any testimony by Mr. Harlow would not aid in their defense of the charges against claimant. None of these actions prejudiced the claimant's rights or resulted in an unfair or partial hearing.

It must be as apparent to this Board as it is to Carrier that both the line of questioning of the Employe Representative and the foregoing issues objected to in his appeal of the dismissal decision is merely an attempt to cloud the issue with a multitude of extemporaneous issues in order to~ take the spotlight off the seriousness of claimant's violation.

CONCLUSION

There is ample evidence in the record that claimant used intoxicants, when subject to duty and was in violation of Rule G. The penalty of dismissal was proper in light of the facts of record, and this Board should not. usurp Management's decision in this case, and the Organization's claim should be denied in its entirety.

(Exhibits not reproduced.)

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 dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

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

Parties to said dispute waived right of appearance at hearing thereon,

In this discipline-dismissal case, Claimant, an Assistant CommunicationConstructionman, was charged with violation of Rule G on account of being in an apparent intoxicated condition, in the camp cars at Wadsworth, Ohio, ,on the morning of April 21, 1965.

At the hearing, Communications Gang Foreman, L. L. Graff, testified that about 3:20 A. M. on the date in question, two persons, a man and a woman, assisted Claimant to the Camp Car and had to unlock the door for Claimant; that at 7:30 A. M. the same day Foreman Graff informed Claimant that he was unfit for work, and offered him the option of the day off without pay, or one day as a paid vacation; that, in his opinion, Claimant was unfit for duty from apparent intoxication; that Claimant went to bed fully clothed when he returned to the camp car; that Claimant was wallowing around, and his coordination was very bad; that Claimant on the morning of the 21st of April spoke fast and slightly slurred his words, but his words were coherent.

A. S. Beasley, Communications Constructionman, testified that Claimant wasn't his self, and that he could have been sick or something; that he could not judge whether or not Claimant was able to go to work that morning; that Claimant talked kind of loud, and his talk was not the same as always.

Claimant testified that he returned to the camp car about 1:05 A. M.; that his next door neighbors, a man and a woman named Lottie, stepped inside the car with him after the man unlocked the door; that during the evening of the 20th he played pool at a nearby grill and drank 5 or 6 beers; that he was able to go to work on the morning in question, and was not sick in any way.

The Rule involved herein, namely, Rule G, reads as follows:

"The use of intoxicants or narcotics by employes subject to duty or their possession or use while on duty is prohibited and is sufficient cause for dismissal."

It is apparent from the record that Claimant was under the influence of intoxicants on the morning in question. He admitted that he drank 5 or 6 beers on the previous evening, and Foreman Graff, who had observed him return to camp car in the early morning hours, testified that at the time the men were preparing to go to work, "He was wallowing around, his coordination was very bad, and with all the safety bulletins that are sent out, I did not think it was wise to allow Mr. Toms to go to work with possible injury to himself and others." Thus, we feel that there is substantial evidence in the record to sustain a finding of guilt and, therefore, Carrier did not act in an arbitrary or capricious manner in exercising its disciplinary power in this instance.

However, the penalty of dismissal imposed against Claimant by Carrier, we feel, is excessive and unreasonable and, therefore, arbitrary so as to

constitute an abuse of Carrier's discretion in this regard. We arrive at this conclusion after taking into consideration the fact that Claimant consumed the beer intoxicants during the prior evening and did return to the camp car for rest and sleep. This, we feel, mitigates the seriousness of the proven offense. While. we are in no way condoning Claimant's actions in this matter, we feel a less severe penalty is therefore warranted.

Therefore, taking into consideration Claimant's past record during his 25 years of employment by Carrier, during which time he sustained one previous suspension of 4 months for violation of Rule G, we conclude that a fair and reasonable penalty would be a one hundred eighty day suspension from service, and Claimant's dismissal from service is hereby set aside. Carrier is directed to return Claimant to service with full seniority and vacation rights unimpaired; however, Carrier shall be entitled to deduct any earnings that Claimant may have earned from the termination date of the one hundred eighty day suspension to the date of reinstatement.

AWARD