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                                    ~ctrninistrative Assistant


        Dated at Chicago, Illinois, this 7th day of June, 1974.

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        Form 1 NATIONAL RAILROAD ADJUST~"1EN'F BOARD Award No .6709

        SECOND DIVISION Docket No. 6537

        2-N&W-CM-'74

        The Second Division consisted of the regular members and in

        addition Referee David Dolnick when award was rendered.

        ( System Federation No. 16, Railway Employes'

        ( Department, A.F. of L. - C.I.O.

        Parties to Dispute: ( ,(Carmen)


                        ( Norfolk and Western Railway Company


        Dispute: Claim of Employes:


              I. That under the Current Working Agreement Carman Tommy Mallory was unjustly dismissed from,all services with the Carrier on December 29, 1971, as a result of an investigation held on December 17, 1971.


              2. That the Carrier be ordered to restore Carman Tommy Mallory to service and to his former position with seniority unimpaired, fringe benefits and pay him eight (8) hours at pro rata rate of pay for December 29, 1971, and for each 'day thereafter until he is .restored to service.


`, 3. That~the Carrier be ordered to pay Carman Tommy Mallory
                an additional 6% per annum compounded annually on the anni

                versary date of claim.


        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, 193+.


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


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


        Claimant was advised to appear for a formal investigation to determine his responsibility, if any-, "for being under the influence of alcohol while on duty at Osborn, Indiana, at approximately 11:20 p.m., December 10, 1971." After the investigation he was dismissed from service effective December 29, 1971. He had been employed by the Carrier for about 16 years.

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Form 1 Award No. 6709
 Page 2 Docket No. 6537 /

                                          2-N&W-CM-'74


Claimant's assigned hours as a Carman were from 4:00 p.m. to 12:00 midnight. At about 11:20 p.m. on December 10, 1971, the Claimant was accosted by Carrier's supervisors who determined that he had consumed an alcoholic beverage. That the Claimant had taken a drink or two is not denied. He tesitifed that he had a few drinks but that he was not staggering.

 Flmployes support Claimant's position that he was not working and was not on duty at 11:20 p.m. on December 10, 1971. He contends that he went home at about 5:30 p.m. because he had trouble with his teeth. He came back, he said, around 11:00 p.m. to pay his debts to other Carmen. There is no probative evidence to support this position. He was not marked off and his time card was made out for full $ hours~of work. Isis attempted explanations cannot be accepted as facts.

 Carrier was not obliged to enter Claimant's work record in the investigation notice. Claimant's prior record revealed that. he had been assessed a 30-day suspension on December 24, 1970 for improper performance of his duties resulting in a derailment. No other penalty was on his record during all of the 16 years of employment. He had not previously been disciplined for consuming alcoholic beverages.

    . Claimant's offense on December 10, 1971 was a serious one. He 'moo)

deserved to be penalized. But because of his work record of 16 years
 with only one blemish for an act unrelated to alcohol, we believe that
 the Carrier acted arbitrarily and capriciously in assessing the extreme
 penalty. Sixteen years of service with such a record deserves more
 consideration. Claimant has been out of service for more than,two years.'
 That is more than an adequate penalty.. In view of the testimony in the
 investigation record, he is entitled to no compensation for the time he
 has been held out of service. The Board, therefore, finds that the
 Claimant shall be reinstated as an employe of the Carrier with full
 seniority and other contractual rights preserved and unimpaired, but
 with no compensation of any kind from the date he was held out of ser
 vice to the date of his reinstatement.

                      A W A R D


    Claim is sustained 'in accordance with the findings.


'00)
 Rote 1 Award No. 6709
 page 3 Docket No. 6537
 2-N&W-CM-'74
 . NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Second Division

 Attest: Executive Secretary
 National Railroad Adjustment Board

 e
 By _
 Ros marie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this 7th day of June, 1974.

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