Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9177
 SECOND DIVISION Docket No. 8572
 2-L&N-MA-'82
 The Second Division consisted of the regular members end in
 addition Referee George E. Larney when award was rendered.
 ( International Association of Machinists and
 Parties to Dispute: ( Aerospace Workers

Dispute: Claim of Employes:




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.

At the time of his termination from service, Claimant, Thomas H. Yeargan, Jr., was a Machinist Apprentice in the Mechanical Department at Carrier's Radnor Shops in Nashville, Tennessee. On the night of the incident, May 9, 1978, which led first to his suspension and then subsequently to his discharge, Claimant was assigned to work the third shift which commenced at 11:00 P.M. Claimant was charged with reporting for work under the influence of an intoxicant and with threatening one of his supervisors, Assistant Department Foreman, R. L. O'Neal. Carrier issued notice of charges to Claimant in a letter dated May 11, 1978 and apprised him an investigatory hearing had been set for May 17, 1978. The hearing was held as scheduled and thereafter in a letter dated May 26, 1978, Carrier notified Claimant that based on the evidence adduced at the hearing he had been adjudged guilty of the charges and accordingly was dismissed from its service. At such time Claimant had been in Carrier's employ for a total of approximately 3 1/2 years.

 The record evidence reflects that Claimant just two (2) days prior to the date of the incident sustained a work related on-the-job injury wherein he severed the end of one of his fingers. A Carrier physician prescribed pain pills for the condition and Claimant was advised to take one pill every four (4) hours. Prior to reporting to work, Claimant relaxed he took a pain pill at 8:00 P.M., but because it was ineffective in relieving the pain he took another pill at 10:00 P.M. The
 Form 1 Award No. 9177
 Page 2 Docket No. 8572

Claimant acknowledged further that earlier in the evening of May 9, 1978, he drank
 one (1) beer, unaware of effects, if any, this would have on him in combination
 with the pain pills, as the Carrier physician did not address himself to this
 situation when prescribing the medication.
 At the beginning of the shift, Foreman O'Neal conducted a safety meeting and
 at the same time gave out work assignments. As he did so, he was interrupted by
 the Claimant who made some derogatory comments about a fellow employe who was
 running late. ONeal, according to his account, at first ignored the Claimant, but
 when interrupted again took notice of him and closely scrutinized his demeanor.
 O'Neal related he observed that the Claimant was staggering, that he was slurring
 his words and that his general appearance was askew. O'Neal also indicated the
 Claimant's breath smelled of alcohol. As a result, O'Neal did not give the Claimant
 his work assignment but instead instructed the Claimant to accompany him to his
 office. At first, according to O'Neal, the Claimant ignored him and when asked again
 retorted he would come into the office when he was ready. O'Neal then left Claimant,
 stepped into his office, informed two other supervisors of the situation and then
 asked the Claimant a third time to come into the office. In the meantime a Special
 Agent, Sidney Simpson, was summoned to the scene. According to testimony elicited
 at the investigatory hearing, Claimant, in the presence of O'Neal,, Simpson and the
 two other supervisors, Gibbs and Strickland, admitted he had been drinking, that
 is, he had had a few beers prior to reporting for work. 0'Neal then informed
 Claimant he could not work his shift and requested Special Agent Simpson to escort
 the Claimant from the property. At this juncture, according to testimony of the
 several supervisors and Special Agent Simpson, the Claimant threatened 0'Neal by
 stating that if he lost his job he would see to it that O'Neal lost his job too
 and that if he ever came back onto the shift he would never get another locomotive
 for him. Further, the record evidence reflects the Claimant threatened to whip
 O'Neal. Ultimately, because of his physical condition, it was determined that the
 Claimant, unable to drive himself, be driven home by Strickland.
 Carrier argues the evidence is substantial in proving the charges against the
 Claimant and that the subject discipline of termination should be upheld. The
 Organization on the other hand argues the Claimant's physical condition was not due
 to his being intoxicated but rather was a result of the medication he was taking at
 the time for pain and the fact that he had taken a double dose of the pills within
 a two (2) hour rather than a four (4) hour interval. The Organization further argues
 the Claimant's otherwise unblemished work record for the whole of his employment
 with the Carrier, amounting to three and one-half (3 1/2) years should serve as a
 mitigating factor in reducing the quantum of discipline imposed here. Under all
 the circumstances the Organization asserts the discipline of discharge is excessive
 and therefore the Claimant ought to be reinstated.
 In our review of the entire record we find that a preponderance of the evidence
 supports Carrier's charge the Claimant was both intoxicated and insubordinate on the
 night of May 9, 1978, when he reported for work. At the same time we sympathize
 with the Claimant's loss of part of his finger sustained while in the performance
 of his job and the pain which he experienced at the time because of this injury;
 but we also view as extremely poor judgment, the Claimant's willful act of drinking
 beer, no matter what the quantity consumed, in conjunction with his taking pain

 medication. We are inclined nevertheless to accord merit to the Organization's Vv
 argument that the Claimant's past unblemished work record should serve as a
 mitigating factor in the diminution of an otherwise proper quantum of discipline.
 Form 1 Award No. 9177
 Page 3 Docket No. 8572
 2 -L&N-MA- ' 82

 rherefore we find the Claimant's termination shall be converted to a disciplinary suspension equal in length to the date of his discharge to the date of his reinstatement.

Claim sustained in part as per findings. Carrier is directed to convert the discharge into a disciplinary suspension and to reinstate the Claimant with seniority but without backpay or other fringe benefits.

                                  NATIONAL RAILROAD ADJUSTMENT BOARD

                                  By Order of Second Division


Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 By- - J~/·
 Ro rie Brasch - Administrative Assistant

 Dated at Chicago, Illinois this 22nd day of July, 19820