Claimant was his only witness. He denied drinking or, the job or having been under the inbuence of alcohol although he admitted drinking at home at an earlier hour.

The record amply sustains the Carrier's judgment that Claimant was under the influence of intoxicants during his tour of duty as Messenger on July 5.

The remaining question presented is whether the penalty of discharge was arbitrary. It is well settled that the Board will not substitute its judgment for that of the Carrier unless there has been a gross miscarriage of jusice. Under the particular circumstances presented we consider that there has been a gross miscarriage of justice in that the penalty was arbitrary. And the evidence upon which we reach that conclusion is not in dispute.

Claimant had been a Messenger in Seniority Group 2. When these events occurred, Claimant's status was that of a "cut-off" employe in a different Seniority Group, namely Group 1. As such, Claimant was required to protect Group 1 extra work unless he "marked off" with permission.

At about 1 :10 A. M. on July 5, Claimant telephoned his supervisor, Jones, Assistant Chief Clerk to the Trainmaster, and marked off with Jones' permission. At about 1:16 A. M., Jones found that the employe expected to work as Messenger from 12:00 midnight to 8:00 A. AT., was absent. Jones telephoned several employes to obtain a substitute but without success. Jones then telephoned Claimant at about 1:30 A. M. and asked Claimant to work as Messenger. Claimant, according to Jones, said "he didn't know-he wasn't feeling so well-but if I couldn't get anyone else, he would help me out". Jones then tried others without success.

At about 2:30 A. M. Jones again telephoned Claimant and told Claimant he could not get help. Claimant reluctantly agreed to work. "I told him I did not feel well and did not want to work, but if he needed someone I would help him out; it was just a few hours and I figured I could stay up that much longer."

The Organization contends that .Jones' procedure in cnnvassiing for a substitute Messenger, and his use of Claimant on a job in a Seniority Group other than Claimant's Group, violated the Agreement; that consequently Claimant was improperly on the Messenger job and the discipline impermissible and in any event unreasonable. Carrier argues that the asserted violation is not relevant; that once Claimant began work, he was subject to Carrier's Rules and was properly disciplined.

We need not decide whether the Agreement was violated. Assuming that the Agreement was violated, that did not suspend operation of the Carrier's Rules nor immunize Claimant from discipline. Assuming that the Agreement was not violated, that did not license the Carrier to act arbitrarily. Violation or no, the circumstances surrounding Claimant's coming to work, are a significant part of the context of events here presented.

Claimant, as instructed by Jones, went on his first errand directly from home. Claimant arrived at the Yard Office at about 3:00 A. M. Jones observed Claimant's condition and talked with him, Jones continued to give Claimant assignments all of which Claimant fulfilled. Claimant "did what I told him to do".

Shortly before 6:00 A. M. Claimant, on one of his errands, picked up Jones' superior, Lawson, and drove Lawson to the Yard Office. Lawson entered and Claimant followed. According to Lawson, he had concluded, while riding with Claimant, that Claimant was under the influence of alcohol and unfit to drive; but when the Yardmaster asked Lawson what was the matter with Claimant; Lawson, according to his own testimony, responded "I don't know; I just got here. What is the matter?"

Lawson alerted Special Officer Badger and sent Claimant on another errand in the Carrier's car. Badger followed Claimant and reported by telephone to Assistant Trainmaster Phillips, Lawson's superior, that Claimant had been speeding and weaving from side to side. Badger took over the wheel and drove Claimant back to the Yard Office at about 6:30 A. M. Phillips and Trainmaster Bollinger talked with Claimant. Claimant was charged and relieved from duty at about 7:20 A. M. Claimant's prior record was clean.

Taking the whole record as it stands, it is abundantly clear that Jones was in a jam. "I had to have a Messenger." In view of the supervisoremploye relationship, Jones' calls to Claimant carried strong overtones of command. Jones, knowing Claimant's condition, took a calculated risk that Claimant would get by as a substitute during the hours remaining before 8:00 A. M. Lawson, Jones' supervisor, took a dim view of the situation at about 6:00 A. M., and passed the ball to Badger.

It is also clear that Claimant took a calculated risk that he could see the job through, and this despite his knowledge that he would have to drive to do the job.

Claimant deserved a penalty but under the particular circumstances, and in view of Claimant's previous clear record, the penalty of discharge was arbitrary.

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

That the parties waived oral hearing;

That the Carrier and the Employe involved in this dispute are respectively Carrier and Employe within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein;

That the penalty of discharge imposed upon M. L. Lambert was arbitrary;

That a penalty of suspension without pay, commencing as of Lambert's removal from duty on July 5, 1958 is appropriate and reasonable;

That Lambert should be reinstated not later than the thirtieth calendar day following the date of this Award, with all seniority, vacation and other rights.

AWARD