(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:

 (1) The dismissal of Crossing Watchman Edward Robinson for allegedly violating rule "G" was impr with which charged (System File MW-FTW-71-10).

 (2) Crossing Watchman Edward Robinson be reinstated with seniority, vacation and all other rights unimpaired and that he be compensated for all wage loss suffered, all in accordance with Rule 22 (e).

 OPINION OF BOARD: Claimant was dismissed after hearing for not protecting
 his assignment and for violation of Operating General
 Rule "G".

 The facts as developed at the investigation hearing are as follows: Claimant telephoned at 2:53 P.M. that he covild not report for his regular ,,ssignment because he was too drunk to work. His regular starting time was 3:00 P.M. He understood the meaning of Rule "G", tr. p.p. 4, 5, 12.

 The Carrier concluded from this uncontradicted testimony that there was just cause to penalize the claimant. In support of the penalty, the Carrier reviewed claimant's record in a letter to the General Chairman, Carrier's Exhibit "G", stating that: "On January 18, 1965, the claimant was dismissed--- for his negligence in failing to promptly lower the crossing gates--resulting in an acc previous clear record of approximately fourteen years. On September 3, 1970, the claimant was again dismissed after having been found guilty of using intoxicants while on duty as a crossing watchman on August 17, 1970. Six months later, claimant was restored to service, penalized to the extent of time actually lost. This Division remitted the penalty in that case to onehalf the time lost; the re the first dismissal.

 The Organization has argued that Claimant protected his assignment by telephoning between 2:30 and 3:00 P.M., and that he should not be found guilty under Rule "G" because he was honest enough to state why he could not report for work. The Organization also contended that an employe does not violate Rule "G" when he drinks intoxicating beverages on his own time.


In addition, the Organization accused the Carrier of making a "special case", of claimant, tr. p. 6, Q. 45, 46; that they were watching him because of excessive absenteeism, tr. p. 11, Q. 87, 88, and it. p. 12, Q. 96.

 Both parties have submitted prior awards for our consideration. They refer to well established policies of the Board with regard to our authority to review the testimony, the decision after hearing and the degree of the penalty. In this Awards because certain conclusions are obvious, to wit: Notice to the Carrier less than ten minutes before starting time for a regular assignment for the reason given cannot be considered as protecting a regular assignment. The late notice was not the result of an emergency. It was the result of a self induced physical condition. The honesty of the claimant in admitting his condition is questionable because such late notice would have required an explanation in any event. The violation of Rule "G", in this case, follows from drinking intoxicating beverage on personal time to the extent that it affected claimant's ability to report to work in a condition to perform the responsible task of a Crossing Watchman. The alternative was to report for work unfit for duty, thereby prejudicing public safety or risking violation of operating rules which require reporting in a fit condition to perform the required work.

 The penalty must be regarded in the light of two previous dismissals with leniency consideration extended in each case. In the second case, this Division found claimant guilty and reduced the penalty. The present situation occurred about seven months after claimant was returned to service. The need to cover claimant's assignment within minutes after the late telephone notice shows lack of concern for public safety at a railroad crossing. It was necessary to assign an employe at the punitive rate, tr. p. 9, Q. 70, 71, 72. In the light of these facts, it is apparent that claimant has already received all the leniency he can expect from his length of service. Lastly, to accuse the Carrier of discrimination against the claimant for giving attention to a case of excessive absenteeism is inconsistent with good personnel policy.

        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 Employes involved in this dispute are respectively Carrier and Employes 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; and

 I
 W; F
                  Award Number 19887 Page 3

                  Docket Number ?f1J-20146


There is substantial evidence to support the decision after hearing. The penalty is not arbitrary or excessive.

                      A Id A R D


        Claim denied


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 8th day of August 1973.

 a