(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (REA Express, Inc.

(1) The Agreement governing hours of service and working conditions between the parties, effective January 1, 1967, was violated by the Agency at Atlanta, Georgia, when on December 7, 1971, employe A. C. Smith was notified by Assistant Service Center Manager M. W. King that he was dismissed from service effective December December 1, being allegedly charged with violation of Rule 70(b) of the Company's General Rules and of Rule 70(b) in that the accused was in employee' locker room at approximately 11:20 P.M., November 13, 1971, intoxicated after requesting and being given permission at 6:00 P.M. to go home after stating he was sick, and;

 (2) That Mr. Smith shall be restored to service with seniority rights unimpaired, his record shall be cleared of the charges and he ,hall be compensated for all monetary rights unimpaired and his record cleared of the charges, and;

 (3) Mr. Smith shall be additionally compensated for any overtime which he would have received and any expense incurred by him due to the Agency cancelling health and welfare insurance policy with Blue Cross-Blue Shield Insurance Company and he having to assume premium payments.

 OPINION OF BOARD: Claimant, with seniority date in October 1961, was a regularly
 assigned carloader when he was dismissed, effective December
 7, 1971, after hearing and findings of guilt on the charge of intoxication in
 violation of Rule 70(b). The specific charge was that Claimant was in the Em
 ployee's locker room at approximately 11:20 P.M., November 13, 1971, in a state
 of intoxication, albeit he had obtained permission to leave work due to sickness
 at 6 P.M.

 At the hearing the Claimant denied the charges. His explanation of the actuation was that he had taken tranquilizers prescribed by a physician for a painful back condition. However, two Carrier witnesses testified that Claimant was intoxicated. One of them, Mr. J. L. Biggs, Platform Supervisor, testified as follows:




JLB: Yes, Sir.

 MWK" What was Mr. Smith doing at this time?

 JLB: He was lying on the bench asleep.

 MWK: At this time did you awake Mr. Smith?

 JLB: Yes, air.

 MWK: What was his response to being awakened?

MWK: Did you leave Mr. Smith in the locker room at this time?

 JLB: Yea, air.

 MWK: Did you have occasion to return to the locker room later?

 JLB: Yes, air.

 MWK: Approximately what time did you return to the locker room?

 JLB: I am not sure but I would say approximately 11:00 or 11:30 P.M.

 MWKi Was Mr. Smith at this time still asleep?

 JLB: At this time, no air.

 MWK: What was he doing at this time?

 JLB: Ha was sitting up on the bench.

 MWK: Was there anything unusual in his actions and appearance?

 JLB: Yea, sir, I would say so.

JLB: I would say the man was intoxicated.

 MWK: What made you believe c; at he was intoxicated?


            __"JLB= I had talked to him several minutes and he was slow in his manner of speech and he told me he had to go upstairs and talk to Mr. Shirley, the clockman, about getting a ride home. At this time he stumbled and fell to the floor. I preceeded then to help him up and set him back on the bench and left.


            MWK: Did you smell any odor that would lead you to believe that he had been drinking any alcoholic beverages?


        JIB: Definitely so.


        MWK: Mr. Biggs, in your opinion was Mr. A. C. Smith intoxicated?


        JIB: Yes, sir, I would definitaly say so."


While the fact of intoxication was amply covered by Carrier's evidence, the Carrier did not establish that intoxicating beverages were in Claimant's possession or on the premises when the incident occurred. In assessing the discipline the Carrier co suspension in March of 1971 for having intoxicating beverages on company property.

 In light of the foregoing, and on the whole record, we believe there was substantial evidence to support Carrier's findings of guilt and we further believe that discipline was warranted. Also, there is no doubt that, in deteri-
 mining the quantum of discipline, Carrier could properly consider Claimant's prior record. Nonetheless, on the question of excessiveness of discipline, we believe the case balances out in Claimant's favor. Claimant had almost a decade of service with only one two-week suspension prior to the instant infraction. Also,no intoxicating beverages were found in his possession or on the premises, he was not on duty at the time in question, and he did not conduct himself in a disorderly manner or otherwise cause any significant interference to Carrier's operations. In view of these mitigating facts, and on the whole record, we conclude that the penalty consequently, we shall award that Claimant be restored to service without back pay.

        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;
                    Award Number 20003 Page 4

                    Docket Number CLX-20290


That this Division of the AdJustment Hoard has Jurisdiction over the dispute involved herein; and

        The discipline was excessive.


                      A W=


The claimant shall be restored to service with seniority rights unimpaired, but with no pay for time lost.

                            NATIONAL RAILROAD ADJUSTMENT BOARD

                              By Order of Third Division


ATTEST; . _ /1 ii
 Executive Secretary

 Rated at Chicago, Illinois, this 31st day of October 1973.