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

1. Violated the rules of the March 3, 1970 Rules Agreement by discharging Mr. M.L. Ray, Clerk, Yard Office, Tacoma, Washington, from the service of the Railway Company, effective January 7, 1972.

 2. Shall now reinstate Mr. M.L. Ray into the service of the Railway Company with seniority and other rights unimpaired, and payment for all wage loss, commencin
OPINION OF BOARD: Initially, the Organization asserts a procedural
 deficiency, allegedly prejudicial to Claimant. The
 Docket shows that the Superintendent who preferred charges also rendered
 the decision and assessed the penalty, even though he was not physically
 present at the investigation. Claimant raised this procedural issue
 during the handling of the matter on the property.

 We have noted, in Award 20099, conflicting authority on the subject of a meaningful determination being rendered by an individual other than the Hearing Officer.

 This Board is precluded from making determinations of credibility. Thus, in a case where sharply div a determination of guilt or innocence, it may well be that a Claimant s procedural rights require that an individual who was present at the investigation and observed the demeanor, actions, etc. of the witnesses personally resolve questions of credibility.

 However, in this dispute, any possible procedural error was not prejudicial to Claimant due to his own admissions at the investigation.

 Claimant was charged with (1) being under the influence of alcoholic beverages while on duty; (2) being quarrelsome or otherwise vicious; and (3) not being alert and attentive to duties.


Witnesses testified that Claimant admitted consuming three glasses of punch, which contained intoxicants, immediately prior to reporting for duty. They also testified as to certain physical =nifestations suggesting alcoholic co
Claimant conceded, at the investigation, consumption of alcoholic beverages, and a smell of liqu under the influence of alcohol "to any great extent." Thus, resolving any possible procedural deficiencies in favor of Claimant, the Board is of the view that Carrier established the charge of being under the influence of alcohol.

 Concerning the charges of being "quarrelsome and otherwise vicious" and "not being alert and attentive to duty", the record is less clear. The words admit of subjective determinations of conduct, which may vary among individual observers. However, we do note that Claimant was not a model of decorum at the time in question. In any event, the finding of intoxication is sufficient for a denial of the claim.

 Claimant has urged that the penalty of discharge was not warranted, citing Awards which have modified assessments of punishment due to mitigating circumstances, abuse of discretion, etc. We have carefully reviewed the cited Awards, but do not find them controlling here.

 Substantial and credible evidence was presented at the investigation, including Claimant's own s charge of being under the influence of alcoholic beverages while on duty. We will not disturb the assessed penalty absent a showing that the Carrier's decision was so unjust, unreasonable, arbitrary, capricious or discriminatory so as to We are unable to make such a finding in this case. The claim will be denied.



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
tu~.ri~


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








ATTEST:
        Executive ecretaty


Dated at Chicago, Illinois, this 28th day of February 1974.