(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employee PARTIES TO DISPUTE: (George P. Baker, Richard C. Bond, and Jervis Langdon, ( Jr., Trustees of the Property of ( Pem Central Transportation Company, Debtor

1. Carrier violated the Telegraphers Agreement when on March 20, 1972, Block Operator E. C. Todd was removed from service and required to attend a trial on March 28, 1972 on the following charge:

Then as decision of said trial, via G-32, dated March 31, 1972, Mr. Todd was dismissed from the service of the carrier.

 2. Mr. Todd shall be returned to service with seniority and all other rights restored and paid for all time lost account involved violation of Regulations 1-E-1, 2-L-1, 2-0-1, 6-A-1(a) and (b), 6-C-1(a), 7-A-1(a), (c) and (e), 8-E-1.

 OPINION OF BOARD: This is a dismissal case based on Claimant's allegedly:
 "Being in an unfit condition to perform service as a
 Block Operator at Edgewood Tower, on March 20, 1972 at 6:25 P.M., while on
 duty and under pay."

 Following an investigation, Claimant was dismissed March 31, 1972. Although never specified in the course of the proceeding, the charge related to Claimant being under the influence of alcohol on the day in question, and for this reason "being in an unfit condition ...."

 Petitioner raises the issue of the charge not being precise as required by the rules. This contention must be rejected since it.is selfevident that Claimant and hi incident under question and were able to prepare a defense without impairment. We also must reject t investigation exhibited bias which was prejudicial to Claimant's defense. Although the record does indicate possible bias on the part of the hearing officer as well as some intervention in the course of the examination of two Carrier witnesses, this conduct, though improper, did not fatally flaw the proceedings.


The dispute herein is unusual in several respects. First, as urged by Petitioner, Carrier's officer who removed Claimant from service came to the location obviously prepared to take action without any further investigation: he came with a relief operator accompanying him and waiting to be called and with an out-of-service notice in his pocket. The Organization alleges that Carrier Assistant Trainmaster Holt, had been informed by Mr. Morris, Assistant Supervisor of Communications and Signals, that Claimant's speech was incoherent and that there
The other unusual element in this matter is the fact that Claimant had a chronic speech impairme and further was lame, causing an unusual gait. All three Carrier witnesses testified that Claimant's speech was slurred and difficult to understand and that he was unsteady on his feet; they all testified that he was unfit to perform his duties. On the other hand, Mr. Morris, who spent an hour and a half with Claimant in the tower prior to his removal from service, testified that he performed the required work during this period satisfactorily, but that he seemed "... as an alert employee". Mr. Holt testified that Claimant upon questior ing first denied, then admitted and later denied that he had something alcoholic to drink earlier in the day, after which he got some sleep, prior to coming on duty at 3:00 P.M. Holt also testified that he smelled alcohol when talking to Claimant. It is noted, however, that Mr. Morris who spent a substantial period of time with Claimant made no such allegation, nor did the Police Officer who indicated that he was unable to smell anything at that time. In substance, then, we have credible testimony that Claimant had a more than usual speech problem, his speech was slurred; his gait was more than usually unsteady; and one witness testified that he smelled alcohol on Claimant's breath. This was countered with the fact that he did perform his duties properly, in spite of somewhat bizarre behavior, and that he had chronic disabilities in the two areas indicated. It is also noted that although Claimant stated that his own defense. There is no credibility issue since all three witnesses testified on Carrier's behalf without contradiction.

 This dispute must be distinguished from all the Rule G cases cited by and relied on by Carrier in that in this case there never was a charge or finding that Claimant was under the influence of alcohol. From the evidence of record, however, it is clear that there was substantial uncontroverted testimony that Claimant was indeed unfit for duty on the date in question;


the Carrier may not tamper with its major burden of safety by ignoring behavior such as that exhibited by Claimant, in any critical position. Therefore we find the Carrier was correct in its conclusion that Claimant was guilty as charged. Wit imposed by Carrier, we find that this was a harsh and discriminatory assessment in view of Claimant's unblemished twenty year plus record and since this was not a Rule G violation. We shall reduce the penalty to a six month disciplinary lay-off; Claimant shall be made whole under the terms of Rule 7-A-1(e).



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



That the penalty imposed shall be reduced to a six month disciplinary lay-off.

                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division

ATTEST: A",L~

        Executive Secretary


Dated at Chicago, Illinois, this 31st day of January 1975.