(Brotherhood of Railway, Airline and
 ( Steamship Clerks, Freight Handlers,
 ( Express and Station Employes
 PARTIES TO DISPUTE:
 (Chicago and North Western Transportation Company

1. Carrier violated the terms of the Current Agreement, particularly Rule 21, when under date of Aug Schmidt, car clerk, from the service of the Carrier as a result of an improper investigation held on
2. Carrier shall be required to reinstate Mr. R. G. Schmidt, with all rights unimpaired, and to compensate him from August 29, 1972 forward until he is restored
3. In addition to the money amounts claimed above, the Carrier shall pay Mr. R. G. Schmidt interest thereon at the rate of 6 Per cent per annum, to be compounded on each anniversary date of the claim.

 OPINION Of BOARD: Claimant was discharged, in this dispute, for viola
 tions of Rule G. Claimant, a Car Clerk, had not re
 ported for duty at 7:00 P.M. on August 16, 1972 He appeared on the prop
 erty and talked with his supervisor at about 8:45 P.M. that night. An
 investigation was conducted on August 21, 1972 to determine his re8ponsi
 bility for failure to protect his ass'gt'aseat. As a result of this investi
 gation he was assessed ten days' deferred discipline. On August 22, 1972
 he was charged with a violation of Rule G while on Company property at about
 8:50 P.M. on August 16th. After an investigation held on August 26, 1972
 Claimant was dismissed frost service. It is the latter incident which is
 the subject of this dispute. A further problem occurred subsequent to
 Claimant's dismissal and is raised by Carrier. In accordance with well
 established doctrine and rules, we cannot consider evidence with respect
 to disciplinary matters which was not raised at the time of the investiga
 tion on the property; consequently that material cannot be considered.

 Petitioner takes the position that Carrier did not prove its case in this dispute, since the Supervisor testified that he could not determine whether or not Claimant had been drinking. Further it is argued that Claimant had been called to com



jected to double jeopardy as a consequence of two investigations sting
 from the same incident. First Division Award 21343 is cited in support of
 this last argument.

 Carrier argues that in this dispute Claimant's guilt vas clearly established at the investigation by his own admissions that he bad been drinking. Further, it is contended that Claimant vas not tried twice for the same offense. In the first investigation he was tried for a distinct offense: failure to protect his assignment; in the second investigation the issue was violation of Rule O.

 It must be noted that there was an addition to Rule 0 in 1971: the last paragraph. The entire Rule provides:

        "The use of alcoholic beverages or narcotics by employee subject to duty is prohibited. Being under the influence of alcoholic beverages or narcotics while on duty or on company property is prohibited. The use or possession of alcoholic beverages or narcotics while on duty or on company property is prohibited.'


        Employee shall not report for duty under the influence of any drug, medication or other substance (including those prescribed by a doctor or dentist) that will in any way adversely alter their alertness, coordination, reaction, response or safety; their use or possession while on duty or on company property in prohibited."


The Organization's argamssit with respect to double jeopardy is not well taken. Claimant was tried for two different offenses: failure to protect his assignment and sec tried for the moms offense trice but rather was tried for two distinct violations arising from the s being tried separately for rape and robbery, both arising from the same incident. We conclude th arising out of the same occurrence, as were the facts in First Division Award 21343.

 The unrefl:ted testimony at this investigation indicates that Claimant had told his supervisor, When allergy pills and also he had decided to get drink. It would :rear clear that claimant was in compliance with the addition to Rule O, supra, when he chose not to report to work on the night in question. It is ironic that in explaining his reasons which involved obeying the rule, he should be held to be in violation thereof. Under that circumstance, I do not deem it important to determine whether
                    Award Number 21106

                  Page 3

                  Docket Number CL-21296


to see his supervisor in person. There is obviously some ambiguity in the
 total new Rule G: specifically the prohibition against the use of alcohol
 or drugs while "subject to duty" in relation to the sentence "employes shall
 not report for duty under the influence ...." There is no question but that
 Claimant had been taking pills as well as beer about the time he was to go
 to work, which under Rule G and its latest change would preclude his going
 to work (as contrasted with being a direct violation of the first part of
 the rule). For all the reasons indicated, and under the particular circum
 stances of this dispute, the Claim must be sustained. The remedy requested,
 however, is inconsistent with the provisions of the Agreement. Fringe
 benefits and interest and whole !a accordance with Claim-

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


        That the parties waived oral hearing;


That the Carrier and the Employee involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved .Tune 21, 1934;

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

        That the Agreement was violated.


                    A W A R D


Claim sustained; Claimant shall be reinstated in accordance with Rule 21 (c).

                          NATIONAL RAILROAD ADJO&Ma1T HOARD

                          BY Order of Third Division


ATTEST: i2l4ls PAAWI~10
        Executive Secretary


Dated at Chicago, Illinois, this 29th day of June 1976.
            DISSENT OF CARRIER MFFh18EliS

            TO

            THIRD DIVISION AWARD 21106 (DOCKET CL-21296)

            (Referee Lieberman)


Award 21106 is in serious error in sustaining the claim on the basis of the second part of Rule G.

 Claimant was not charged with violation of the second part of Rule G. He was charged with the first portion thereof which prohibits the use of alcoholic beverages or narcotics by emoloyes subject to duty, and being under the influence thereof while on company property. Certainly, the second part of Rule G does not nullify the first part, as the majority seems to think when they refer to an alleged ambiguity that actually is non-existent.

 The unrefuted record developed that claimant's on-duty time was 7:OOPM. When he failed to report for duty his supervisor called his home several times, and checked through the yard, but was unable to locate or contact him. He then called a replacement to fill the job. At 8:50PM Claimant showed up and stated that he had gotten involved in a bar and didn't notice the time, that he had bad a few beers and had taken some allergy pills.
 Dissent to Award 21106 Page 2

 Thus, by his own admission he had been using alcoholic beverages and narcotics not only while subject to duty but also when he should have been on duty; and he was on company property. His excuse for being on company property in that condition was:

            "I might state that on my way home it is just about impossible for me to get there without coming onto company property".


He was not responding to a call to see his supervisor in person, simply because he was unaware that his supervisor was looking for him. The majority doesn't "deem it important to determine whether or not the evidence indicates he had been called to see his supervisor in person". Apparently, the majority feels it also is not important that Claimant was on his way home, that he was on company property under the influence of alcohol and narcotics, nor that he stopped merely to tell his supervisor that he wasn't going to work but was going to go out "drink some more and get drunk".

 The completely unconsconable disregard by the majority for the facts in the record, and the clear and undenied violation of Rule "C",
 Dissent to Avard 21106 Page 3

 renders this award a complete nullity. It is not supported by the record, by the agreement, or by case law of the National Railroad Adjustment Hoard. We, therefore, register our most vigorous dissent.

                          A ..

                        G. M. Youhn


                        P. C. Carter


                                    a

                                      i. ,


                        W. F. Euker


                        J. Mason


                        G. L. Naylor


                        CARRIER MEMBERS

7

LABOR M,,pFF, ' S A.°°dS;ER

7n

CARRIER 1IE14;ERS' DISSaIT


I
 AWARD 21106 (Docket CLr21296)

                        (Referee Inrln M. Lieberman)

i

 i The dissent registered by the Minority is not supported by the
            admissible evidence of record. Their arguments are based upon

            (1) inadmissible evidence, and (2) taking testirrory out of context

            of its proper setting.

            Their arg_znents to the contrary notwithstanding, the Carrier made all parts of Rule G, as revised effective June 1, 1967, a part of the proceedings.


                The second part or paragraph of Rule G carries an absolute

i
 prohibition against an employe reporting for work "under the in
 fluence of arty :rug, medication or other substance (including
 those prescribed by both a doctor or dentist) that will in arty
 way adversely alter their alertness, coordination, reaction,
 response or safety."
 The transcript of the proceedings shows that the enploye was
 i
 on the property at the request of the supervisor for a personal
 meeting and that he reported that he had not covered his work
 3
 assigiment becG:se he had been taY,irb medication fcr an allergic
 r condition, as well as having had beer. This testiriony was un
 challenTed at the investigation. '?'.he second nar°_czarh of Rule -^

1 i a


            justified his absence from work and as his appearance was Trade on the property at the request of the carrier, no discipline was justified.


j Based upon the admissible facts of record and the rule,

            the award by the Majority was just and proper.


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 1~

                                        Labor Member ,


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                          Answer to Dissent

                          · Award ?11nF