RATIONAL RAILROAD AWfBTI®IT HOARD
THIRD DIVISION

 James C. McBrearty, Referee

 PARTIES TO DISPUTE:

 (Brotherhood of Railway, Airline and
 ( Steamship Clerks, Freight Handlers,
 ( Express and Station Employee
 (
 (Southern Pacific Transportation Company
 ( (Pacific Lines)

 Award Number 21121
 Docket Number CL-21173


Agreement when it dismissed Mr. S. A. Garrett from service following in
 vestigation at which he was charged with allegedly being under the influence
 of intoxicants while on duty November 5, 1973, involving possible violation
 of its Rule G, General Rules and Regulations; and,

 (b) The Southern Pacific Transportation Company shall now be required to allow Mr. S. A. Garrett eig Ticket Clerk, Hurlingeme, California, beginning November 6, 1973 and continuing each date thereafter until he is restored to service with all seniority rights unimpaired; and,

 (c) For any mouth in which claim is here made for compensation on behalf of the claimant involved, the Carrier shall also make premium payments on behalf of the claimant in the appropriate amounts required under, Travelers Group Policy Contract GA-23000 as amended, for all benefits prescribed in that contract. OPINION OF HOARD: Claimant began service with the Carrier on March 6, 1946.
 At the time of the incident giving rise to this dispute,
 Claimant was regularly assigned to the position of Ticket Clerk at Burlingeme,
 California, working the 10:00 AM to 6:30 HI shift.

 On November 5, 1973, at 11:40 AM. Claimant was removed from service by Carrier's officer pending investigation, on the ground that the Claimant was not capable of successfully discharging his duties, since he had the odor of intoxicants on his breath, his speech was slurred, and his equilibrium was poor.

 A formal investigation into this matter was held on November 16, 1973. As a result of the evidence adduced at this investigation, Claimant was dismissed from service by letter dated Nova 27, 1973. Claimant was


found by Carrier to have violated Rule G of the Carrier's General Rules and Regulations, which reads as follows:

          "RULE G. The use of alcoholic beverages, intoxicants or narcotics by employees subject to duty, or their possession or use while on duty is prohibited.


          Employees shall not report for duty under the influence of any drug, medication or other substance, including those precribed by a doctor or dentist, that will in any way adversely affect their alertness, coordination, reaction, response, or safety; nor shall such drug, medication, or other substance be used by employees while on duty."


        Numerous prior awards of this Board set forth our function in

discipline cases. Our function in discipline cases is not to substitute
 our judgment for the Carrier's nor to decide the matter in accord with
 what we might or might not have done had it been ours to determine, but
 to pass upon the question whether, without weighing it, there is substan
 tial evidence to sustain a finding of guilty. Once that question is
 decided in the affirmative, the penalty imposed for the violation is a
 matter which rests in the sound discretion of the Carrier. We are not
 warranted in disturbing Carrier's penalty unless we can say it clearly
 appears from the record that the Carrier's action with respect thereto
 was discriminatory, unjust, unreasonable, capricious or arbitrary, so as
 to constitute an abuse of that discretion.

 Looking at the record as a wbole, the Board finds that despite some conflicting testimony, there is a preponderance of the evidence indicating that Claimant was un 1973.

 Carrier's two officers state that Claimant had a "definite odor of intoxicants on his breath." In addition, they allege that Claimant "was not able to walk in a straight line, and when standing, he bad to use the desk to keep from losing his balance." (Tr., pp. 7 and 9).

 However, Carrier's third witness, Agent R. W. Moon, testified specifically that, "I _w close enough to him, but I couldn't detect any alcohol." (Tr., p. 15,.empbasis added). Moreover, although Mr. Moon stated that Claimant w not able to walk a straight line, nevertheless, he also indicated that Claimant did not have to use the desk to keep from losing his balance.
                    Award Number 21121 Page 3

                    Docket Number CL-21173


          Q. Did you notice him while he was there in the office leaning on a desk to be able to stand up?


        A. As I recall, he never toucLed a desk that day at all.


          Q. Did you notice him using his arm or hand to maintain his balance by leaning against a desk?


        A. No. (Tr., p. 16).


Despite this inconsistency in testimony, however, all three (3) of Carrier's witnesses are in agreement that Claimant was unable to perform his duties as ticket clerk, which involved personal contact with the public, as well as the handling of money. Five (5) checks in Claimant's cash box were found torn; two (2) of then being torn completely in halt.

 Claimant argues that he was indeed able to perform his duties on the morning of November 5. He insists the checks were taken in the night before (although by him). Moreover, he thinks his inner ear disorder and bad legs (particularly the left one) contributed to his not being able to walk a straight line. Nevertheless, Claimant does admit to having had his last drink "before midnight" (Tr., p. 26)."Claimant further states in his "Submission of Dispute" that "...a preponderance of evidence ...my tend to support a finding that Claimant may have been under the influence of intoxicants ... ."

 The Hoard thus finds that there is a preponderance of evidence that Claimant was unable to perform his duties involving personal contact with the public, as well as the handling of cash, on the morning of November 5, 1973.

 Nevertheless, the Hoard finds-ths..ponishoent of dismissal in light of Claimsnt'a 27 years and eight moatbs of service to be unjust, unreasonable, and excessive. Carrie of his two (2) previous warnings about the use of intoxicants prior to assuming duty. One of these was in 1972, and the most recent in September 1973. ?et, Carrier did not indicate if these warnings were oral or written, nor whether Claimant was warned that disaissal would result the next time the offense occurred.

 In addition, looking at the Claimant's totality of service over the past 27 years and eight months, it would seem on the whole Claimant has been a good and faithful servant of Carrier. Two warnings hardly convert an otherwise unblemished record, into a "bad record."
                Award Number 21121 Page 4

                Docket Number CL-21173


        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

 That the discipline imposed was unreasonable, unjust, and excessive to the extent indicated in this opinion.

                    A W A R D


Part (a) of Claim is sustained to the extent indicated in this Opinion.

 Part (b) of Claim is sustained with respect to seniority, but denied with respect to back pay.

        Part (c) of Claim is denied in its entirety.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


        ATTEST: Executive Secretary


        Dated at Chicago, Illinois, this 16th day o£ July 1976.

CARRIER MEMBERS' DISSENT TO AWARD 21121, DOCKET CL-21173
 (Referee McBrearty)

 We dissent. The matters of record which clearly establish this claim is invalid are discussed in the memorandum submitted by the Carrier Members. That memorandum is retained in the Master File and by reference is incorporated in this dissent.

                                  1.1 1e. ~~.

RECEIVED

11.11- 2311976

d a HAUEB


I

 5