(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: ( (The Chesapeake and Ohio Railway Company ( Southern Region (and Hocking Division)

 STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:

 (1) The dismissal of Track Laborer B. H. Pendleton constituted, harsh, unjust, and excessive discipline.

 (2) The Carrier shall reinstate Claimant Pendleton to his former position with seniority and all MG-1455/BofI 7/1/75).

 OPINION OF BOARD: Under date of June 9, 1975, Claimant, a track laborer,
 was charged with being absent without permission from
 the Tie Force at Marion, Ohio, Friday, May 30, 1975; with being under the
 influence of intoxicants while on Tie Force camp at Marion, Ohio, on Friday,
 May 30, 1975; and with conduct unbecoming a C & 0 employe. A hearing on
 the foregoing charges was held on July 1, 1975. Claimant was adjudged
 guilty of all three charges and dismissed from service with the Carrier.

 At the hearing, Claimant admitted that he was scheduled to work on May 30, 1975 but failed to report. He offered no justification for his failure to report. This was an obvious violation of Rule 804 of Carrier's Book of Rules. Nor has Claimant denied that he was guilty of conduct unbecoming an employe on May 30, 1975. This too was a violation of Carrier's Book of Rules, i.e. Rul
Claimant has denied, however, being under the influence of intoxicants on May 30, 1975. Yet a thorough reading of the facts adduced at Claimant's hearing compels this Board to conclude that he was indeed under the influence of intoxicants on May 30, 1975 as charged. Both Patrolman Creesap aad.Supervisor of Track Schmuker testified that Claimant was unsteady on his feet; that his eyes were glazed, that his speech was not good;. and that an odor of alcohol emanated from him.

 Based on the foregoing probative evidence, it is the considered opinion of this Board that Carrier has proven by substantial evidence that Claimant was, in fact, under the influence of intoxicants on May 30, 1975. Moreover, we further find that he was accorded a fair and impartial hearing as required by Rule 21 of the Schedule Agreement.
                  Docket Number MW-21640


In the light of the foregoing serious violations this Board would generally agree with the Carrier that Claimant's dismissal from service was justified. Yet there is one circumstance present in the instant case that compels an opposite conclusion. And that is for the entire period of time that Claimant has been in Carrier's service - some 5 years and 7 months - there has been no discipline assessed against him. This clear discipline record for almost 6 years compels us to find that Claimant's dismissal from service was, in fact, excessive as alleged by the Employes. He should thus be restored to service with the Carrier but without any compensation for the time he has been held out of service.

        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 Agreement was not violated.


                      A W A R D


Claim sustained to the extent indicated in the Opinion of the Board.

                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


        ATTEST: Executive Secretary


        Dated at Chicago, Illinois, this 28th day of January 1977.


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FEB 2 3 1977

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