(Brotherhood of Railway, Airline and ( Steamship Clerks, Freight Handlers, ( Express and Station Employes PARTIES TO DISPUTE: (Southern Railway Company

(a) Carrier violated the Agreement at Birmingham, Alabama, when it dismissed Mr. R. L. Anthony from the service of the Carrier for alleged failure to timely protect his assignment, for allegedly reporting for work under, the influence of alcohol and alleged conduct unbecoming an employe.
with seniority and all rights unimpaired and compensated for all time
 lost beginning May 31, 1976, and continuing five (5) days per week
 until restored to the service and fully compensated for all loss.

 OPMON OF BOARD: The Claimant R. L. Anthony has a seniority date
 of January 10, 1975. Consequently, when
 Mr. Anthony was relieved from service on the night of May 31, 1976, he
 had approximately 16 months of service with the Carrier.

 It is clear that the Claimant did not arrive at work at 12:00 p.m. on May 31, 1976, as scheduled. The Claimant testified that the reason for same was that he had fallen asleep in front of his TV set after having consumed some beer. Mr. Anthony received a call from Mr. Sassevflle, Extra Board Clerk, to summon him to work, and the Claimant arrived on the job 28 minutes after his assigned starting time. At that time, a Special Agent of the Carrier's Police and Special Service Department detected the odor of alcohol on Mr. Anthony's breath.

 Subsequently, Mr. Anthony launched a torrent of profanities and obscenities in the presence of Mr. Sasseville. A few minutes later, the Claimant apologized to Sasseville, explaining that he thought that Sasseville had turned him in, but realized that he had not. At approximately 1:00 a.m., the Claimant confronted Mr. Bowen, a management official, and addressed him in a derogatory and obscene manner. Mr. Anthony testified that he does not usually use obscenities, and that he particularly does not direct such words toward persons with whom he convrraes.
                  Docket Number CL-22256


As a result of a review of the above incidents, the Claimant agreed to take a sobriety test at St. Vincent's Hospital. The test, which was administered at 2:25 a.m., over three hours from assigned starting time, showed Mr. Anthony's blood alcohol content to be .05%. It was established that an alcohol content of .Ol% is normal, while a content of .17 suffices to establish that a person is under the influence of alcohol for the purposes of establishing intoxication under Alabama law.

 The Carrier acted against this Claimant on the basis of Rule G of the Operating Rules, which became effective March 10, 1972, and reads as follows:

        "An employee who reports for duty under the influence of alcohol or other intoxicant, an amphetamine, a narcotic drug, a hallucinogenic drug, or a derivative or combination of any of these, or who uses any of the foregoing while on duty, will be dismissed. Use of or being under the influence of any of the foregoing while on Company property or equipment is cause for discipline."


The Union has argued that the use of beer while watching TV during off-duty hours should not be a basis for discipline or discharge. With that general proposition, the Board would generally agree. What an employee does during his personal time is clearly his own business, and the Carrier should not ordinarily be concerned with activity not directly related to the performance of duties during working hours.

 The problem, of course, is that when mind altering substances, such as described in Rule G, are consumed during non-working hours, the mind and body of the employe can became affected, and such effects can continue into scheduled work periods. Such instances, of course, may legitimately become the concern of the Carrier, because work performance may be affected, even though the prohibited substances were used before working hours.

        The Union also makes the argument that the consumption of

beer is legal in Alabama, and that such consumption prior to work
 should not be a `r se basis for discharge or other discipline. The
 Board is constrained to accept the validity of that argument in cases
 where the evidence is clear that an employe did not report to work
 under the influence of alcohol, To ci£e an extreme example, it would
 not be right to discharge an employe for reporting to work after having
 had one beer with his dinner several hours prior to the start of his
 shift, where the employe's appearance and behavior are essentially
 normal.
                  Award Number 22249 Page 3

                  Docket Number CL-22256


But the evidence in this case conclusively demonstrates that the Claimant's situation is not within the scope of the minimal or inconsequential drinking prior to work, which is excusable. In the first place, the Claimant himself admitted that he had consumed beer while watching T9 just prior to work. Upon his arrival on the job, he smelled of alcohol. More than two hours subsequent to the start of the shift, a sobriety test established that a substantial amount of alcohol was present in the Claimant's blood. Although Mr. Anthony was not legally intoxicated by Alabama driving standards, it is clear that he had an amount of alcohol in his body that was discernably above normal, and it must be assumed that administration of the test immediately upon his arrival at work, would have established an even higher level of alcohol.

 Perhaps even more indicative of the Claimant being under the influence of alcohol on the night of May 31 was his abnormal behavior. The extreme use of profanity and obscenity on the job is in itself undesirable behavior, but in the instant case it serves to point up that the Claimant was not in a normal state of mind. The Claimant himself testified that he never curses out people, so that his performance on the night in question can only serve to corroborate the fact that he was under the influence of alcohol.

 All of the above thoroughly constitutes overwhelming evidence that Claimant Anthony was guilty of a violation of Rule G as charged. The heavy evidence, coupled with the Claimant's short tenure, established that the Board should not substitute its judgment for the Carrier's discretion in this case.

 FINDINGS: The Third Division of the Adjustment Board, after giving
 the parties to this dispute due notice of hearing thereon,
 and upon the whole record and all the evidence, finds and holds:

 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.

                  Award Number 22249 Page 4

                  Docket Number.CL-22256

                  A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST: alfl, P44/0-12-0
        Executive Secretary


Dated at Chicago, Illinois, this 14th day of December 1978.

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