(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: Baltimore and Ohio Chicago Terminal Railroad Company



A aeraent when on July 16, 1981- itos Carriers service upon Operator-LEVnrm.n C~ Ais Rail& as a result of tion held July 14, 1981, which was improper and unjust, and

 (2) As a result of such impropriety, Carrier shall be required to reinstate Mr. C. A. Rails to his former position with full rights and compensate him for all wages lost commencing July 16, 1981, and continuing until reinstated.

 OPINION OF BOARD: Claimant was employed as operator-leverman on the third
 shift at Carrier's Argo Yard, Chicago, Illinois. On July 6,
 1981, he was notified by the Road Foreman of Engines to attend an investigation
 at 10:00 A.M., Wednesday, July 8, 1981, on charge:





The investigation was postponed at the request of Claimant's representative and was conducted on July 1 , 1981. A copy of the transcript of the investigation has been made a part of the record. Following the investigation, Claimant was notified of his dismissal from the service on July 16, 1981.

        Carrier's Rule "G" reads:


        "G. The use of intoxicants, narcotics, or dangerous drugs by employees subject to duty, while on duty, or on Company property is prohibited.


        The use of any medication, including those prescribed or dispensed by person or persons authorized to do so, that will adversely affect the employee's alertness, coordination, reaction, judgment , vision or gait wh duty or on duty is prohibited.

                        Award Number 24275 Page 2

                      Docket Number CL-24591


        Possession of intoxicants, narcotics, or dangerous drugs or participation in any transaction involving same by employees on duty or on Company property is prohibited."


The Organization makes several procedural contentions, one being that the charge against Claimant was not "precise". It is well settled that if exceptions are to be taken to the charge, or the manner in which the investigation is conducted, suc the investigation; otherwise they are deemed to be waived. We have reviewed the transcript of the investigation and find that no exceptions were taken to the letter of charge or the manner in which the investigation was conducted. The issue may not properly be raised for the first time on appeal.

 The Organization also complains in its submission to the Board that certain witnesses were not called to testify in the investigation. Here again, if the Organization wanted to object because of the lack of the witnesses, such objection should have been raised during the course of the investigation, but was not. In fact, the Carrier contends that such issue was not raised at any time during the handling of the dispute on the property. A review of the correspondence covering the appeal on the property bears out the Carrier's contention in this respect, and the matter may not properly be raised for the first time before the Board on the well established principle that issues and defenses not raised on the property may not be raised before the Board.

 The Organization contends a further violation of theAgreement because the Road Foreman of Engines issued the charge against the Claimant, conducted the investigation, and rendered the decision. As we stated in Award 23114:

        "The Organization also complains because the same officer preferred the charge, conducted the investigation and rendered the decision. We have not been referred to any Agreement provision as to who shall prefer charges, conduct the investigation or render the decision. Furthermore, the procedure complained of has been numerous decisions of this Board."


We find that the Claimant was granted a fair and impartial hearing. In the investigation, the Chief Dispatcher testified that he was called at home about 1:20 A.M., on July 4, 1981 and informed that train dispatchers at Barr Yard were unable to reach the operator at Argo Tower, and that trains were being held up; that he went to the tower, found the door locked, that he called Claimant three times rather loudly and on his fourth attempt he got an answer; that Claimant appeared to have just woke up from a sound sleep, and when Claimant was asked as to why certain trains were standing, he replied that he must have fallen asleep. He further stated that after Claimant had lined up one of the trains, he relieved him from duty. He also testified that Claimant remained at the tower and that he (the Chief Dispatcher) detected the odor of alcohol on Claimant, and that Claimant stated that he had been drinking while at the beach during the day prior to reporting for duty.
                      Award Number 24275 Page 3

                      Docket Number CL-24591


A Lieutenant of the Carrier's Police Department testified that he detected the odor of alcohol on Claimant and that he heard the Claimant make the statement that he had been drinking at the beach.

 In the investigation Claimant admitted drinking beer at the beach during the day and at dinner the night before reporting for duty. When questioned as to the reason for the train delays, he stated that he apparently fell asleep at his post of duty. He also testified:

              56. Would the fact that you drank beer also be the reason you fell asleep?


        A. 56. It must have been."


              66. Did the consummation of alcohol contribute to the fact that you were asleep at Argo Tower?


        A. 66. I believe it must have."


The Organization also advances the contention that Claimant's admitted drinking which prevented him from properly performing his duties should be disregarded because the mat-bar of the use of alcohol came up after Claimant had been relieved by the Chief Dispatcher. We find such contention to be without proper basis. The entire matter came up because of Claimant's failure to properly perform his duties and the reason for such failure. As stated in early Award 2945 and reiterated in Award 19558: "Truth and not technicality should be the controlling factor in making decisions of this kind."

        We find no proper basis for disturbing the action of the Carrier.


        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 Divisicn of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                        A W A R D


        Claim denied.

Award Number 24275

Docket Number CL-24591


Page 4

 NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Third Division

 Attest: Acting Executive Secretary
 National Railroad Adjustment Board

 qB - A -.a- - - '00 ~1

y aZ~

Rose-marie Brasch - Administrative Assistant

 ic X0. Ill
 Date at Cphicago, Illinois, this 31st day of March 1983.