(Brotherhood of Railway, Airline and Steamship Clerks (Freight Handlers, Express and Station Elnployes PARTIES TO DISPUTE: (The Belt Railway Company of Chicago

1. Carrier violated the effective Telegraphers' Agreement when, following an investigation held J. Kwiat fran service effective February 5, 1985, without just cause;

 2. Carrier shall now restore Mr. Kwiat to service with his seniority and all other rights unimpaired; shall compensate him for all time lost as a result of this dismissal from service; and shall clear his record of the charges placed against him."

 OPINION OF BOARD: Claimant, a Leverman in Chicago, Illinois, was dismissed
 from Carrier's service effective February 5, 1985, follow
 ing an Investigation held on January 24, 1985, into the following charge:

Carrier argues that sufficient evidence of a probative nature was brought forth at this Investigation to support the finding of guilt and that Carrier's handling of the case on the property was procedurally correct. Claimant was properly notified of the Hearing. The Hearing was postponed at the request of the Organization. Further, the Chief Dispatcher was the proper officer to render a decision on the case.

 Carrier alleges that Claimant offered no convincing evidence of mitigating circumstances to supp his failure to advise Carrier beforehand were for reasons beyond his control. Given Claimant's past record, the discipline of dismissal is not arbitrary or capricious.
                        Docket Number CL-26630


The Organization argues that Claimant was denied a fair and impartial Investigation because the individual who conducts the Investigation must be the one who renders the decision. Claimant was not discharged because of his absence on December 14, 1984, but because he had undergone a drug detoxification program. The reason ill child. Claimant should be restored to work with full backpay and with his seniority and record intact.

 This Board has reviewed the record of this case and concludes that while there was sufficient evidence of a probative nature at the Investigation to sustain Carrier's charge, the discipline imposed was more than what was required in this instance to impress upon Claimant the need to improve his attendance and to notify Carrier in a timely fashion of absences from work. In reaching that conclusion, we agree with the organization that Claimant's past involvement in a drug detoxification program was not germane to this charge. At the same time, we find that Claimant was afforded all procedural rights guaranteed by Agreement, receiving a full and fair Hearing.

 Because of Claimant's proven guilt, we are returning him to work with seniority and all other rights unimpaired, but without backpay. Because Claimant was marked off ill from December 20, 1984, until his dismissal on February 5, 1985, it is appropriate that his reinstatement be contingent upon his passage of a physical.

        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 Pct as approved June 21, 1934;

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

        That the discipline was excessive.

                        Award Number 26188 Page 3

                        Docket Number CL-26630

                        A W A R D


        Claim sustained in accordance with the Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By order of Third Division


Attest

        Nancy J. Dever - Executive Secretary


Dated at Chicago, Illinois, this 24th day of November 1986.