PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
1. The eighteen (18) days of suspension imposed upon Assistant Track Foreman S. Gildart for alleged violation of Rule 'G' was without just and sufficient cause, on the basis of unproven charges and in violation of the Agreement (System File NIRCRC-D-1115/08-13-43R).

 2. The claimant's record shall be cleared of the charges leveled against him and he shall be compensated for all wage loss suffered."
OPINION OF BOARD: By letter of September 30, 1983, the Claimant was notifie by the Carrier to attend a formal Hearing on his alleged
 violation of Rule "G". The Hearing was held on October 6, 1983. Following
 the Hearing the Claimant was found guilty and assessed an 18-day suspension by
 notice dated October 14, 1983.

 The Organization argued on the property that the Carrier violated Rules 17 and 18 of the Agreement and in addition, failed to prove the charges against the Claimant. Those Rules read in pertinent part:



The Organization appealed based upon the fact that the notice dated October 14, 1983, "was back-dated to read such date, when in fact, such was not completed until Octob notice on October 18 and the General Chairman received his postmarked by
                      Docket Number MW-26284


machine on October 18 and by the post office on October 22, 1983. As such, a decision was not rendered within ten (10) days as required by Rule 17. The Organization noted in its December 8, 1983, appeal that neither the Claimant nor the General Chairman had been presented a copy of the Transcript. As the decision was made without reviewing a typed copy of the Hearing, the action taken against the Claimant was unfair and unjust.

 It is the Carrier's position that Claimant was notified of the decision within ten days. The Car 14, 1983, and that Claimant refused to sign it. It also notes that the Claimant returned to work on to the discipline and decision. As Rule 17 only states that the decision will be rendered within ten days and written decisions are not required, the Carrier has complied with th
As for Rule 18, the Carrier notes that the Hearing was taped and the Rule clearly states that the Transcript "when taken in writing will be furnished." Since the Transcr are required, no violation occurred. The Carrier further maintains that the Transcript was mailed to the Organization and a second copy was sent when the Organization indicated non-receipt. In addition to denying procedural violations, the Carrier argues
This Board has reviewed the record in the instant case. The procedural issues raised by the Orga not rebutted on the property that the Claimant returned to work on October 17, 1983. As such, the decision was submitted in some manner to the Claimant. There is nothing in Rule 17 that requires a written decision. Carrier acts at its own peril in such cases to prove, as it has here, that the decision was rendered.

 With respect to a Transcript of the Hearing (Rule 18), the Rule does not include a time limit. In the interest of appeal, such Transcript might be necessary and significant for the organization. Nowhere on the property do we find any argument by the organization that the appeal was hampered, impeded, or the rights of the Claimant prejudiced. There is nothing on the property to indicate that the Organization requested an extension based upon the lack of a Transcript. Finding no arguments that the rights of the Claimant were prejudiced and no violation no argument must be denied.

 As to the Claimant's guilt, the Carrier must document such charges by clear, convincing and strong probative evidence. In the case at bar the Claimant admits that he was talking low and holding his head down because he knew his breath smelled. He admits to having alcohol, but states it was many hours earlier. Four Carrier witnesses smelled it on his breath and one of them at three feet away. Two Carrier witnesses indicated that he had slurred speech. One witness noted "a slight swaying motion, and his eyes appeared to be bloodshot and watery." At the time of the incident the Claimant never discussed, debated or claimed that he had failed to brush his teeth or indicated that he was insisti probative evidence in the record of the Claimant's guilt. As such, the Organization's Claim must be
                      Award Number 26358 Page 3

                      Docket Number MW-26284


        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 denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


At test:

      Nancy J. D_ver - Executive Secretary


Dated at Chicago, Illinois, this 8th day of June 1987.