Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28477
 THIRD DIVISION Docket No. MW-28624
 90-3-88-3-461
 The Third Division consisted of the regular members and in
 addition Referee Herbert L. Marx, Jr. when award was rendered.

 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The dismissal of Track Laborer U. Medina and Machine Operator R. Santoyo for alleged violation of Rule 'G' on December 1, 1987 was arbitrary, capricious and on the basis of unproven charges (Carrier's File P/R U. Medina and P/RR. Santoyo.

 (2) The Claimants shall be reinstated to service with seniority and benefits unimpaired, their records cleared of the charges leveled against them and they shall be compensated for all wage loss suffered."

 FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

 Parties to said dispute waived right of appearance at hearing thereon.

 Roberto Santoyo and Urbetino Medina, the Claimants herein, were dismissed from service on Decemb of Rule G "by having in your possession in your locker two cans of beer, and by consuming beer at lunch." Medina was charged with violation of Rule G "by testing positive on Alco-Sensor III and RBT-III [testing for alcohol] programed printer and by consu 1987."


Form 1 Award No. 28477
 Page 2 Docket No. MW-28624
 90-3-88-3-461
 Employees must not report for duty under the influence
 of any alcoholic beverage, or impaired to any degree by
 alcoholic beverages."
 Rule 42 provides for employees who are suspended or dismissed the
 right to a "fair and impartial hearing" provided that written request is made
 within seven days of the discipline. Such request was made in timely fashion,
 leading eventually to consideration by the Board.

 The Carrier's Police Department reported that it had received a telephone call that Track employees "were about to partake in the drinking of alcoholic beverages."

 Two police officers went to the vicinity of the Labor Camp Building. They observed Claimant Medina go to his car, remove a brown paper bag and return to the Labor Camp Building. (The brown paper bag was later found in Medina's locker. The bag contained two ice-cold bottles of beer.)

 The police officers entered the building and found cans of beer in the vicinity where the two Claimants were sitting. The Claimants were then directed to take a test to measure intoxication. Medina tested positive, while Santoyo tested negative. According to police testimony, both men admitted to having beer with their lunch.

 Most of the evidence in this matter is circumstantial. Neither employee was observed drinking beer. As to "possession," this is limited to the discovery of the brown bag and the observation of cold beer cans within reach of the Claimants. The Board finds, nevertheless, that the Carrier logically determined that the Claimants had violated Rule G as to possession and use of alcoholic beverages while on the Carrier's property.

 As to severity of discipline, the Carrier reviewed the disciplinary records of the Claimant. Medina had been dismissed from service twice and then reinstated on a leniency basis. One of these reinstatements was less than six months before the December 1, 1987 incident. Santoyo had also been dismissed twice before and returned to work on the basis of leniency.

 With these records, the Board has no basis to question the Carrier's determination that dismissal is the appropriate penalty.




                            By Order of Third Division


Attest: i
 ~Nancy J. er - Executive Secretary

 Dated at Chicago, Illinois, this 7th day of August 1990.