PARTIES ) BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES
 TO ) and
 DISPUTE ) BURLINGTON NORTHERN RAILROAD (Former Fort Worth
 and Denver Railway Company)
 STATEMENT 1. That the Carrier violated the provisions of
 OF CLAIM: the current Agreement when it dismissed Trackman
 M. J. Berry from its service commencing September
 2, 1982, based on charges not substantiated by
 the testimony adduced at the investigation, said
 action being in abuse of discretion and unwarranted.
 2. That Claimant M. J. Berry be reinstated to the
 service of the Carrier with all wage loss suffered
 restored, including overtime, and with seniority
 rights and all other righ is restored unimpaired.
 FINDINGS: By reason of the Memorandum of Agreement signed
 November 16, 1979, and upon the whole record and
 all the evidence, the Board finds that the parties herein are employe
 and Carrier within the meaning of the Railway Labor Act, as amended,
 and that it has jurisdiction.

 Trackman M. J. Berry, an employee of this Carrier with seniority date of October 30, 1980, was notified of his dismissal from service by letter dated September 27, 1982, reading: "This is to notify you that you are hereby dismissed from the ser vice of the Fort Worth and Denver Railway Company for violation of Rules 565 and 566 of the -Burlington Northern Safer= Rules.on September 2, 1982 while assigned as Track Laborer on Extra Gang 1, working in the vicinity of Herman, TX, as evidenced by a formal investigation afforded you at Fort Worth, TX on September 10, 1982."
 PLB - 2529 AWARD NO. 20 (page 2)
 CASE NO. 27
 Burlington Northern Safety Rule 565 reads:
 "The use of alcoholic beverages, intoxicants,
 narcotics, marijuana or other controller sub
 stances by employees subject to duty, or their
 possession or use while on duty or on Company
 property, is prohibited."



The evidence of record is clear and undisputed that certain objective facts existed on the morning of September. 2, 1.982, about 9:00 A.M., on the basis of which the Carrier determined that the Claimant was under the influence of alcoholic beverage.

Claimant testified: "I told Mr. Hancock that we had had a couple or three beers the night before. That if he smelled anything on me that it was from the night before and not that morning."_(Tr., p. 21).

 Assistant Foreman Elvin Bowens, Jr. testified: "I smelled the fragrance of alcohol on his person. The Foreman, at the time, Mike Garrett, noticed it before I did and asked me would I verify, would I see if I smelled alcohol on the man because he didn't want to do anything to impute the man on his word alone. I walked up to and talked to the man and smelled the alcohol very strongly..." (Tr., pp. 3-4.)

 Assistant Roadmaster Donald R. Hancock testified: Claimant "smelled of alcohol." (Tr., p. 5) "I asked him had he been drinking. He said he hadn't, that he had been drinking quite a bit the night before but that he hadn't been drinking that morning on the job." (Tr., p. 5). The testimony of co-worker, Trackman H. R. Jones, in response to the question, "Did you notice an alcohol smell on the breath of Mr. Berry?" was "No Sir". (Tr., p. 13), while this question was not asked of Trackman S. A. Beasley.
PLB - 2529 AWARD NO. 20 (page 3)
 CASE NO. 27

Assistant Foreman Bowens testified: "...the condition he was in when he reported for duty, yes, he was staggering.
 ..I walked up to and talked to the man and smelled the alcohol very
 strongly, and his eyes were blood shot and he was staggering. He
 sit down by the water can for approximately 5 minutes, sit down by
 the water can. I'm not a doctor, I can't say what his condition was
 other than if it was me, I'd say I was pretty tight." (Tr., pp. 3-4).

 Assistant Roadmaster Hancock testified that Claimant "was stumbling around the tracks...". (Tr., p.5).

 The testimony of Trackman Beasley, in response to the question, "Did you notice any unexcusable loss of balance or staggering of Mr. Berry?", was "No, sir. No more than anyone else." Trackman Jones, asked the question, "Was Mr. Berry uneasy on his feet or staggering for any reason, such as intoxication?", answered: "No sir."

 The testimony of Mr. Beasley, "No more than anyone else" implies that stumbling may have occurred and may have been correctly observed as such by Messrs. Bowens and Hancock, even though this may have been common among the employees as a consequence of the terrain or ballast. The statement by Mr. Jones: "If any staggering was done it would have been (from the terrain or ballast) because he didn't appear to be intoxicated to me...". (Tr., p. 14), in context with the statements of the other witnesses, does not negate the testimony of the other witnesses that Claimant staggered.

 The testimony of Mr. Hancock that Claimant "sit down by the water can for approximately 5 minutes, sit down by the water can", is undisputed.



Assistant Foreman Bowens testified: "The man's eyes were red and very blood shct." (Tr., p. 3). Assistant Roadmaster Hancock testified: "...and when I went to talk to him his eyes were bloodshot." (Tr., p. 5). Trackman Beasley responded, "Not that I could tell" to the question, "Was Mr. Berry's eyes abnormally blood shot out there that morning?" (Tr., p. 11). Trackman Jones, asked: "Did you notice whether Mr . Berry's eyes were blood shot or
 PLB - 2529 AWARD NO. 2(D (page 4)
 CASE NO. 27

 or not?" answered: "I didn't. I never noticed." (Tr., p. 13). The responses, "Not that I could tell" and "I never noticed" are, at best, a weak contradiction to the testimony that Clairant's eyes were "red and very blood shot".

 It is, of course, quite possible that dust kicked up in the work setting may have gotten into Claimant's eyes, and ballast dust might cause one's eyes to redden; but the testimony that Claimant's eyes were blood-shot is not disputed.

 The Board finds that Claimant's eyes were bloodshot.

 The transcript of the investigation includes the following questions, answered to by Assistant Roadmaster Hancock:














The testimony of Claimant regarding the trip to the Clinic for theblood test is as follows:










PLB = 2529 AWARD NO. 20 (page 5)
 CASE N0. 27
 Q. Where were you taken for your blood alcohol test?
 Was this the purpose you left the property with Mr.
 Hancock, to take this test?
 A. It was my understanding. We went to the Decatur Clinic.
 Q. Why didn't you take the test?
 A. Donnie asked the nurse about a blood alcohol test. I
 can't remember her exact words. She said something
 about the hospital would have to wait for the results.
 Q. Then, what did Mr. Hancock say?
 A. He asked me to wait for him. Then he got on the phone
 to talk to someone.
 Q. Then what happened?
 A. I sat there for almost an hour. He came and got me
 and took me back to my car, and never said a word to
 me other than he took me out of service for violation
 of Rule G. I asked him about the blood alcohol test and
 he said he didn't have to give me one. He just needed
 two witnesses." (Tr., pp. 18-19).

 The evidence of record is clear that Mr. Hancock initiated the effort to obtain the blood alcohol test. Claimant did not request the test. The effort to obtain the blood alcohol test was dropped by Mr. Hancock because of the time delays involved. The dropping of the effort was not protested by the Claimant nor did he make a request at the time to be given the blood test.

 The Board is mindful of Special Board of Adjustment 589 Award No. 44, the Brotherhood of Railway Trainmen vs. Pennsylvania, Referee Siedenberg, in a Rule G case, cited by the organization herein in support of Claimant, wherein it was held that "the Carrier committed prejudicial error when it refused to accede to Claimant's request that he be examined by a physician to determine whether he had been under the influence of alcohol while on duty. The Board holds that the charge of violating Rule 'G' is so grave a matter in this industry that the parties should attempt to get, where feasible, not only competent but also the best evidence as to the truth or falsity of the charge." What the Board stated in Award No. 44 makes good sense. In the instant case, however, as noted above, Claimant did not make a request upon the Carrier for a blood-alcohol test nor was such request denied. The Carrier here did not commit prejudicial error.

 Considering the evidence of record as a whole, the evidence establishes clearly that Claimant had blood-shot eyes, smelled of alcohol, and stumbled and staggered. The existence of all of these
 PLB - 2529 AWARD NO. 20 (page 6)
 CASE NO. 27
facts in the circumstances and evidence of record fully warrants the Carrier's dismissal of Claimant.


          1. The Carrier is not in violation of the Agreement.

          2. The claim of M. J. Berry is denied.


                          r


            JOSEPH LAZAR, CHAIRMAN AND NEUTRAL MEMBER


C.
C. F. FOOSE, EMPLOYE MEMBER B. J. MASON, CARRIER MEMBER

        DATED: s _ ,~,.~ : ~a ?5" t: