PARTIES Brotherhood of Maintenance of Way Employes
 _TO and
 DISPUTE Burlington Northern Railway Company
 STATEMENT
 OF CLAIM " 1. The dismissal of section-man Jerry
 Weatherly for alleged violation of
                    general rule 702 ...."for your failure

                    to report for service as section-laborer

                    at Pingree, No. Dakota, on December

                    23, through December 31, 1980" was

                    unreasonable and excessive.


                  2. The claimant shall be reinstated-with

                  seniority and all other benefits unimpaired

                  and he shall be compensated for all

                  wage loss suffered."


FINDINGS
Upon the whole record, after hearing, the Board finds that the parties herein are Carrier and Employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted under Public Law 89-456 and has jurisdiction of the parties and the subject matter.

 The record reveals, and claimant admits, that he was absent without authority on DEcember 23, 26, 29, 30, and 31st of 1980. He was not scheduled to perform service for the days i+etween, namely December 24, 25, 27 and 28, 1980. Two other facts of the record are relevant to this matter. First, the claimant
 had been severely disciplined for an identical infraction within the past calendar year prior to this matter. The second fact is the reason for his absence in this particular circumstances. It appears that the claimant had been incarcerated for driving while intoxicated for 30 days and hence was unable to report for work on the days in question. The fact of the matter is that he did not report for work until January 19, 1981, the date of the investigation.

 The record reveals no improprieties with respect to the handling of this matter on the property or in the investigation. The claimant was accorded a fair and impartial investigation and found to be guilty of the charges. The only defense mounted by Petitioner is that the penalty involved herein was harsh and excessive under all the circumstances. The Board does not agree. Considering the claimant's relatively short tenure and the fact of a prior disciplinary circumstance identical to that herein, Carrier was correct in its conclusions. Furthermore, it is well established that an incarceration is not a valid excuse for failure to protect an assignment. Since failure to appear for work is a serious offense in this industry and clearly in view of the circumstances, claimant was guilty of this infraction, the penalty of dismissal was not excessive and must be affirmed. The claim must be denied.
                                                3ylob-ha

                                                -3-


AWARD
          Claim denied.


              I.M. Lieberman, Neutral-Chairman


W. Hodynsky, rrie Member F.H. Funk, Employee Member

 St. Paul, Minnesota

 December /~I .1986