Claimant reported to his work station on the morning of May 25,

1984, shortly after 7:00 a.m. His hand was cut and bleeding, and

he advised his Foreman that he wanted to work part of the day,

and then seek medical attention. The Foreman refused to allow

Claimant to work, and told him that he should leave in any event,

because he "smelled like beer." Claimant persisted, and the

Foreman referred him to the Track Supervisor. The Track Super

visor also declined to allow Claimant to work before seeking-

medical attention, but indicated that "if the doctor says you can

work, okay, you can work." Claimant persisted, and asked to call

the Roadmaster.

Claimant talked with the Roadmaster on the telephone, and the

Roadmaster agreed to send the Assistant Division Engineer to the

site to handle the matter. When the Assistant Division Engineer

arrived, the Claimant again insisted that he be allowed to work,

and the Assistant Division Engineer declined and asked Claimant

if he had been drinking. Claimant denied that he had been drink

ing, but agreed to take a medical test to determine the facts.

when Claimant and the Assistant Division Engineer stopped at the Assistant Superintendent's office to pick up the necessary forms, the Assistant Superintendent talked with the Claimant, and asked if he had been drinking. Claimant said "no, I never drink." The Assistant Superintendent relieved Claimant from service pending a Formal Investigation, and Claimant became angry and argumentative with the Assistant Superintendent. He did, however, agree to a medical examination, and went with Assistant Division Engineer Green to the Hospital: The record is not clear with respect to what happened at the Hospital; however, it is clear that the test was not completed, and the results were not made a part of this record.

At the Investigation, the foregoing facts were developed. In addition, it was disclosed that Claimant had "called-in" during the night, reported his injury, and indicated that he would not be reporting to work on that day. Further, the Foreman, Track Supervisor, Assistant Division Engineer and the Assistant Superintendent testified that they observed the odor of alcohol on Claimant, that his eyes were "glassy", his gait was unsteady, and

that he was not very coherent. They testified that Claimant told some of them that he "never drank alcohol", while he told others that he had been drinking the previous day.

Claimant's testimony was vague and inconsistent, and often in conflict with the version of facts presented by the Carrier witnesses. In the face of the consistent, positive testimony of the four Carrier witnesses, we must resolve the conflict in favor of the Carrier.

The organization raises two defenses, both of a technical nature. It argues that carrier's action was improper because it failed to produce the results of the urinalysis test, and that Claimant was not "on duty" when the circumstances occurred. The first point raises very grave concerns, and the Board feels strongly that if a medical test is performed, the results must be produced and made a part of the record. Failure to produce the results of such a test deprives both the Organization and the Board of evidence which clearly is relevant to the dispute, and, in fact, creates suspicion that the results support Claimant's position.

In this case, however, the record indicates that the test was not performed. Therefore, the test and events which surrounded the test have not. been considered by the Board. The record contains ample other evidence that Claimant was under the influence of alcohol.

The organization's second defense, that Claimant was not on duty at the time, is irrelevant to this dispute. Claimant was charged with violation of Rule 6 of the Carriers General Rules for the Guidance of Employes, which provides in part:

The use of alcoholic beverages, intoxicants or narcotics by employes subject to duty, or their possession or use while on duty, or on Company property is prohibited. Employes must not report for duty under the influence any drug, intoxicant, medication or other substance . that will in any way adversely affect their alertness, coordination, reaction, response, or safety . . . .

The Claimant does not deny that he was reporting to work, in fact, the undisputed facts show that he made persistent attempts to report for duty to the Foreman, the Track Supervisor, and the Assistant Division Engineer. Each attempted to persuade Claimant

to go and seek medical attention, and if he had done so, it is

likely that none of this would have transpired.

J aR 14=son, Chairman