quent dismissal by letter dated March 14, 200$) imposed upon Mr. J. Frazier, Jr. in

connection with charges of possible violation of CSX Operating Rules - Rule G and

CSX Safeway General Safety Rule - GS-2 Substance Abuse and a charge of possible

violation of his November 27, 2006 Substance Abuse Contract, in regard to a

Company Short Notice Follow-Up alcohol breath test on October 22, 2007, was

unjust and in violation of the Agreement.

PUBLIC LAW BOARD NO. 7163 AWARD No. 88 PAGE 2 reported for work on Monday, October 22, 2007, he was directed to submit to an alcohol breath test in accordance with conditions imposed upon him as part of a prior Rule G bypass agreement. The results of this test were positive, with readings of 0.179 at 6:08 am and 0.174 at 6:25 am. As a result, Claimant was removed from service and directed to attend a formal investigation. Following the investigation, Claimant was dismissed from service.

Although Claimant testified that he had used Listerine before reporting for work, he did not dispute the test results. He acknowledged that he had been drinking the night before, but said he had stopped drinking at 8:00 or 9:00 pm and then drove 400 miles from Charleston to the work site, arriving between 3:30 and 4:00 am. Claimant did not believe he intoxicated because he was not staggering or slurring, and did not get into an accident or arrested for DUI.

We are satisfied that the Carrier has produced substantial evidence to support its charge against Claimant. Even if he had used Listerine right before taking the test, it is highly unlikely that such use would have resulted in such a high reading unless he ingested a large quantity of it. The record reflects that Claimant had been found to be under the influence of alcohol on November 1, 2006, which resulted in his electing the earlier Rule G bypass. Claimant entered a rehabilitation program and returned to work in May 2007. This second offense came only six months after his return. We are troubled by Claimant's suggestion that he might have developed a tolerance for alcohol. This would imply that Claimant believed he could drink without any obvious symptoms. If his rehabilitation were successful, he would have known that he could not drink at all.

In addition to the fact that Claimant came to work with alcohol in his system twice in a relatively brief period of time, we note that his discipline record also shows he was dismissed from

PUBLIC LAw BOARD No. 7163 AW ARD No. 88 PAGE 3 service in 1995, although the reason for that action or its duration are not evident from the record. Despite the fact that Claimant had nearly 35 years of service at the time of this incident, we are not inclined to modify the discipline imposed by the Carrier in this case.

~ arrj Simon