(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Staten Island Rapid Transit Operating Authority

(1) Carrier violated the Agreement between the parties when it suspended Mr. James A. Garefalos from service (without compensation) for the period October 25, 1973 through January 24, 1974, and

 (2) Carrier shall reimburse Mr. Garefalos in the amount of all compensation lost by him during the claim period - October 25, 1973 through January 24, 1974.

 OPINION OF BOARD: Claimant, James A. Garefalos entered the service of
 the Staten Island Rapid Transit Railway Company (SIRT)
 in 1949 and worked for that Carrier as a Janitor from 1949 to 1970. By
 tri-partite Agreement signed by SIRT, the City of New York and the Brother
 hood of Railroad Airline and Steamship Clerks (the.Organization herein)
 on February 5, 1971 the City took over the passenger service operation of
 SIRT. Claimant and some 31 other employes represented by the Organization
 were, pursuant to that Agreement, given the option inter alia to follow
 the work. Claimant elected to follow the work and he transferred all of
 his seniority to the employ of the City. Thereafter, the City established
 an agency known as Staten Island Rapid Transit Operating Authority (SIRTOA)
 to operate the passenger service operation. Thus, Claimant came to the
 employ of SIRTOA (Carrier herein) in 1971 with seniority dating from 1949.

 By hand-delivered letter dated October 29, 1973, Claimant received the following notification:






                              Superintendent"

                    Award Number 21181 Page 2

                    Docket Number CL-20852


Thereafter, an investigative hearing was conducted on October 31, 1973. By certified letter dated November 21, 1973 Claimant received the following information:

            "Dear Mr. Garefalos:


            On October 31st, 1973, pursuant to Notice, I conducted an Investigation and Hearing of allegations of insubordination as set forth in a letter to you dated Following a careful review of the transcript of the Investigation and Hearing, it is my finding that evidence given before me substantiated the charge, and that in your failure on October 24th,.1973 to follow the proper and lawful orders of Assistant Superintendent Ekin, you were insubordinate.


            An evaluation of 'your service record with our Carrier establishes that on two prior occasions known to present management, you were guilty of insubordinate acts identical to that of October 24th, last. On a leni then, and only in final consideration of your years of service with our carrier, do I issue my decision which is as follows:


                  Discipline in the matter herein shall be in the form of a ninety (90) days suspension for the period October 25th, 1973 through January 24th, 1974, inclusive.


            You are cautioned further that your attitude and responsiveness to supervision must hereafter conform to accepted standards of service.


                                Very truly yours,


                                C. H. Bergman /s/

                                Superintendent"


Subsequently the instant claim was filed on December 12, 1973 as follows:

            "Dear Mr. Duszak:


            Please consider this as an appeal from the decision of Mr. C. H. Bergman in the claim on behalf of Mr. J. H: Garefalos for restoration to service of Carrier and compensation fpr all. wages lost during suspension period - October 25, 1973 through January 24, 1974.

                    Award Number 21181 Page 3

                    Docket Number CL-20852


          "T:,e facts in this case are that MIr. Garefalos was charged with insubordination by superintendent C. u. Berg".mn per his letter dated October 29, 1973. Investigation and hearing was held on October 31, 1973 by Mr. Bergman and, under date of Nov. 21, 1973, Mr. Ber~nn assessed discipline of 9o days'suspension from service against Mr. Garefal


          During the formal investigation held on October 31, 1973, Hearing Officer Bergman encouraged and allowed the introduction of records from another Carrier (P&a obviously violative of the 'fair and impartial' requirements of Rule 47 of our Agreement.


            The,service of Mr. Berg~nn as prosecutor, judge and jury

          further precluded arty opportunity of a fair and impartial inves

          tigation, and his action in making the charges, holding the hear-

          ing and rendering the decision against Mr. Garefalos in this case

          caused a violation of the Agreement.


          In view of these violations of Rule 47 of the Clerks' Agreement, it is respectfully requested th Authority with compensation for all time lost during his period of suspension.


                  ' Very truly yours,


                                    E.- J. Reynolds /s/"


The claim was denied on the property and appealed by the Organization to. our Board for disposition.

 As alluded in the quoted co-crespondence supra an incident occurred between Claimant and Mr. C. !,1f Ekin. Carrier Assistant Superintendent, on the morning of October 24, 1973 at $t. George Terminal. _ T unrefuted record shows that part of Claimant's duties as Janitor at St. George Terminal ryas to clean "Tower B," including the qarmen'e locker room. In this connection, a 4chedule, of janitorial assignments showing duties of Clai-:pant and three other janitors was circulated November 21, 1971 by Assistant Sunerintendent Ekin.. At approximately 9·30 A.M. on October 24,1973 Ekia, issued instructions to Claimant, through a Crew Dispatcher, to clean Tower B. Claimant did not clean the tower. Ekin, next issued a direct order to Claimant to clean the tower. Claimant replied in words or substanc Ekin thereupon suspended Claimant from service. Approximately one-half hour later Claimant returned and handed Ekin a note reading as follows:

                                "OCTOBER, 24th ,1973


          C. W. EM

          ASST SUPT

          S.I.R.T.OA

                    Award Number 21181 Page 4

                    Docket Number CL-20852


            "DEAR SIR:


                  I'M VERY SCARY I CANNOT DO THE WCHK YOU


            ORDERED ME TO DO TODAY ACCT OF STOMACH PAINS.


            I CANNOT STRAIN MYSELF ANY MORE THAN I HAVE ALREADY TTffS


            MORNING.


                              JAMES GAREFAOLIS /s/


                              JANITOR ST.GEORGE & VARIOUS Gam


            P.S.


            A.TORREGROSSA REQUESTED TO TYPE THIS MEMO ACCT INCUMBENT CANNOT WRITE IN ENGLISH."


A98i$t$nt Superintendent Ekia instructed Claimant to report to the Company physician's office at 2:00 p.m. The record is in conflict as to whether Claimant presented himself as directed. In any event he did not see the doctor. At the hearing Claimant testified that he consulted his own family doctor because the Corm doctor "didn't'show up." Claimant presented a certificate from his own doctor dated October 24, 1973 which carries the statement "...gastroenteritis from 10/25/73." Claimant apparently reported to St. George Terminal on October 25, 1973 but was not permitted to work. Thereafter, the hearing described above was conducted and Claimant was assessed 90 days actual suspension for the period October 25, 1973 through January 24, 1974.

 The Organization protests the discipline on several grounds to wit: ,1) Failure of Carrier to provide a fair and impartial investigation pqr Rule 47 of the Agreement because the same Officer conducted the hearing and assessed the discipline. 2) Prejudicial introduction of Claimant's past discipline record at the hearing and investigation, 3) Mitigating circumstances of Claimants illness on October 24 justify his refusal to perform the work in question and 4) The ninety days of discipline was excessive in the circumstances.

 It is well known that our jurisdiction in discipline cases is limited to a review of three factors, 1) Whether Claimant was afforded a fair investigation 2) Whether substantial evidense supports the finding of culpability and 3) Whether the euantum of discipline imposed was excessively harsh, arbitrary or unreasonable. W record herein in light of these standards. In our considered judgement
                  Award Number 21181 Page 5

                  Docket Number CL-20852


there is no evidence that Rule 47 was violated or that Claimant was denied a fair and impartial hearing and assesses the discipline. It has been often stated that employes discipline should have b fairness and impartiality. But we cannot find on record any overt evidence of bias or prejudice to C hold that the combination of roles, solely and without more, was per se violative of Rule 47. Nor can we concur with the Organization's assertion that introduction of Claimant's past discipline,record at the investigation deprived him of a fair h finding of culpability and Claimant's arguments in mitigation simply are not credible or persuasive. In such situations vast discipline records properly may be introduced relative to determining the amount of discipline to be assessed for a proven instant infraction. It perhaps goes without saying that past discipline may not be used directly or inferentially to establish present guilt. In any ev past discipline record was so used in this case. And it is specious to argue that his prior discipline was immaterial because from "another Carrier" wherein the record shows 24 years of uninterrupted service for essentially the same managerial entity and under one labor Agreement with change of ownership marked only by a change of title so far as Claimant was concerned. That prior record shows that Claimant was disciplined with progressive severity twice before for the same offense of which he was found culpable in the instant case. Thus, in 1970 Claimant was suspended for five (5) days for refusing to clean Tower B and in 1971 he was dismissed (but later reinstated) for refusing to clean certain offices and facilities. The entire record supports the conclusion that Claimant received a fair investigation: that he refused to perform a reasonable order of his authorized Superior, without demonstrable mitigating circumstances; and, that the disci in all of the circumstances. Accordingly, the claim must be denied.

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


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes the Railway Labor Act, as approved June wl, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.

                      Award number 21181 Page 6

                    Docket Number CL-20852

                    A W A R D


        Claim denied.


                          NATIONAL RAILROAD ADJUSTMENT BOARD

                          By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 13th day of August 1976.