(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: (Chicago, Milwaukee, St. Paul and Pacific Railroad Company

1. Carrier's action in suspending employe J. W. Witte from actual service for ninety (90) days was arbitrary, unreasonable and unjust. The penalty assessed ;ass harsh, excessive and out of all proportion for an employe who was tardy for 20 minutes and made an honest mistake.

 2. Carrier shall be required to clear the record of employe J. W. Witte, and compensate him for all time lost.

 OPINION OF BOARD: Following an April 3, 1974 hearing, the Claimant was
 Following guilty of charges (1) that he had improperly
 performed his clerical duties on March 2, 1974; and (2) that he hac: failed
 to protect his assignment on March 5, 1974. Based on such findings of Suilt,
 and a review of the Claimant's past record, the Carrier disciplined tae
 Claimant by actual. suspension of ninety (90) days

 The Organization appeals the discipline on the grounds: (1) that the pre hearing charge was defective; (2) that the facts established in the hearing record do not prove the charges alleged; and that the discipline imposed was of unreasonable severity in relation to all the facts of record.
and thus the Organization's first objection is not supported by the record.
 With regard to the merit question in the Organization's second point, the
 hearing record contains sufficient facts and evidence to support the findings
 of guilt. On March 2, 1974, the Claimant made sixteen (16) mistakes in check
 ing sixty~x (66) cars, which is an error rate.approaching 24%. This fact
 demonstrates improper performance of his clerical duties and affords substan
 tial evidence to support the first count of the charges. The record also
 reflects that the Claimant asked his wife to phone management to say that he
 would be late on March 5, 1974 for his 7:00 A.M. assignment, but that she did
 not call until 7:31 A.M. When the Claimant reported for duty at 7:20 A.M.,
 management had ordered his job to be filled by another employe: Accordingly,
 the record contains substantial evidence to support the se oz count of the
 charges.


However, there is merit in the Organization's third point and the cited Award No. 13758 is precedential authority for the necessity of
 Carrier to keep its review of a past record within proper bounds. In
 this case, since the past record which the Carrier reviewed was more broad
 than the Claimant's past disciplinary record, the Carrier's review of the
 Claimant's record was arbitrary in part and for this reason the claim
 will be sustained in par More specifically the Carrier's May 31, 1974
 letter to the General Chairman reflects that, after determining the Claimant's
 guilt on the charges, the Carrier reviewed the Claimant's past record before
 determining the quantum of discipline to be assessed. Such a review is
 permissible under a host of prior authorities. Also, it was proper for the
 Carrier to consider the suspensions cited in the May 31 letter (the December
 8, 1972 deferred five (5) day suspension and the August 1, 1973 thirty (30)
 day suspension which also invoked the prior five (5) day deferred suspension),
 because the Claimant had rights and opportunity to challenge and contest
 these suspensions under the Rule 22 provisions relating to Discipline and
 Grievances. However, the May 31, 1974 letter cited five (5) letters of
 warning or admonition, which are not of a nature which renders them subject
 to the Rule 22 provisions. (The warning or admonition letters are dated:
 April 18,.1972, October 13, 1972,-Navember 24, 1972, January 15, 1973, and
 June 8, 1973.) .Consequently, the Claimant had no right or opportunity to
 challenge and contest the contents of these letters under Rule 22 and the
 letters' contents in the instant record must therefore be regarded as the
 unproved, unilateral assertions of the Carrier. Such unproved assertions
 cannot properly be taken into account in determining the quantum of disci
 pline, and the fact that the Carrier did take such assertions into account
 was arbitrary and unreasonable. When the five aforecited letters are blanked
 out of the instant record, it is concluded that a ninety (90) day suspension
 is excessive discipline in light of the offenses proved by the instant
 record and the prior discipline of thirty-five (35) days actual suspension.
 Accordingly, the claim will be sustained to the extent that the ninety
 (90) day suspension is reduced to a sixty (60) day suspension and the Carrier
 shall be required to compensate the Claimant for time lost as a result of
 the vacated part of the suspension



That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;
                  Docket Number CL-21082


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

        That the Agreement was violated in accordance with the Opinion.


                      A W A R D


Claim sustained to the extent that the ninety (90) day suspension is hereby reduced to sixty (60), days and the Claimant shall be compensated for all time lost (30 days) from the vacated part of the ninety (90) day suspension.

                        NATIONAL RAILROAD ADJUSTMENT BOARD C-~ By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 16th day of December 1976.