(Federated Employees Council PARTIES TO DISPUTE:

STATEMENT O' CLAIM: "Claim of Federated Employees Council that
 Carrier acted arbitrarily, capriciously and in a harsh and discriminatory manner when it dismissed from service Clerk E. C. Paulson, May 27, 1977. As a consequence, Carrier shall:

OPINION OF HOARD: The claimant entered the Carrier's service in
 August, 1972. By virtue of the Carrier's policy calling for dismissal where an employe accumulates 90 or more demerits, he was dismissed in early 1975. He had been assessed the demerits (about as many on the one score as on the other) for unsatisfactory job performance and for tardiness. His dismissal was appealed and ultimately determined by Third Division Award 20987. The Award, issued in late February, 1976, called for the claimant's reinstatement without back pay. Claimant resumed his employment with the Carrier, as an office porter at the Bowden Yard, in early April, 1976. He resumed the employment without carry-over.of the demerits which bad been the basis of his discharge.

 The claimant .worked in the porter position in the ensuing approximately one-half year. In that period, at various stages, he incurred charges which were substantially similar to those which had led to his prior discharge. In mid-May, 1976, the essence of the charge was that his work was repeatedly of unsatisfactory quality and quantity. The charge resulted in a warning of a series of terms. About three months later, charges involving three separate incidents were entered against the claimant: 1) reporting late; 2) failing properly to clean a floor; and 3) leaving a desk littered with crumbs upon eating at it. These charges, upon investigation, respectively resulted in 5 demerits, 10 demerits, and 5 demerits.


In September, 1976, the claimant, pursuant to successful bidding, became a Clerk-Operator at Daytona Beach. As of mid-October, 1976, via a lengthy letter providing detailed illustrative material, the claimant was charged with a series of inadequacies over an approximately 3-week period -- once more adding up to the repeated lack of proper quality and quantity in the performance of his work. The charges, on investigation, resulted in 30 demerits.

 In January, 1977, the claimant incurred charges for two separate incidents: 1) delaying a train while working as a Yard Clerk; 2) failing properly to prepare en interchange list, also while working as a Yard Clerk. These charges, again on investigation, respectively resulted in 10 demerits and 30 demerits.

 Having thus received 90 demerits since the time of his reinstatement, the claimant was dismissed (in February, 1977). It is the propriety of this dismissal which is here presented for determination.

 We preliminarily note that we are treating the claimant's entire disciplinary record (since the time of his reinstatement) as before us on its merits.. The Carrier makes time-limit arguments with respect to the Organization's appeal of the charges which resulted in the first 20 demerits; the Organization contends that the succeeding 30 demerits should be seen as removed -- an the grounds that they were grieved and that the grievance was left unanswered; and the Carrier, in regard to this, asserts that no such grievance was ever received by it and that the Organization, accordingly, is no longer in a position to protest the 30 demerits. Despite the affidavits which the Organization introduced to show that the 30 demerits were in fact grieved, we cannot believe that the Carrier received the grievance end thereupon remained silent on it, and we thus decline to treat the 30 demerits as fallen. As to the remaining procedural contentions (which are Carrier contentions), it suffices to say that our conclusions on the merits are such that they can legitimately be sidestepped.

 By our review of the voluminous record which attends the case, the evidence compellingly supports the claimant's dismissal.

        We think there is no escaping the conclusion that the claimant

was an employe who time and again failed to measure up to job
 performance expectations which are reasonable and which are comma
 fulfilled by the claimant's fellow employes. Equally important, the
 evidence gives every indication that the claimant chose to pursue his
 subpar ways. He is neither young nor inexperience3. and be is a
                    Award Number 22284 Page 3

                  Docket Number 1S-22240


clearly intelligent person. There is no-way to attribute his repeated inadequacies to lack of inherent capacities. Rather, the claimant simply declined to heed the ample warnings which he was either actually or in effect (via the demerit system) given -- somehow believing that he was free to set himself apart from his fellow employes in the observance of acceptable standards of diligence and self-application.

 The record, of course, includes various contentions to the contrary. There are denials, asserted excuses, and countercharges, Hut we have found nothing of solid and convincing character. The thread which runs through the claimant's stance in the various investigations of the charges against him is one of lameness and evasion. To conclude that the case essentially presents discriminatory or unduly harsh treatment against the claimant, rather than evenhandedness and patience by the Carri misreading of the evidence.

 Where a dismissal is based on the presence of a particular number of demerits and where the fatal nurber of demerits has come into being via an accumulation of demerits for a series of successive incidents, one cannot help but ask oneself whether the number of assessed demerits per incident was fair and proper. There is little in the record by which to test the question. In the present case, however, we do not view this as disturbing. For we believe that there was here such a persistent pattern of substandard conduct as to justify dismissal quite without the demerit system.

 We enter a final note. It has not escaped us that the leaving of luncheon crumbs on another person's desk would in many a ease have to be viewed as trivial and as lacking in proper cause for disciplinary action. We are not prepared, however, so to view the incident in the present case. The difficulty is that it was reflective of the claimant's indifferent attitude. We think we would err were we to overturn the dismissal by taking an isolated view of the incident.

        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;

                    Award Number 22284 page 4

                  Docket Number M-22240


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

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

        That the Agreement was not violated.


                    A W A R D


        Claim denied.


                        NATICKAT. RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 12th day of January 1979.