Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 36734
Docket No. MS-34321
03-3-97-3-810
The Third Division consisted of the regular members and in addition Referee
Edwin H. Benn when award was rendered.
(Scott E. Smith
PARTIES TO DISPUTE:
(Metro-North Commuter Railroad
STATEMENT OF CLAIM:
"Excessive disciplinary action and violation of the BRS collective
bargaining agreement by Metro-North Commuter Railroad in that
the employee, Scott E. Smith's rights were violated by different
departments of the Metro-North Commuter Railroad and also the
fact that the employee did not receive a fair and impartial hearing.
The remedy sought is the removal of the disciplinary action and
expungement of the events from the employee's record or that the
action be reduced to a MOST Report by the company in lieu of
disciplinary action."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
The carrier or carriers and the emplo%ee or employees involved in this dispute
are respectively carrier and employee within the meaning of the Railway Labor Act,
as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
Form 1 Award No. 36734
Page 2 Docket No. MS-34321
03-3-97-3-810
In order to gain entrance to the second floor of the tower at CP-1 and 56th
Street and Park Avenue in New York City, on July 1, 1996, the Claimant climbed
the outside wall of the tower and broke a window on the second floor. The Claimant
then cut his arm while reaching into the window. For that conduct, the Claimant
received a 30-day deferred suspension.
Substantial evidence supports the Carrier's decision to impose discipline.
Rule citation is not necessary for the Board to conclude that even in the
performance of their duties, employees are not to gain entrance to a locked area in
the manner the Claimant did in this case.
However, under the circumstances, we find that the amount of discipline
imposed was excessive and therefore arbitrary. The Claimant's 30-day deferred
suspension shall be reduced to a MOST Report and reference to the 30-day deferred
suspension shall be removed from the Claimant's record.
The parties' procedural arguments do not change the result.
AWARD
Claim sustained in accordance with the Findings.
ORDER
This Board, after consideration of the dispute identified above, hereby orders
that an award favorable to the Claimant(s) be made. The Carrier is ordered to make
the Award effective on or before 30 days following the postmark date the Award is
transmitted to the parties.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 22nd day of October 2003.