The Second Division consisted of the regular members and
in addition Referee Jesse Simons when award was rendered.
SYSTEM FEDERATION NO. 114, RAILWAY EMPLOYES'
DEPARTMENT, A. F. L. - C. I. O. (Machinists)
EMPLOYES' STATEMENT OF FACTS: Machinist Jack Zawitkoski was employed by the Southern Pacific Transportation Company, hereinafter referred to as the carrier, at its System Maintenance of Way Shop in Oakland, California, with assigned shift hours 7:30 A. M. to 12:00 Noon and 12:30 P. M. to 4:00 P. M. At the time of his suspension from service on September 2, 1969, and subsequent dismissal on September 29, 1969, claimant had accumulated approximately eleven (11) years of iaithful service with the c&rrier.
On Friday, August 29, 1969, claimant reported for duty and commenced work at 7:30 A. M. on a job assignment given him by his supervisor, Mr. Freitas. Claimant was performing his assignment when he was ordered to remove some equipment and parts from the floor by a fellow employe, Mr. W. P. Hill. Claimant did not comply with Mr. Hill's orders due to the fact that the equipment in question was too heavy and requested the use of a crane to move.
The foregoing establishes clearly and convincingly that claimant viciously attacked the person of a fellow employe, that the weapon employed for this purpose was forcibly retrieved from the Shop Superintendent, and that he departed the premises without license for doing so having been obtained. Carrier submits that no more documentation than this should be required to justify claimant's separation from its service. The Board is requested to concur with that judgment and to deny the claim before it in this instance in its entirety.
The carrier, having already conclusively proven that the claim as submitted is, in its entirety, without merit, is confident the Beard will deny it. Notwithstanding this position and in no way admitting that the carrier's dismissal of the claimant was not justified and proper, the carrier submits that in the event the Board should sustain the claim insofar as the request for compensation is concerned, it should take into consideration the matter of deducting the amount earned in other employment during the period involved.
The Board has previously interpreted this rule providing for compensation for "wage loss, if any" as requiring deduction of outside earnings in computing compensation due. See Second Division Award 2523 and 26,53.
The carrier respectfully submits that having conclusively established that the claim is entirely without merit, it should be denied.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe 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.
This is a claim that machinist J. Zawitkoski was unjustly suspended from service on September 2, 1969, for violation of Carrier Rules 801 and 802, in that he was involved in an altercation with another employe during the course of which, the claimant is alleged to have struck and injured the other employe with a tool.
Review of the entire record has persuaded the Board that in fact the Claimant, during an altercation, did strike and injure another employe. The Board is denying the claim for this reason, and because the use of violence at the work place cannot be condoned, and because it is essential to encourage use of the means available for the peaceful resolution of differences among and between employes.
The record also revealed that C'arrier's dismissal of Claimant was not arbitrary, or capricious, and that Claimant was afforded the fullest measure of due process under the Agreement, and that the dismissal was just and not excessive or unreasonable.