Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award 110. 7968
 SECOND DIVISION Docket No. 7858
 2-N&W-CM-`79



Fatties to Dispute: ( (Carmen)


Dispute: Clai<Yn of I~wnylotles:









Findings:
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the erroloye or employer involved in this dispute are respectively carrier and employe within the meaning of the Railway Tabor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Claimant was dismissed from service of the Carrier effective August `.i, 1g76 following a formal investigation held on July 2_7, 1876, wherein Claimant was adjudged guilty of engaging in horseplay on the premises of Carrier iii violation of Safety Rule 100.

 Charge against Claimant arose from an incident occurring on July 6, 1976 on Carrier's property, the Portlecl: Yard, located at iTorfolli, Virginia. `the following account ostensibly appears to be a fair reps a^entation of vfnat actually occurs ed, in the face of conflicting testimony contained in the
 Form 1 Award No. 7968
 Page 2 Docket No. 7858
 2-N&W-CM-' 79

 evidentiary record. At approximately 2:55 P.M., five minutes prior to official quitting tame for employees working first shift, the Claimant and a fellow employee were involved in some type of altercation in the parking lot which resulted in injuries to the other employee. As reflected in the evidentiary record, actual quitting time and official time signalling the end of the shift are often at variance, since some days employees work past the official time of 3: 00 P.!1. , irithout payment for over t~ rne, while other days they- work short of 3:00 P.M. Therefore, it is unclear whether both the Claimant and the other employee were off duty at the time of the altercation, though each eirrployee has indicated that at 2:55 P.M. that day o=" July 6, 1976 their were, in fact, off-duty. According to the other erffployee involved in the incident, he had left the locker room almost :im..~rediately after Claimant and noticed Claimant was -vm?king at a very fast pace toward the -parking lot. As the other ernip:Loyee neared his cats he noticed the Clay, ~-_2t approaching him in the same fast paced wa.3-h and noticed Cla:i..:r_ant had a lug wrench in his hand. The other cr,-Tpl oyee testv_fied at ti2e hearing that Clair.~ant grabbed him by the shirt, pulled him from the car and sort of threw him on top of the car all in one motion. VThat ensued next was a detailed decr i:ption by the other employee recounting his effort to free himself of the Claimant so he could get in his car and go home. It was during this scuffle the other employee sustained his injuries, ;rl?.en according to hia~=, both the Claimant and he ended up on the ground and the lug wrench carne down on him. Immediately following the altercation, the other employee who had sustained bleeding injuries of cuts to his nose, lip and right arm reported to the Assistant Car Foreman that he had been attacked by the Claimant. The Assistant Car Foreman promptly proceeded to the locker room, whereupon finding, Claimant, he informed 'both the Claimant and -the other e:.rployee they were relieved from duty for fighting on Company property. Several minutes later, following the Assistant Car. Foreman' s return to his office, the Claimant and the other employee arrived, whereupon both men indicated they rod not been fighting but rather were only playing in the parking lot. After conferring with the Car F orFanan on the matter, the Assistant Car Foreman decided to charge both the Claimant and the other employee irith horseplay and allowed both men to return to work the foll_ow:Lng day, July 7, 1976. On date of Jwly 7, 176, both the Claimant and the other employee were given written notification to attend a formal investigation scheduled for July 20, 176 and each was charged -vrith having engaged in horseplay in violation of Safety Rule 1001+. Upon request of the Organization, the investigation ira s postponed for one week to allow Claimant to complete his scheduled vacation.

 In addition to several alleged procedural defects, the Organization takes the position that while Claimant may have been guilty of horseplay, Carrier in fact dismissed Claimant for reasons other than horseplay for which he was charged. As Claimant cannot have been found guilty of fighting, as testified to by the other e:npl oy `e involved in the incident of July 6, 1976, the organization submits -the~discipl.ine of dismissal assessed Claimant era;; therefore not justified and, in -fact, eras arbitrary, capricious and unreasonable. In substantiation that dismissal was un-viarranted the Organization points out the discipline assessed the other employee involved was a ten day
 Form 1 Award No, 7968
 Page 3 Docket No. 7858
 2-N&W-CM-'79

 deferred suspension while Claimant was dismissed from service. The organization asserts that such disparity in discipline for the same offense is unfair, especially so, in view of Claimant's tw~.Zty-five (25) years of service as compared to a little over two years of service for the other employee.

 The Carrier takes the position that Claimant was afforded a fair and impartial investigation that was free of any and a11. procedural improprieties or deficiencies ,:,s so alleged by the Organization. Carrier asserts what testimony from the evidentiary record is su.'nstaratial and .r.ore than adequately shows that the altercat:i on which tool: place in the poi°1_inlot on Jm1y 6, 1976 iris considerably n_ore serious tran horseplay-ing. Carrier axyaes that conduct of the mature el-zhibited by Cla-lirant cannot, be tolerated on Cc) -any property and contends it matters not whether o~ not C1a,:i=:~.,?at i,;as on au,tY at the time. Carrier asserts the f-ind:zng of guilt on the part of Claimant is we. -1 supported by re':iar~s made at the hearing by the Local Chairman of the: Organization. _i 5°thex~,ore, Carrier declares it t acted propcs~ly when it undertook a review of Clair-ant's past record. This review revealed Claimant had been given three (3) prior investigations fo'r -vhi.c'ki he was assessed discipline over his twenty--five (25) years of set-vice z~rith the Carrier. In fact the last previous irzvestigat:~on, Cla,:i_2-aant, ~%-as given a thirty (30) day suspension in lieu of dismissal for a:.L.~!ost a similar offense as the one lie -vas involved in on aul_y 6, 1976, Carrier argues that in view of Claimant- Is past disciplinary record coupled nrith the severity of the offenses involved, his dismissal was warranted and was not assessed in an arbitrary, capricious or disc rim:i.natory manner.
















:In so ruling, this Board has concluded that Claimant's break in serv'_~ce with the Carrier since his dismissal on August 5, 1976 shall serve as his discipline for his part in the incident of July 6, 1976.
 Form 1 A-~rard No. 7968
 page T+ Docket Tao. 7858
 2-Td&W-CM-' 79




                          By Under of Second Division


Attest: Executive Slecretary
 National t aa.;_rcad P dzj us tznent Board

 I ~ _ ~ ~~

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Dated ~ Ch-.'LCago, Illinois, this 13th day of June, 197y®