Form 1 NATIONAL R:%I?R(a,.D ADJL,=T:",-1 BOARD Award No. 857?
 SECO~,TD DIVISION Docket No. 8627
 2-D~RCw-rrA-' H 1
 The Second Division consisted of the regular members and in
 addition Referee Jcitn B. I_~.?llacco when award was rendered.





Dispute: Claim of Employes:










Findings:
The Second Divisicn 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 At as approved June L1, 1;31:.
This Division of the Adjust..i--nt L,az:rd . ~zs ,;;.r ci~.... ~~:z c<.r (1 c dist}ute involved ',erein.

    Parties to said dispute waived ri-)~-t of -ppe:nrance at- t',-


    Claimant was charged with fighting with another employe which caused injury

to the other employe. He was suspended frOTri service on Nove--ber '_-'?, '.~''r''-~' '.'' -
 the outco--~e of an inZ-e.ti~ - ~' c:: L_.~ u.~ , :~ ;'~ . i i~:e oz t:-ie aiJubect
 at t is t misconduct, claimant, a machinist helper, teas assigned duties as a tool room attendant. :fit. t:i~ i-%esti;: it_.il, tl-ia s..,i._.:i~it -,-as n ied as a chi-'3rincipal w _i:'. Mr. Clark, the empioye with wrrom he purporteciiy iouslit. j~ota principals .acre feoed guilty and dismissed from service.

    The organization raises several procedural defects in the hearing process.


First, the notice provided t0 t1h.. t^~.^;_._yt .7,~,.~ .,t:~,n; :~°.j' 1af~r«. L.lc. Ci 7.ITlant
 of ~; ~: ; ._ _ : . _ .zcnd, RuJe 2 does not
 c:.-:~.; ... :. . _ . f-'-:~n cne respondent. Lastly, the investic;~.ti.oci
 ~.: .s . .. :. .. .. , _ . ,.:~ ..,. _ _~, t:~e ordan:zatzon S i:°::iiary
 .. _ ; .._ _ Lcr discriminated against the claimant when it exerci=sed
 leniency in favor of Clark ;he was reinstated within thirty days after his
 Form 1 Page 2

Award No. 8572

Docket No. 8627

2-DRcw-NLLA,-'31

 discharge) but declined to reinstate the claimant. The organization also that claiirant was instructed to keep other enployes out of the tool room. Since the fig1iting incident arose out of clairant's attempt to bar Clark from the tool room, his misconduct should be e~:cused. The carrier argues that the charge was sustained at a fair and regular hearing. Furthermore, the carries.- :Cjryucs t- :t it has the absolute right to invoke leniency on a case by case basis regardless of Zvh~,%ncr 4..:,~ C-rrlcr s actions result in disparate trE=c-tlont a~;'-;". C:'.: ...:yt?S.

 We first turn to the organization's contentions that the claimant was denied a fair hearing. The December It, 1978 notice sent to claimant clearly apprised the claimant that he was charged with an altercaticn in the tool room on November 23, 1978. The notice of charges complies with Rule 32, if it alerts the claiuant to the nature of the case. Second Division Award No. 8034 (Rou'_Kis). The instant notice conta ned all the critical allegations accusing the climant with fi`hting with another employe. The clair-L:ant was fully a,?are of the accusation brougat against him. As to the joint trial, tire carrier assumes grave risks when it conducts a hearing with multiple respondents. The r:ost.obvious hazard arising out of an investigation involving more than one principal is that overwheimir_g evidence against one principal will taint the evaluation of another principal's culpability. Therefore, the hearing officer has the difficult task of independently waia:;lrg the evidence against each respondent. This Board most carefully scrutini-a the record for ar:y use of evidence ag:irst the ot'-ier -rincip=:1 ~ch.ch _r.:nrouerl;a prejudiced the claim;,nt. In this case, both principals were cl,=bed vita ic?=anti_;1 offenses arising out of the same set of facts. The record discloses no evident,a admitted against the other principal ;Jh:Lcrl tainted a fair adjudictifln of t'tc- c~arges against the claimant. Without a showing of such prejudice, we affirm the carrier's use of a joint hearing in this case. Finally, we see no interference with the hearing due to the Lnere presence of an assistant hearing officer at the investigaticn.

 While we have examined the substance of the organization's procedural objections,
 we note that the claimant, at the commencement of the investi« _ticn e~,_rrcssly
 T, r- t n, - r .; z.. 7.i y h T'-i l 1
 e~.,..tc d _ _ ,:: c~:~._i ~,-: ~1~ t.,c_ ~~.. ring. ,~;_.ile ti:e cid~z~:;:cnt s willingness to proceed
 is not a per se waiver of the adequacy of the notice or the joint trial, it is an
 indication tha_t the claimant was not vitally concerned with any procedural prcblc-,:-s.
 In any e~ve-_t, ve :1·.re fo,6«:d L::,t ti.,e cl_::~.:.yit t:as given a fair nearing.

    On November 27, 1978, the clai=nt was involved in a physical aJ.ltercation.4.

                                                        ~:t:1

Clark outside of the tool room. The fight arose after a profane verbal exchange between the claimant and Clark. While the record is not e~t;.r-'·:- --i- --r, it seems

 left tae

 tool ru -c_i ~,nct ~!.._-L;r !1Zl. Col .c .,;c~d hir.;. _~cco:-din-, to rile ci-«,._~:a~, C;l:.r~, re=tur=,°cc' to confront the ciaix?.ant and the claimant thought Clark would hit him. Clairiant admits t'n;at he threw the first punch,.

 "(Q) Who initiated the physical contact?

 (Claimant) I did, but I could like to :.~::~ke a corr;:ent

 I felt if h hadn't tried to hold him, he zaouLd Lave struck me."
 Form 1
 Page 3

 Claimant also testified:
"(Q) Did you repeatedly strike Mr. Clark?

 (A) (Claimant About three times."

 Award No. 8572
 Docket rTo. 8&27
 2-D&RGW-h14-' 31

 As a result of the quarrel, Clark suffered bruises :end minor facial lacerations. Clark reported the incident to both principal's supervisor.

 Even if the claimant had instructions to forbid other employes from entering the tool room, he must enforce the instructions without resorting to any selfhelp including physical violence. If Clark was in the tool room without authorization, the claimant should have reported the matter to his supervisor. Also, the claimant only selectively enforced the rule since he had regularly permitted a,iother employe in the tcol room. Indeed, another employe was present, in t he room, T::en Clark entered. Sv'hen the dispute developed into a physical confrontation, the claimant, even if he sincerely believed Clark was ready to hit him, had ample opportunity to retreat. Instead, the cl~ii=nt aggressively atci:C'.°_d his f1Ic`,i employe which could have resulted in severe injuries to both antagonists. This Board has ruled on numerous occasions that fighting is grounds for disch-_r-e. Second Division Avard No. o1Cu (Sir-.ons); and see also -hird Division AG;°;,,rd No.
 1953 8 (Licberm.'In). Z'7 to Ls ".':se, c1' 1.-i.1t re'-a ated1; battered lis fell'.~:T f::'.'7<';_. ._
 and such gross misconduct varrants dismissal.

 We are precluded from considering the organization's contention that the carrier discriminated against the cluir:_~nt by reinstating Cl---rk, on the basis of leniency, without conferring the sama benefit on the claimant. Leniency is within the sole discretion of the carrier. See Award 73 of Public Law Board 331 (Sempliner). We may not review the carrier's decision not to e:~tencl len.e-cy to the claimant.

 A W A R D

 Claim denied.

 Attest: Executive Secretary
 Nrtticr-l Railrod .djustment hoard

NATIONAL R.'~I?r^:~D .-".?`.II'Si:_'`:::T B1 --1D

By Order of Second Division


By ."° ' .-.'.."'-...~''_.,,~... M.. C _ r_..,xr_ f , .,r .~a''p.
 Rosemarie Brasch - Administrative Assistant

 Dated-at Chic: go, Il.l1z·ot s ,