Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8882
SECOND DIVISION Docket No. 8762
2-ClioO-MA-' 82.
The Second Divisiim consisted of the regular members arid in
addition Refer©o George S. Roukis wl en award was rendered.
( Internatirnial Association of Ma(:hinists and
Parties to Dispute: Aerospace Workers

Chesapeake and Ohio Railway Company

Dispute: Claim of Employes:

1. That, under the current Agreement, the Chesapeake and Ohio Railway Company unjustly dismissed from service Machinist F. L. Lomax from the < ~ ate January 6, 1979.

2. That, accordingl,r, the Chesapeake and Ohio Railway company be ordered 1.0

reinstate Machinist F. L. Lomax to his former position, compensate him

for all time lot from JtLnuary 6, 1970, until restored to service

with seniority iinimpaired, made whole for all vacation rights, and

payment for Hea-th and Welfare and Death Benefits, under Travelers

Insurance Polic, GA-23000, and Railroad Employees' National Dental

Plan GP-12000.

Findings:

The Second Diwieion of the Adjustment Board, upon the whole record and all the evidence, f ind a that

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier end employe within the meaning of the Railway Labor Act as approved June 2L, 193.

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

Parties to said dispute waived right of appearance at hearing thereon.

An investigation was held on December 6 and 7, 1978 to determine whether Claimant engaged in physical altercation with Locomotive Engineer Jack VerMurlen in the locker room of Crew Dispatchers' Office Roadhouse, at approximately 7:50 P.M. can August 26, 1978 at Grand Rapids, Michigan. Based on the investigative record, Carrier concluded that he was guilty of this offense and dismissed him from service, effective January 6, 1979. This disposition was appealed.

In defense of his petition, Claimant contends that he did not initiate the altercation as charged by hocomoti-re Engineer VerMurlen, but defended himself, when VerMurlen attacked him. He argues that his position is persuasively supported by the contradictory statements proffered by witnesses favorable to VerMurlen's version of she incident, which differed from their written statements prepared immediately after the altercation. He asserts that Carrier found him guilty on flimsy and insubstantial evidence and predicat(:d its finding more on his past disciplinary record than the substantive facts developed at the hearing.

Form 1 Award No. 8882

Page 2 Docket No. 8762

2-C&O-MA-'82

Carr32r contends that Claimant was in an unauthoxi.ze< area when he was using x telephone to make a personal call and blocked Locomotivc_ Engineer VerMurlen prom reaching the Engineers' Bulletin Books, when he was resting his arm on a Bulletin ;gook, It argues that when VerMurl,en asked Claimant for the second time to move so that he could read the Engineers' Book, Claimant began striking him in the st mach, which was verified by Brakemen R. J. Dill and J. B. Henry and Engineer W. W. Bateson, who testified Claimant engaged in physical altercation with VexNinr'.eo.., It- avers that his past disciplinary reccrd, which consists of a ten (10) day suspension for fighting in a cab of a locomotive in 1971, a ten (10) day suspension. for excessive absenteeism and numerous wage garnishments were used to assess the appropriate penalty detersa-1niation, only after it was clearly established that he was guilty of the instant charge.

In our review of this case, we concur with Carrier':: position. The record shows that Clal.nt was in .an unauthorized area at the time of the incident and precipitated the actual Physical altercation. The testinwny and written statements of the eyewitnesses, which Cla.imaat contends are contradictory, reflect more DeMinimus variation.- than substantive inconsistencies and collectively indicate that Claimant initiated the fl,ffit. It may well be that Engineer VerMuxlen's demeanor was antagonistic, parti=laxly, his method of approaching Claimant, but -there is no direct evidence that he shoved and struck C'eimant first. Moreover, even assuming arguenc.o, that lie was verbally provocative, it does not excuse or mitigate physical belligerency. Claimant's deportment was potentially rletr inental. to rail operations as well as a blatant violation of Carrier"s safety rule:; and it cannot be lightly treated. As a rule, we would

invariably s<_istai:x Ccrr3.ex's decision, since it was premised upon 8 competent _

and definable: rccorcl., but we believe :hat Claimant should be reinstated on a

last chance basis, because of the xniaixnal contributory influences present. His

actions were spontaneous, not premeditative or deliberate, but they were

plainly wrong under the circumstances. We will reinstate him, in accordance

with this f~:.~d~.x·.c.., without back pay, with the explicit understanding that we will

affirm a dr.~a~.:v;=~.E. ?ecd.sion if he is 4aacipl.ineel. for cause again.

A W A R D

Claim sustained t:o the extent expressed herein.

NATIONAL RAIIROAD ADi1'USTMENT 7 OARD

By Order of Second Division

Attest: Executive Secretary

National Railroad Adjustment Board

.a.~---_^~.,.

4e~ % :>

<osemarie Bras Administrative Assistant

Datetat Chicago, Illixaois,this 27th day of January, 1982,