Form 1 NATIONAL IZAIIROAD ADJUSTMENT BOARD Award No. gq5
 SECOND DIVISION Docket No. 2-CR-FO-182
 The Second Division consisted of the regular members and in
 addition Referee Elliott M. Abramson when award was rendered.
 ( International Broth<<rhood of Firemen &, Oilers
 _Parties to Dispute:
 ( Consolidated Rail Corporation

 Dispute: Claim of Employes:
1. That, in violation of the current agreement, Laborer J. R. Anderson
 was unjustly suspended and dismissed from service of the Carrier
 following trial held on March 5, 1979.
 2. That, accordingly, the Carrier be ordered to make the aforementioned
 J. R. Anderson whole by restoring him to Carrier's service, with
 seniority rights unimpaired, made whole for all vacation rights,
 holidays, sick leave benefits, and all other benefits that are a
 condition of employment unimpaired, and compensated for all lost time
 plus ten (10°%) percent interest annually on all lost wages, also
 reimbursement for all losses sustained account of coverage under health
 and welfare and life insurance agreements during the time he has been
 held out of service.
 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 case arose out of an incident on February 28, 1979, at the work place cafeteria, involving an altercation between Claimant and a co-employee. On March 1, 1979 Claimant was charged with fighting on Company property and notified. to appear at a trial to be held. on March 5, 1979. On March 16, 1979 Claimant was notified, that pursuant to the results of such trial he was dismissed from Carrier's service.
March 1, 1979 charge against Claimant and the investigative trial held on March
 5, 1979 did not amount to "the reasonable advance notice ... of the exaat offense:
 for which he is to be tried" to which Rule 20(d) entitles Claimant. The
 Organization asserts that the only three full days which existed between March
 1st and March 5th did not avail Claimant and his representatives a reasonable
 time to prepare Claimant's defense to the charge directed against him.
 °a~z I Award No. 8935
 ~;~2 Docket No. 8842
 2-CR-FO-'82

 In the first place, it may be pointed out that the procedural propriety of ~;1Fsing this argument, now, is dubious since such objection was not raised at the investigative trial itself. Indeed, if Claimant and/or his representatives pd believed they'd not had adequate time to prepare a defense they might have R:Yeen expected to have requested a postponement of the trial, when it was a,Ica That they did not tends to suggest that there was enough time to prepare Claimant's defense. Also, the charge was clearly stated, vix; "fighting on company property" so there could have been no confusion in Claimant's mind as to exactly what type of allegations he would have to be lefending against. Additlly, since the altercation incident, underlying the c-large in this matter, happened but three days prior to the date on which Claimant was charged, and since it was, as the testimony at the hearing showed, a iLather sharply defined incident of very short duration, Claimant would have had no trouble in assembling those recollections and resources which would have been useful to his defense. Thus, even aside from the question of the propriety of Organization later raising a procedural objection which was not adverted to, on Claimant's behalf, at the trial, it clearly appears that, on the merits of this question, Claimant was accorded that "reasonable advance notice" required by Rule 2 0(d).

 The record indicates that the incident underlying this matter evolved out of a situation in the work place cafeteria at approximately 7:00 P.M. on the evening of March 28; 1979. Claimant was apparently waiting in a line leading to a machine which returned a dollar's worth of change for a proper dollar. It seems that his co-employee, Morgan, who had been talking to another employee who was waiting in this line, but in front of Claimant, then tried to insert himself in front of Claimant, at the change machine itself, after the person he'd been speaking with had completed using it. Claimant apparently removed Morgan's dollar bill from the machine and words were exchanged regarding Claimant's charge that Morgan had tried to "crash" the line, as it were. Morgan testified that, as the words were being exchanged, he did not lay a hand on Claimant and backed off when Claimant evinced a high degree of indignation at Morgan's attempt to use the machine before him. Further, Claimant admits that he referred to Morgan as an "asshole" while Morgan was ur&Ug Claimant not to get excited. However, Claimant contends that Morgan then pushed him and Claimant Wig, his own arm to knock Morgan's away. Claimant admits that he and Morgan then scuffled, hitting each other in the chest and abdomen.

 Three witnesses tEstified as to the nature of the physical altercation to which both Claimant and Morgan admit. In substance, the first of these witnesses testified that Morgan pushed Claimant first. The gist of the testimony of the second of these witnesses was that he saw both men wrestling around with Morgan having a grip on Claimant. The third of these witnesses testified that it seemed to him, as if Morgan had pushed Claimant.

 Distilling the testimony of these witnesses, as well as other evidence, an effort to arrive at a fair picture of what transpired, suggests the following scenario. The Claimant did not initiate the chain of events which eventuated in his physical altercation with Morgan. Things were started off when Morgan, attempted to break into it line ahead of Claimant who'd been waiting on the line. Words were exchanged, th:~ngs escalated, Morgan pushed Claimant, the latter
 Form 1 Award No. 8935
 Page 3 Docket No. 8842
 2-CR-FO-'82

 swung his arm to thrust aside the push, the men then closed, scuffled, jostled and wrestled with each other, with blows and thrusts being struck at their respective chest and abdominal areas. (Morgan, alone of those who testified at the hearing, asserted that he had been struck a facial blow by Claimant). The entire physical interchange seems to have lasted but approximately 15-30 seconds before being broken up by another employee.

 Thus, the sum and substance of what took place seem to have been that Claimant was physically provoked, by Morgan's push into responding physically against Morgan. Havever, it should be note. that Claimant called Morgan an "asshole" at a time when Morgan seemed to be trying to modulate their verbal disagreement. Also simply because Claimant may not have struck the initial blow does not mean that he was not seriously blameworthy respecting development of the incident into an active physical altercation. As was stated in Award No. 21008, Third Division:

Thus, simply because Morgan, rather than Claimant seems to have ignited the spark of the first physical ~-!ontaci it may not be inferred that Claimant did not conatribute to the generation of a context in which a physical fracas seemed almost natural. Claimant's blameworthiness, in the physical aspect of the entire incident, is heightened by the fact that by that time he should have known better. In view of the fact that he had been previously suspended for 30 days, in 1977, for striking another employee, Claimant might well have been expected to have made every possible effort to avoid again being implicated in the offense of fighting on the job. indeed, in view of this previous fighting incident it is the Carrier's contention t~j~: remedial discipline respecting-this type of activity has failed in Claimant's case, therefore, the discipline of discharge, assessed against him, in the instant matter, is appropriate.

 There is force in this position but, it must be remembered, also that words are different in kind, not just in degree, from blows and that striking the first blow is often the key trigger in a more extensive physical altercation. Once one man is struck by another, there are many cultural and social contexts in which he who has been struck is seen as laving little choice if he's to maintain "face" in that milieu, but to strike back. Consequently, it is felt that the fact that Claimant waft not the physical provocator but, rather, the party provoked should serve as, at least, somewhat of a mitigating factor respecting his subsequent physical response.

 Accordingly, since Claimant's basically blameworthy conduct was mitigated in character by his having been provoked to engage in it the Board feels that Claimant should be reinstated to service with the understanding that any conduct

.4xge 4 Docket No. 8842
 2-CR-FO-'82

 resembling, to any degree, the type of behavior for which Claimant was here ,:Lsciplined would meet with immediate dismissal without any recourse on the basis of mitigating factors, excuse, etc. Additionally, Claimant should receive no compensation for any wages lost, or credited respecting any fringe benefits, such as vacation rights, holidays, sick leave benefits, etc. which would have accrued in the period between dismissal and reinstatement.




                            By Order of Second Division


Attest: Executive Secretary
        National Railroad Adjustment Board


By _
 osemarie Brasch = Administrative Assistant

      Dated at Chicago, Illinois, this 24th day of February, 1982.