Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9193
SECOND DIVISION Docket No. 88:32
2-BN-CM-'82
The Second Division consisted of the regular members and in
addition Referee Joseph A, Sickles when award was rendered,
( Brotherhood Railway Carmen of the United States and Canada
Parties to Dispute:
( Burlington Northern, Inc.
Dispute: Claim of Employes:
1. That the Burlington Northern, Inc. improperly and unjustly
dismissed Cayman D, W. Schmidt, Havelock Shops, Lincoln,
Nebraska, from service on March 2, 1979,
2. That accordingly, the Burlington Northern, Inc. be ordered to
compensate Cayman D. W, Schmidt, Havelock Shops, Lincoln, Nebraska,
all time lost commencing March 2, 1979 until he is restored to
service as a carman; restoration of all fringe benefits, all seniority
and vacation rights unimpaired; made whole for health, welfare and
insurance benefits; made whole for pension benefits including Railroad
Retirement and unemployment insurance, and all other benefits that he
would have earned during the time he was held out of service.
Findings:
The Second Division of the Adjustment Board, upon the wholer 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.
Parties to said dispute waived right to appearance at hearing thereon.
The Claimant was notified to attend an investigation concerning an altercation. Subsequent to the investigation, the employee was terminated from service.
The record clearly shows that there was an altercation and there is evidence
which suggests that the Claimant was the aggressor, although he insists that he was
verbally provoked in the matter. Moreover, it is rather clear that some degree of
discipline was warranted. Thus cur only question is whether it was arbitrary for Carrier
to dismiss this Employee under all of the circumstances, We feel that it was.
The fact that no blows were actually struck is not necessarily disposi.tive
of the issue. But, it is evidence that the event was more of a pushing and
shoving match of short duration than a fight as such.
A W A R D
1. The termination is set aside.
2. Claimant shall be restored to service with retention of seniority
Form 1 Award No. 9193
Page 2 Docket No. 8832
2-BN-CM-'82
and other benefits but without reimbursement for compensation
lost during the period of the suspension.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
-Jtl-se rie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 22nd day of July, 1982.