Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 9219
SECOND DIVISION Docket No.
8979
2-WT-CM-'82
The Second Division consisted of the regular members and in
addition Referee Robert W. McAllister when award was rendered.
( Brotherhood Railway Carmen of the United States
Parties to Dispute: ( and Canada
(
( Washington Terminal Company
Dispute: Claim of Employes:
1. That the Washington Terminal Company violated the controlling agreement
when they unjustly assessed Car Cleaner Barry T Whitmyer a ten day
suspension as a result of an investigation held October
31, 1979.
2,
That accordingly the Washington Terminal Company be ordered to compensate
Mr. Whitmyer his net wage loss
(23
days) he was caused to lose by this
unjust suspension.
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.
Parties to said dispute waived right of appearance at hearing thereon.
This claim arises out of a charged altercation between Claimant and a fellow
employe, C. C. Ingrain. Claimant, an employe with three and one-half years service
at the time of the incident, October
16, 1879,
was removed from service immediately
following the incident. Subsequently, as a result of the investigation, he was
assessed an additional ten (10) day suspension. C. C. Ingrain was dismissed from.
service because of his actions with regard to the charged altercation.
The Organization contests these actions on the grounds Claimant was the victim
of a vicious attack, which resulted in injury. It protests the use of Claimant's
past record and asserts its use in establishing the correctness of the charge is
irrelevant.
Carrier relies entirely on the testimony of two witnesses: an Electrician
Helper and a Car Cleaner. The General Rule which Claimant is charged with violating
reads, in part: "Engaging in altercations is prohibited." An altercation is defined
as engaging in a heated and noisy quarrel. The Board has reviewed the record and
finds the Carrier properly deduced an altercation took place. It is undisputed
that following the incident, Claimant was found to have contusions of neck, left.
shoulder, upper back, and left knee, cervical dorsal strain, and abrasion of left
knee. The Electrician Helper testified he heard an argument between Ingrain and
Claimant. The testimony clearly established Claimant was trying to escape from
Ingrain, who had a black object in his hands.
Form 1
Page 2
Award No. 9219
Docket No.
8979
2-WT-CM-'82
Despite engaging in this incident, Claimant became the victim of a violent
assault by Ingrain. The Board is satisfied the Carrier's position is supported
by substantial evidence, and Claimant is guilty of participating in an altercation.
We find the issuance of a ten (10) day suspension reasonable and proportionate to
Claimant's role of the non-agressor. In the issuance of this penalty, however,
Carrier has overlooked an additional thirteen (I3) days Claimant lost by reason of
his being taken out of service before the hearing. To the extent this period does
not conform to the discipline imposed, Claimant is to be paid for the thirteen
(13) days lost prior to the hearing.
A W A R D
Claim sustained in accordance with the Findings.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
Attest: Acting Executive Secretary
National Railroad Adjustment Board
-,c~-~ . ~i
%BY
semarie Brssch - Administrative Assistant
Dated at Chicago, Illinois, this 22nd day of July, 1982.