NATIONAL RAILROAD e.DJUSTMENT BOARD

Award Number 21226

THIRD DIVIS_ON Docket Number CL-21245

Joseph A. Sickles, Referee

(Brotherhood of Railway, Airline and Steamship Clerks, ( Freight Handlers, Express and Station Employes PARTIES TO DISPUTE: ( (Grand Trunk Western Railroad Company

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL7848) that:

(1) Carrier unjustly dismissed from the service Mrs. Helen Woo, Overcharge Claims Clerk, Detroit, Michigan, and Miss Leona McMillian, Clerk, Detroit, Michigan, as a result of investigation held on July 30, 1974, in which the transcript failed to support the decision of the Carrier in sustaining the charges made
(2) Carrier shall return Mrs. Woe aria Miss McMillian to service with all rights unimpaired, and compensate them for all wages lost account dismissal.

OPINION OF BOARD: On July 24, 1974 Claimants engaged in a verbal and physi
cal altercation which resulted in their immediate suspen
sion pending an investigation for conduct unbecoming an employe (i.e. inciting
a fellow employe to fight, physical fighting, failure to obey orders of Super
visors, causing a disruption in the office, and use or threatened use of a
weapon in fighting).

Subsequent to the investigation both employes were discharged for inciting a fellow employe to. fight and physical fighting. It was also determined that Claimant McMi
Claimants have urged, as a basis for relief, the fact that the officer who issued the decisions to terminate was not the Officer who heard the case. Under certain records, such a showing might have a bearing on our review, however, we are of the vie Claimants.

Although we recognize a disparity in the testimony of the witnesses and Claimants, the record establishes the following basic sequence of events.

Claimant Wos' comment about Claimant McMillian's gum chewing triggered a verbal and physical dispute in the fourth floor ladies room (shouting, profanity, slapping, pushin which point Claimant McMillian was physically restrained. Witnesses testify that they saw a weapon and heard McMillian shout "I'll kill you." and heard Ms. Woe' retort, "No you won't. Just try."

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Docket Number CL-21245

?Then Wos was ordered to leave the area, she went to a Supervisor's ~ff'_.c=_ on the third floor and was immediately followed by McMillian. They
,:-d .he verbal altercation and again it appears that some physical contact, -- such as slapping and
Even leaving aside the question of whether a weapon, as such, was introduced into the conflict, we are inclined to find that Carrier's action was warranted. It has been long established that this Board should not sdbstitute its judgement for evidence to support the Carrier's version of the facts. In short, the criteria of Award 20993 has been met:

"The jurisdiction of this Board in discipline cases is well understood to be a threefold inquiry as to 1) Whether Claimant was afforded a fair and impartial investigation 2) Whether substantial record evidence supports the charge and 3) Whether the discipline imposed is, in all of the facts and circumstances of the case, so disproportionate to the offense as to be arbitrary, unreasonable or capricious. We h the instant record in light of these standards."

We cannot state that the discipline imposed was disproportionate to the offense proved. In addition to showing the altercation, the record also shows that both Claimants were disinclined to allow the matter to drop. Our recent Award 21068 is, we feel, quite pertinent to this record:

"In every instance such as the one here under review, it is safe to say that one of the parties ignited the spark. But, it is equally safe to state that both parties bad ample opportunity to restore a sense of propriety became totally uncontrollable."

Based on all the evidence presented we can not state that the disciplinary action imposed was either

FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:

That the parties waived oral hearing;

That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

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Docket Number CL-21245

That the Agreement was not violated.

A W A R D

Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD A&Zaa 00, By Order of Third Division

ATTEST:

Executive Secretary

Dated at Chicago, Illinois, this 31st day of August 1976.