NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION Docket Number MW-22218
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:(St. Louis-San Francisco Railway Company
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood
that:
(1) (a) The dismissal of Trackman Darrell W. Bailey was
without just and sufficient cause and
(b) it was arbitrarily and capriciously imposed
because Foreman Shockley, who dismissed the claimant,
was not disciplined in any manner although he (Shockley)
instigated and provoked the incident which led to the
claimant's dismissal.
(2) The claimant shall be restored to service with pay for
all time lost and with all rights intact (System File B-1619/Time
Claims: General: Bailey, Darrell W.)."
OPINION OF BOARD: The claimant, a Track Laborer with about three
years of service with the Carrier, was discharged
for physically assaulting his foreman and threatening him with a shovel.
The evidence shows: that the claimant and the foreman
were involved in an argument as to whether they had bet $10 on the outcome of the race for the Democ
claimant accused the foreman of "welching"; that the foreman denied it,
and kept denying it when the claimant persisted in demanding collection
of the asserted debt; that the foreman ultimately used words which either
literally or in effect accused the claimant of being a liar; that the
claimant, saying that this was an insult which he would not tolerate,
both pushed and hit the foreman; that the foreman went down from the
blow; and that the claimant stood over the foreman with a shovel in his
hand in a threatening manner (though he walked away without actually
engaging the shovel as a weapon).
The
Organization makes
a twofold contention: 1) that the
assault resulted from the foreman's provocation; 2) that two men were
in an altercation and that it is arbitrary and discriminatory to discipline
only one of them.
Award Number 22114 Page 2
Docket Number MW-22218
We are in disagreement with the Organization. It is only as
to the argument that the two men may be said to have been similarly
involved. And on this score, the fact is that the claimant was the
first to use inflammatory language. The foreman did respond in kind,
but he went no further. It was the claimant alone who resorted to
physical force. Moreover, his attack was violent (and on a considerably
older man).
There are two answers to the Organization's reliance on
provocation. The first is that the claimant, having himself assumed
an accusatory stance (and, indeed, having been the first to assume it),
is hardly in a position to convert the foreman's accusatory stance into
a provocation defense. The second is that, even if it were to be overlooked that the foreman had don
no proper way to conclude that the provocation was such as to justify
the claimant's assault and threat.
In sustaining the discharge penalty, we are in accord with
a series of Third Division Awards -- see, for example, Nos. 20314,
21299 and 21245.
The record is clear that the claimant received a full and
proper hearing. We see nothing by way of a violation of his procedural
rights.
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
aver the dispute involved herein; and
That the Agreement was not violated.
Award Number 22114 Page 3
Docket Number MW-22218
A W A R D
Claim denied.,
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
ATTEST:
Executive Secretary
Dated at Chicago, Illinois, this 16th day of jvae 197$.