(Brotherhood of Railway, Airline and
 ( Steamship Clerks, Freight Handlers,
 PARTIES TO DISPUTE: Express and Station Employee



"(1) Carrier violated and continues to violate Rule 39 and other rules of the Agreement, the provisions of the investigation and hearing procedures and acted in an arbitrary and capricious and prejudicial manner when it dismissed Mr. Andrew Demaako as a result of an investigation held on June 11, 1976.

 (2). Carrier shall nor be required to campeasate Mr. Andrew Dmenko far all wage loss incurred including overtime and all benefits he is entitled to under the existing Agreements beginning June 5, 1976 and continuing until Mr. Demenko is returned to service with all seniority rights and privileges unimpaired.

 (3) Carrier shall also be required to compensate Mr. Demenko ten (10Q percent interest per annum to became effective thirty (30) days from the date Mr. Demenko was withheld from service."

 OP33ICH OF HOARD: At the time of his dismissal, the claimant had
 accumulated about 25 years of service with the
 Carrier. There had been no prior disciplinary action against him.
 The substance of the letter dismissing him (dated June 18, 1976) reads
 as follows:



The record in the case is of substantial length and contains numerous contentions and coantercontentions, both procedural and substantive. We have came to a series of conclusions and will move directly to then.

 The evidence as to what happened on the night in question is sharply in conflict. We deduce the following to have been the essence of the incident. The claimant was engaged in loading Cleveland trailers for the Universal Carloading Superintendent. At a stage at which fifteen trailers had been loaded and two more trailers were yet to be loaded, HN Manager Hajek asked the claimant to load a carton into an NO trailer. The clai=nt resisted the instructions, resentfully indicating that he had more pressing work to do. Hajek want off to report the =tter to the Warehouse Foreman. By the time he (Hajek) came back to rider the claimant to load the carton into the NW trailer, both he and the claimnt were in a huff. The claimant, however, decided to comply with the i band, decided to walk alongside the nlsi,nwnt to mak certain that the claimant would comply. The claimant was on his way toward the N8W trailer with a four wheeled cart when one of the wheels went over Hajek's foot.. Ha.1ek pushed the cart aside, and the claimant thereupon became profane and pbysioall was a hard shove with raised hands, but we are not prepared additionally to find that the claimant s fist.

 On these findings, we must hold that the claimant was guilty of a serious offense. In our opinion, however, it is equally true that there were a number of mitigating curcumstances. One lies in the fact that the claimant in a very real sense had two bosses on the night in question and that he was in effect asked to interrupt an assignment which he had previously been given and which he was anxious to complete. Another lies in the fact that the claimant is of imperfect command of the English language and that Rajek, had he kept awareness of this and inquired as to why the claimant was resisting his request, might well have been content to defer the loading of the carton into the N&W trailer. And yet another lies in the fact that Hajek chose to walk alongside the claimant to make cer~ain that the claimant would carry out the order. In the light of the claimant's long and excellent service with the Carrier, this was an insulting posture. Further, the obvious fact is that the cart would nut have gone over Hajek's foot had Wek stayed away from the claimant.
                    Award Number 22283 Page 3

                  Docket Number CL-22131


When these things are put together, it seems to us that Hajek cannot realistically or fairly be held blameless. We find that the incident was marked by shared culpability. And when this, in turn, is joined with 25 years of unblemished service, we do not believe that the discharge penalty can be accepted as appropriate.

 Overturning the discharge on the merits, we view it as unnecessary to deal with the procedural objections which the Organization has raised with respect to the predischarge investigation. We do, however, want to go on record as sharing the Organization's concern for the narrowness of the scope of inquiry which the hearing officer insisted on -- thus precluding the Organization from introducing testimony respecting Hajek's attitude on prior occasions and the possibility that attitudinal problems qn Hajek's part may have been at the root of the incident an the night in question. We do not believe that an investigation involving an employs's dismissal is intended to be confined to the immediate facts of the incident precipitating the dismissal.

 We are-converting the claimant's discharge to a suspension of 4-month duration, directing that the claimant be reinstated without impairment of seniority rights and with reimbursement for lost wages starting with October 4, 1976 (withoat payment of interest and without makeup of health-and-welfare insurance coverage, but with offset application of outside earnings). In coming to this result, we have been influenced by the facts that the Organization, in early August, 1976, turned down a carrier offer to reinstate the claimant without back pay on leniency grounds and that the Carrier, by early September, 1976, had in its possession an Organization offer by which the claimant would have been reinstated forthwith and the back-pay question would have been separately processed.

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


        That the parties waived oral hearing;


That the Carrier and the Employer involved in this dispute are respectively Carrier and Employer within the meaning of the Railway Labor Act, as approved June 21, 1934;
                    Award Number 22283 page 4

                    Docket Number CL-?2131


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

        That the Agreement was violated.


                    A W A R D


        Claim sustained as per Opinion.


                          NATIOKAL RAILROAD ADJUSTMBT BOARD

                          By Order of Third Division


ATTEST: Ad& . &&I~

        Executive Secretary


Dated at Chicago, Illinois, this 12th day of January 1979.