(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (Fort Worth and Denver Railway Company .

(1) The dismissal of Trackman J. A. Rich was unjust, with insufficient cause and based u n unproven and disproven charges ZS-ystem File F-7-76/G-90

 (2) Trackman J. A. Rich be returned to service with seniority and all other rights unimpaired and he be reimbursed for all wage loss suffered."

 OPINION OF BOARD: The pertinent facts in this case are as follows:

 Claimant was a member of Section Gang 22 engaged in routine track maintenance work, under the supervision of Foreman Simons. Claimant was dismissed, following an investigation, on the grounds that he threw a spike maul some 8 to 10 feet which struck a shovel in the vicinity of other members of the gang. When Foreman Simons questioned Claimant about his actions, Claimant took exception and was told to leave, Claimant, however, proceeded to hit his foreman and engaged in a tussle or altercation with him. Foreman Simons was injured.

 Claimant's version of the incident is that he "was swinging at a tie plate and a shovel was lying there, and I missed the tie plate and hit the shovel and it flew about three or four feet."

 Petitioner asserts that Claimant was mentally and physic provoked, citing testimony of two witnesses, members of the Section Gang, that Foreman Simons was antagonistic and abusive toward Claimant. However, these same witnesses testified that nothing happened to justify fighting; that Claimant was insubordinate; that the foreman did rot antagonize Claimant or provoke the scuffle; and that the foreman did not treat Claimant differently from other merbers cf the gang.
                  Docket Number MI-22292


Although the foreman's behavior in questioning Claimant about the incident and directing him to leave the scene may not have been a textbook model of supervisory behavior, it by no means warranted Claimant's striking him and subsequent physical altercation.

 Petitioner asserts that Claimant was charged with certain infractions, but was disciplined for others. Such contentions, however, were not advanced during the appeal on the property and are not, . therefore, properly before us. Nevertheless, while Petitioner concedes "that Rules 57, 661, and 664 reasonably relate to the charges..." it takes issue with Carrier's citation of General Rules C, H, and J. These latter three rules deal with safe discharge of duty by employes, exercise of care by employes to prevent injury to others, and employes who persist in unsafe practices, respectively. Claimant's own testimony with respect to these three rules disposes of the issue raised by Petitioner. Moreover, neither Claimaat n protested the application of these rules to Claimant's conduct which led to the discipline of dismissal.

 Petitioner also charges that reference to a prior incident between Claimant and his foreman was prejudicial to Claimant and denied him a fair hearing. In fact, however, the record shows that Claimant's representative first introduced this information at the hearing and neither Claimant nor his representative objected to such material appearing in the record. Consequently, Petitioner cannot, after the fact, object to information it broached and discussed during the Investigation.

 In the final analysis, the record bears out that Claimant was guilty of attacking his foreman, and such action merits the discipline assessed in this case. Under the circumstances, there is no basis for a sustaining award.

        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;
                    Award Humber 22325 Page 3

                    Docket Number W-22292


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

        That the Agreement was not violated.


                    A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST: 9Executive Secretary

 Dated at Chicago, I113nois, this 28th day ofFebruary 1979.