Lamont E. Stallworth, Referee


(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:
              (St. Louis Southwestern Railway Company


STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The dismissal of Extra Gang Laborer E. A. Harris for alleged 'violation of Rules 801 and 8022' was without just and sufficient cause and wholly disproportionate to the charge leveled against him (System File 94-80-21-CB/281-51-A).

 (2) The claimant shall be reinstated with seniority and all other rights unimpaired and he shall be compensated for all wage loss suffered."

 OPINION OF HOARD: Prior to his dismissal, Claimant E. A. Harris had been
 employed by the Carrier approximately 9 months and 3 days, having been initially employed June 4, 1979. Claimant Harris was dismissed by letter dated February 7, 1980 in_connection with the charge that he entered into as altercation with another employs on February 6, 1930 is violation of Rules 801 and 302
            .


In response to Claimant's request for a formal hearing dated February 12, 1980, a formal hearing was held on Match 4, 1980. Subsequent to the hearing the Claimant was informed by letter dated March 11, 1980, that the Claimant was found guilty as charged and that dismissal was ,justified.

        Acting Foreman of Extra Gang No. 44 D. Williams testified as follows:


    "Q: Can you dust tell me in your words ,just what you saw take place?


    A: In the starting of it, at the North sad of the yard I had two men filling in. :Michael Richardson, he threw his shovel and hat down and went for Eric Harris. He yelled to him, "Black Boy, I'm not your flunkie. You go to work or go hone." He went up to him and taken the shovel out of his hand and threw it away and told him he could go home cause he didn't need him on the railroad anyway. So they went on back to work. We tied up and come in. At 4:00 I told them they could go home. Michael pulled his hat off and hung it up on the post and I walked away from the car and lost sight on them and I turned to come back and get my keys and I saw Richardson running and tic, he was chasing after hia. So he had a distance on tic's, so tic's threw something

                      Award Number 23987 Page 2

                      Docket Number MW-24075


    "(a rock or something) and Davenport said it hit his car. So he opened up his turtle shell and got his gun. So I come to them and asked them "What was the matter?" Michael said he went over to Eric's car to talk to him and Eric's he come out with the stick and hit him on his hand. That's it."


Mr. J. D. Harris, a laborer on Extra, Gang No. 44, testified that he saw Richardson throw his hat down, went to Eric Harris and took his shovel. Mr. Richardson threw the shovel in the bushes and told Harris to get to work or either go here at approximately 2:30 P.M.

 Mr. J. L. Ovens, laborer, corroborated the testimony of J. D. Harris and D. Williams that Richardson and E. Harris were arguing and that Richardson threw the shovel. Mr. Ovens also corroborated Acting Foreman Williams' t approximately 4:00 P.m. Claimant E. Harris started chasing Richardson and threw a rock at Richardson. He further testified that Davenport took a shotgun out of his car after the rock was thrown.

 Laborer Richardson testified that he started arguing with Claimant Harris because, he felt that the Claimant was not doing his share of the work. He further testified that later in the same day, Claimant Harris started chasing him and threw a rock at him.

 Laborer Davenport's testimony corroborates the testimony of Richardson., Ovens, Williams and J. D. Harris.

 The Carrier maintains that the previously mentioned testimony shows that the Claimant and Mr. Richardson had as argument during working hours and they started arguing again after hours on the property which resulted in as altercation. This incident could have had very serious consequences when a third employs brought out a shotgun.
The Carrier maintains that the Claimant's behavior was improper for an employs (Second Division Awards 6173, 1659, 2191, 2344; Third Division Awards 19538, 20314 and 17269).

 The Carrier asserts that the discipline assessed the Claimant was not too harsh given the Claimant's previous record. Claimant Harris has had several letters regarding being tardy.

 The Claimant maintains that testimony indicates that the Claimant did not engage is any altercation at approximately 2:30 P.M. on February 6, 1980· Extra Gang Laborer Richardson testified that after his words with the Claimant, the Claimant went back to work. This testimony is corroborated by the testimony of Laborer J. D. Harris, Laborer Owens and Laborer Davenport. The Claimant maintains that nothing else occurred other than the reasonable exchange of wards which were warranted under the circumstances.
                      Award Number 239FS7 Page 3

                      Docket Number b1N-2+075


In regards to the second incident, the Claimant contends that what took place occurred after working tours and did not interfere with the Claimant's work. The Claimant abusive and racial remarks by Extra Gang Laborer Richardson and therefore the Supreme penalty of dismissal was not warran:z3.(Second Division Award h098).

 Upon careful consideration of the record the Board concludes that there is substantial evidence on the record to support the charge. The Board, once again, states that such conduct is not appropriate and cannot be condoned. Employes should not engage in such conduct whether provoked or i.mprovoked, Incidents such as this s
        F12MUIGS: 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

        That the Agreement was not violated.


                        A W A R D


        Claim denied.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


        ATTEST: Acting Executive Secretary National Railroad Adjustment Board


        By

    Rosemarie Brascli - Administrative Assistant


        Dated at Chicago, Illinois, this 27th day of August 19°2.