PARTIES TO DISPUTE:

STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood that:
(1) The thirty (30) days of suspension imposed upon Bus Driver J. Holtzman for alleged violation of "Rule 4007· and 'Rule J· was unwarranted and on the basis of unproven charges (System Docket NEC-BMWE-SD-525D).
(2) The claimant's record shall be cleared of the charges leveled against him and he shall be compensated for all wage loss suffered.
OPINION OF BOARD: Bus Driver J. Holtzman was suspended for thirty days for
 an alleged violation of Rules 4007 and J for engaging in on
 the job horseplay which injured another employe.
Safety Rule 4007 mandates that employe conduct must be free from 'scuffling, practical jokes or horseplay while on duty or on company property'. Rule J -reads in pertinent part that 0-horseplay ...interfering with other employees while on duty is prohibited...'.
The Project Engineer in charge of the Anchoring gang investigated an accident suffered by Ed Badyna that day. Badyna fell off the back of a truck and broke his collar bone during lunch September 27, 1982. Two witnesses gave statements stating that there was horseplay, food throwing and wrestling and that Badyna, standing in back of the truck, fell over the rear of the vehicle and another employe fell on top of him.
Holtzman was one of the five employes throwing food at each other. One witness stated that, when Badyna fell, Holtzman was sitting inside the truck. Holtzman said that he was in the passenger seat but another witness stated that Holtzman was not in the truck but was wrestling. As she put it, "All of us was sitting inside first, when they got to wrestling - they got out and started running around and flipping each other and carrying on, you know, horseplaying or whatever, and that's when Al Anderson and Ed Badyna got, were wrestling together. First they all was, then them two got to wrestling and that's how he got hurt." She also stated that Ed Badyna's brother told her and other employes that management should not be informed that his brother had been horseplaying or that the brother would have them fired. He explained saying that everyone was to say that Ed had hurt his collar bone lifting a tool cart from the truck.

                  Award Number 25530 Page 2

                  Docket Number MW-25859


While Holtzman admitted that there had been horseplay and that he and other employes threw cupcakes at each other, he asserted that he was sitting in the truck discussing what work he would do next when informed that his brother had gotten hurt. Be claimed that he had ceased throwing food before the incident occurred and didn't see what had happened.
The evidence is insufficient to establish that Claimant's food throwing contributed directly to the wrestling incident which caused Ed Badyna's injury. While a 30 day suspension is excessive, the food fight did, however, occur on Company property and Holtzman admitted his participation to that extent. While there is~conflict as to his wrestling, his active involvement in horseplay that day justifies discipline. The Board finds that Claimant's suspension should be reduced to.15 days.
        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
        That the discipline was excessive.


                        A W A R D


        Claim sustained in accordance with the Opinion.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


Attest:
 Nancy ver - Executive Secretary
        Dated at Chicago, Illinois, this 28th day of June 1985.


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