Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 26821
 THIRD DIVISION Docket No. MW-26681
 88-3-85-3-428
 The Third Division consisted of the regular members and in
 addition Referee Herbert L. Marx, Jr. when award was rendered.

 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

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

 (1) The sixty (60) days of suspension imposed upon Laborer S. D. Roberson for responsibility 'in connection with an altercation that occurred between you and Mr. K. A. Nichols on December 28, 1983', was without just and sufficient cause and on the basis of unproven charges (System File 49-164).

 (2) The claimant's record shall be cleared of the charges leveled against him and he shall be compensated for all wage loss suffered."

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

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Based on an incident occurring at 7:45 a.m. on December 21, 1983, the Claimant was withheld from service and made subject to an investigative hearing to determine his res and another employee.

 After both the Claimant and the other employee left the bus bringing them to their work place, t approached the other employee, striking him in the face and causing his nose to bleed. The record further shows, with somewhat less precision, that there was an interchange between the two employees while they had been traveling together with others on the bus. The other employee either shoved and/or slapped the Claimant during the course of an apparently hostile discussion while on the bus.
 Form 1 Award No. 26821
 Page 2 Docket No. MW-26681
 88-3-85-3-428

 The other employee was not withheld from service at the time and, as a result of the investigative hearing, was assessed a disciplinary suspension of 15 days. The Claimant was assessed a disciplinary penalty of 60 days, which happened to coincide with the length of time he had been held out of service.

 While not condoning the action of either employee, the Organization argues that the Claimant was subject to unfair treatment in that his disciplinary penalty was more s finds, however, that the difference in penalty was warranted. Whatever had occurred on the bus, it remains the fact that the Claimant -- after an interval -- deliberately appr without further conversation. This demonstrated that he was a proven aggressor, at least in this pha Carrier exercised its right to determine appropriate penalties, based on the hearing record, and the Board has no reason to question the Carrier's action.






Attest:
      Nancy J. - Executive Secretary


Dated at Chicago, Illinois, this 25th day of February 1988.