Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 28244
THIRD DIVISION Docket No. MW-27443
90-3-86-3-802
The Third Division consisted of the regular members and in
addition Referee John C. Fletcher when award was rendered.
(Brotherhood of Maintenance of Way Employes
PARTIES TO DISPUTE:
(Southern Pacific Transportation Company (Eastern Lines)
STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:
(1) The ten (10) days of suspension imposed upon Machine Operator
D. W. Hicks for alleged violation of Rules 607 and 608 was unjust and on the
basis of unproven charges (System File MW-86-18/445-57-A).
(2) The claimant's record shall be cleared of the charges leveled
against him and he shall be compensated for eighty (80) hours at his straight
time rate of pay."
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.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was involved in a minor altercation with another employee
while on the job on November 13, 1985. Both were disciplined with ten day
suspensions. Claimant appealed his suspension and an Investigation was held,
following which the suspension was affirmed.
We have examined the transcript of the Investigation and find that it
clearly establishes that the other employee, not Claimant, provoked an outbreak of cursing between t
first blow. While it is true that Claimant could have avoided the incident by
not seeking a ride in the truck the other was operating, and also could have
walked away once the incident became heated, his overall conduct, at the time,
has not been established to warrant discipline.
The discipline assessed will not be allowed to stand.
Form 1 Award No. 28244
Page 2 Docket No. MW-27443
90-3-86-3-802
A W A R D
Claim sustained.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Attest r
Nancy J er - Executive Sec etary
Dated at Chicago, Illinois, this 1st day of February 1990.