The Claimant in this case was working as a Signalman at Flint, Michigan, when on September 23, 1998, he became involved in a physical altercation with his Foreman at which time the Claimant struck the Foreman in the face. The Claimant was thereupon withheld from service by the Carrier. By notice dated September 25, 1998, the Claimant was notified to attend a formal Investigation scheduled to be held on October 6,1998. The Claimant appeared at the Hearing as instructed. He was ably represented by the Organization at the Hearing. He stated, "I believe I have," when asked if he had been properly notified of the Investigation, and replied, "Yes," when asked if he was ready to proceed with the Hearing. Following completion of the investigatory Hearing, the Claimant was notified by letter dated October 21,1998, that he was dismissed from service. Appeals on the Claimant's behalf were handled by the Organization in the usual manner on the property. Failing to reach a satisfactory resolution of the dispute during the onproperty handling, the case has come to the Board for final and binding adjudication.
It is the Organization's initial position that there was a violation of the provisions of Rule 42 by the Carrier in that the Hearing which was held on October 6, 1998 was beyond the allowable time limits specified in Rule 42. Therefore, it contends, the dismissal from service was a violation of the Claimant's rights and he should be reinstated to service with full pay for time lost. The Organization further argues that the altercation in which Form 1 Award No. 36042
the Claimant was involved could have been avoided if the Carrier had given serious consideration to the underlying serious problems that apparently existed between the Claimant and his Foreman. It contends that the employer has a responsibility to make an effort to avert known potential problems before they become major issues.
During the on-property handling of this dispute, the Carrier acknowledged that the Hearing was, in fact, held on the 13th day from the date on which the Claimant was withheld from service. Accordingly, the Carrier compensated the Claimant for the threeday delay. On the merits, it is the Carrier's position that the testimony in the Hearing record, including the Claimant's own admissions, fully supports the charges as made and that the actions of the Claimant justify dismissal from service. The Carrier contends that the three-day delay in holding the Hearing did not prejudice the Claimant's right to a fair and impartial Hearing and cannot be the sole basis for overturning discipline for an otherwise proven offense.
On the issue of the alleged time limits violation, the Board has the benefit of considerable historical precedent. When reviewing similar circumstances, the Board has said:
Therefore, it is our conclusion in this case that the three-day delay in holding the Investigation did not prejudice the Claimant's presentation of the facts or testimony relevant to his position in connection with the altercation that occurred.
Our review of the testimony found in the Hearing record, including the Claimant's own recounting of the series and sequence of events that culminated in the Claimant striking the Foreman in the face, is significant in our consideration. Assuming without conceding that there might have been some underlying, unresolved history between the Claimant and his Foreman, there is no credible evidence to suggest that this event was anything other than an unprovoked attack by the Signalman on the Foreman. It was not an act of self-defense. The Claimant's cavalier testimony that he followed the Foreman into the shop after the Foreman walked away from the initial encounter and then removed his glasses and moved toward the Foreman "as a form of posturing, as a dog shows his teeth to let you know to back off" is clearly indicative of the Claimant's intentions. The totality of the Claimant's testimony supports the conclusion that he was indeed guilty of using violence in his workplace. Dismissal from service for such proven actions is neither arbitrary, capricious, nor excessive. Therefore, the claim is denied.
This Board, after consideration of the dispute identified above, hereby orders that an Award favorable to the Claimant(s) not be made.