PUBLIC LAW BOARD NO. 7048
AWARD NCI. 47, (Case No. 47)
BROTHERHOOD OF MAINTENANCE OF WAY
EMPLOYES DIVISION = IBT RAIL CONFERENCE
vs
UNSF RAILWAY COMPANY
William R= Miller, Chairman &: Neutral Member
Samantha Roers. Carrier Member
David D. Tanner. Labor Member
STATEMENT OF CL
"Claim of the System Comittee of the Brotherhood that:
1. The Carrier violated the Agreement commencing August 25, 2009, when
Claimant, Norris A. Sullivan (176668), was dismissed for entering into
an altercation an August 24, 2009. The Carrier alleged violation of MOWOR
Rule 1.Conduct.
2. As a consequence of the violation referred to in part I tire Carrier shall
reinstate the Claimant with all seniority, vacation, all rights unimpaired
and pay for all wage loss commencing August 25, 2009, continuing forward
and/or otherwise made whole."
(Carrier File No. 14-09-11182) (Organization File No. 170-I3A2-094.CLM)
FINDINGS:
Public Law Board No. 71148. upon the, whole record and all the evidence. finds and holds
that Employee and Carrier are employee anti carrier within the meaning of Railway Labor
Act,, as amended; and that the Board had jurisdiction over the dispute herein; and that the parties
to the dispute have participated in accordance to the Agreement that established the; Board.
The undisputed facts are that can August 24. 2009. Claimant was involved in a physical
altercation with co-worker 13. E, Westley while boarding a company bus at Alma, WI, on or
about 1720
hours while assigned as a Machine Operator on Rail Gang R1'0? and because of that
incident he was removed tram service pending an Investigation. Can August 2.5, 2009, Claimant
and Mr. Westley were directed to attend a formal Investigation on September ?, 2009, which was
mutually postponed until September 10. 2009, concerning in pertinent part the folio,,using charge::
P.L.B. No. 7048
Award N«. 47, Case No. 47
Page 2
"...for the purpose of ascertaining the facts and determining your responsibility;,
if any, in connection with your alleged entering inter a altercation, while boarding
the bus at Alma, Wisconsin, on or about 1720 hours on August 24, 2tH19, while
assigned as Machine Operators on RP02."
(fin September 30, 2009. Claimant was notified that he had been
tbund
guilty as charged
and he was dismissed.
It is the Organization's position that the Carrier erred in its dismissal of the Claimant. It
argued that the facts reveal that the Claimant merely defended himself from an aggressive
attacker. Additionally. it argues that if the Carrier had produced any evidence (which it did not)
to support their charges. the discipline issued was excessive in proportion to the allegations. It
closed by stating that the Carrier did not meet its burden of proof and requested that the dismissal
be rescinded and the claim he sustained as presented.
position of the Carrier that the record substantiates that the Claimant entered inter
an altercation with a co-worker in violation of Rule 1.6 - Conduct when he struck that employee
causing a fractured cheekbone. It argued that type of behavior cannot be tolerated in the
workplace as it create a dangerous environment which other employees should not be subjected
to.
It concluded that based upon the seriousness of the charges the discipline was appropriate
and it asked drat it not be disturbed.
The Board hay thoroughly reviewed the record and found that the Investigation was held
in compliance with Rule Ira) the Discipline Rule and Appendix o.
l l a
The Board further
notes that this is a companion case to Award No. 48, Case No. 48 of this tribunal as hour cases
involve the participants (Sullivan arid Westley,> in the incident that transpired on August 24.
20(19. which is in dispute.
There is no disagreement between the parties that the Claimant entered into an altercation
with Mr. I3. E. Vv'estley on August 24. 2(?09. Claimant argued that Westley was the aggressor
and he merely defended himself to avoid bodily harm. Can pages 12 and 1
3
) of thc'I°ranscript.
Senior Special Agent lit. Moody was questioned about the incident wherein he read from his
prepared narrative involving his investigative work. lie stated in pertinent part the following:
"...Mr. Wtlev admitted to having a confrontation with Mr. Sullivan at the
door of the bus and stated that he attempted to hit Mr. Sullivan end missed
and ended up ors the ground end that was all he remembered.
Moody went on to testify that earlier in the day Claimant reported to his Foreman, Mr. Dorrell
that 11~cstley intentionally humped inter him and that Foreman Dorrcll talked to both employees
P.L.B. No. 7048
Award No. 4'7, Case No. 4'7
and told them to stay clear ref each other and behave as adults which was confirmed by I)orretl in
his testimony. Officer Moody further testified on page 13 of the Transcript as follows:
"At the end of the day while the crew was boarding the bus Mr. Sullivan and
Mr. Westley approached the door of the bus at about the same time. Mr. Sullivan
enters first and Mr. Westley strikes him in the center of the back. Mr. Sullivan
turns around and Mr. Westley is in a fighting stance. Mr. Westley throws a punch
at Mr. Sullivan missing him and ends up on the ground. Mr. Westley then gets up
again taking a fighting stance and Mr. Sullivan punch" him on the right side of the
face and her. Westley again goes down."
On page i of the Transcript Moody testified regarding Westley's behavior as follows:
"...he was the instigator of the incident and from what 1 could tell from the
information that I had seen and that I had taken Mr. Sullivan was defending
Ken Hughes, the Bus Driver who witnessed the altercation wrote in his statement the
following:
"Viewing; the incident from the driver's seat, Norris and Bill were attempting;
to get on the bus at the same time. Neither of them gave way to et on first. They
then bumped into each ether and Norris continued onto the bus. Bill then hit
Norris (with a stabbing motion) its the back. Norris then turns around. Bill swings,
misses, and falls to the ground. Bill then gets back up and swings at Norris again.
Norris hits Bill and Bill falls to the ground."
(Underlining Board's emphasis - crud the
Board notes
fir the record that Norris is the Claimant crud
Bill is co-worker Westlev)
I'mployee. Leigh ttrvis, was another witness of the incident and he wrote the ibllowin:
"I saw Bill & Norris meet at the bus door, Norris proceeded onto the stair, Bill
nudged into Norris like kids cutting; into a lunch line with his forearm and elbow°.
Norris row had both feet onto bus stairs, facing into the bus. I saw Bill assault
Norris in the middle of his back with his forearms and closed fist "hammer style".
Then as Norris turned around and stepped to the ground, Bill was jumping around
like boxers with both fists up saying Cmon, emon. Bill was elevated on a berm.
Norris' hands were down. Norris said "you only have to swing I time". Bill
attacked Norris, feet almost off the ground with a closed fist towards Norris' face
from the berm of the road. Norris moved left avoided contact, Bill lauded an the
step & the bus then the ground. Norris backed away, towards the front of the bus.
I was note= 2 feet away, moving backwards at a tripping; pace. I had the same view
P.L.B. No. 7048
Award No. 4?, Case No. 47
as Norris. Bill immediately, flipped out, headed towards Norris with his fist up
for another
swing.
But Norris and I were still moving backwards. If Norris was
tackled or ducked, I would have been assaulted.
Until
the final moment, Norris
had to defend himself, he stopped, took l swim;, connected to Bills lead. I'm sure
it was head level, I did not see where on the head Bill he was hit. It knocked Bill
down, be was loopy and stumbled to get to hiss feet. Norris did not follow up, or
towards Bill. No more confrontation, no veiling."
(fJnderlining Roard`s emphasis)
Witness, Sam Sportsman, offered a similar statement ass the two above confrming that
Westley was the; aggressor.
Witnesses Hughes and Orvis probably summed it up lest that Claimant anti Westlev
behaved childish when one would n«t give way to the other or the other tried to cut in ahead.
The Organization is correct that Mr. Westley was the instigator of the altercation, however. its
;argument that the Claimant was "merely defending himself overrsiplifics the incident, as it
overlooks the fact that when Westlefrst pushed car punched the Claimant in the back while he
was on the step he diet not proceed onto the bus, but instead chose to step tack clown to the
ground and confront Westley. Claimant male the mistake of accepting Wcstley's invitation to
fight and even challenged him to do something when according to witness Orvis he said: "you
only have to swing I time". We understand that it can be difficult to walk away, and simply
report the incident when an instigator is provoking confrontation, but that would have been the
wise thing to have dune. It is clear that substantial evidence was adduced t the Investigation
that the Claint entered into nn altrcation can August 4. 2009.
The only
issue remaining is whether the discipline was appropriate. The Board does not
excuse the Claimant's behavior he was culpable for his actions. However, glue to mitigating
circumstances anti the fact that the Claimant was not the instigator of the incident we have
determined that even though the Carrier had reason to invoke discipline
for
Claimant's
participation in an altercation the discipline was too severe and it is reduced to a lengthy
suspension which is corrective in nature and in accordance with the Carrier's Policy for
Employee Performance Accountability (PEPAj. Therefore, the Board finds and holds that the
Claimant is to be reinstated with seniority intact and all other rights unimpaired without back pay.
Upon return to service Claimant's disciplinary status will a considered to be at the PEPA
Serious Rule Violation level covered y Paragraph (c.)
P.L.B. No. 7048
Award No. 47, Case No. 47
Page
AWARD
Claim sustained
in
accordance with the Findings and the Carrier is ordered to make the
Award effective can car before 30 days
following
the date the Award is signed by the parties.
William R. Miller. Chairman & Neutral Member
Samantha Roers. C'aurier 'emr
Award Date:
David D. Tanner, Employee Member