NATIONAL MEDIATION BOARD
PUBLIC LAW BOARD NO. ?048 AWARD NO. 48, (Case No. 48)
BROTHERHOOD OF MAINTENANCE ()F WAY
 EMPLOYES DIVISION - IBT RAIL CONFERENCE
BNSF RAILWAY COMPANY
STATEMENT OF CLAIM:
William R. Miller, Chairman & Neutral Member Samantha Rogers, Carrier Member David D. Tanner, Labor Member

 "Claim of the System Committee of the Brotherhood tat:
1. The Carrier violated the Agreement commencing August 25,
Claimant, Bill ti,. Westtey (159tIfi3I ), was dismissed for entering into an altercation ors August 24, 2009. The Carrier aIted violation of IYIC)W!C)R Rote 1.6 Conduct.
~, when
2. Apt consequence of the violation referred to in art I the Carrier stall
 reinstate the Claimant with all seniority, vacation, all rights unimpaired
 and pay for all wage toss commencing Aunt 25, 2(ltl9, continuing forward
 and/or otherwise made whole."
 (Carrier File No, l4-II9-11I94) (Organization File No. I7_I-1A-()4.CL11jt)
FINDINGS:
Public Law Board No. 7(14, upon the whole record and all the evidence, finds anti holds that Employee and Carrier arc employee and carrier within the meaning of the Railway Labor Act. as amended, and that the Board had jurisdiction over the dispute herein; grad that the parties to the: dispute have participated in accordance to the Agreement that established the Board.

 The undisputed Pacts are that on August ?4. 209, Claimant was involved in a physical altercation with co-worker 1. A~ Sullivan while boarding a company buy at Alma, W1» can car about l 72t> hours while assigned as a Machine Operator on Rail Gang RP()? and because crfthat incident he w=as removed from service pending an Investigation. <>n August 25» 2009, CClaimant and Mr. Sullivan were directed to attend a formal Investigation on September 2. 2009. which was mutually postponed until September 10, 2009, concerning in pertinent part the following charge-

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      "...for the purpose of ascertaining the facts and determining your responsibility, if any, in connection with your alleged entering into a altercation, white boarding the bus at Alma, Wisconsin, on or about 1720 hours on August 24, 2009, while assigned as Machine Operators on RP02."


On September 30. ?009. Claimant was notified that he had teen found guilty charged and he was dismissed.

 It is the Organization's position that the Carrier erred in its dismissal of the Claimant. It asserted that the facts reveal that the Claimant and employee Sullivan were not getting along and Claimant feat as if hr; had been harassed and intimidated. It argued that the Claimant herd approached his supervisors on several occasions about the alleged harassment and on one occasion Foreman Dorrell told Claimant to try try get along, or settle their problems after hours and on the same morning of the incident Dorrell again told him to settle it like risen. According to the Organization that was the same as telling the two employees to settle their differences in a physical manner instead of dealing with the situation. It pointed out that Foreman Dorrell recognized there was a potential problem and chose not to do anything except to tell them to settle. it like risen, he made no attempt to make sure they were separated for a day err two can the rides to end from the lodging facility nor deal with the situation in any manner. It closed by stating that the Carrier did not meet its burden of proof and requested that the dismissal he rescinded and the claim he sustained as presented.

 It is the position of the Carrier that the record substantiates that the Claimant entered into an altercation with a co-worker in violation of Rule 1.6 - Conduct when he struck that employee in the back and instigated the tight. It arued that type of behavior cannot he tolerated in the workplace as it creates a dangerous environment which other employees should neat be subjected to. It concluded that based upon the: seriousness of the charges the discipline: was appropriate and it asked that it neat be disturbed.

 The Board has thoroughly reviewed the record and found that the Investigation vas held in comliance with Rule l3(a) the Discipline Rule and Appendix No. 11. 'Me Board further notes that this is a companion case, to Award No. 47. Case No. 47 of this tribes as bath cases involve the participants (Westley and Sullivan) in the incident that transpired can August ?4. ?Clt>r), which is in dispute.

 There is no disagreement between the parties that the Claimant entered into an altercation with Mr. N. A Sullivan tin August 24. 2009. Claimant argued that Sullivan had harassed him and he felt intimidated which was the causal effect of the altercation. On pages 121 and 13 of the Transcript, Senior Special Agent M. Moody was questioned about the incident wherein he read from his prepared narrative involving his investigative work. He stated in pertinent part the following:
                                  P.L.B. No. 71148

                                  Award No. 48, Case No. 48

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      "...Mr. Westley admitted to having a confrontation with Mr. Sullivan at the door of the bus and stated that he attempted to hit Mr. Sullivan and missed and ended up on the ground and that was all he remembered."


Moody went on to testify that earlier in the day Sullivan reported to his Foreman, Mr. Dorrell that Westley intentionally bumped into him and that Foreman Dorrell talked to both employees and told them to stay clear of each other and behave as adults. Moody's narrative of the events of August 24th were confrmed by Foreman Dorrell during his testimony. Officer Moody further testified can 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: estley 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 firm stance and Mr. Sullivan punches him on the right side of the face and Mr. Westley again goes down." (Underlining Brxxr&s emphasis)


On page 1 9 of the Transcript Moody testified regarding Wes-tley's behavior as follows:

      "...he eras the instizstor of the incident and from what l could tell from the information that I had seen and that I had taken Mr. Sullivan was defending himself" (Underlining Boards emphasis


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 sane time. Neither of them gave way to get on first. 'they then bumped into each other and Norris continued onto the bus. Bill then hit Norris twith s stabbing motion) in the back. Note then turns around. Bill swings misses and falls to the round. Bill then gets a and swings at Norris again. Norris hits Bill and Bill falls to the ground." (Underlining Board`.v emphasis - and the Board notes )or the record that Bill is the Claimant anti Norris is cry-worker Sullivan)


l'ployee, Leigh Orvis. was another witness of the incident anti he wrote in pertinent part the following:

      "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 now had both feet onto bus stairs, facing into the bus. I saw Bill assault

                                  I'.L.B. No. 7()48

                                  Award No. 48, Case No. 48

                                  Page 4


      Norris in the middle of his back with his forearms and closed fist 'hammer st11e'."


      (Underlining Boar&v emphasis)


Witness, Sam Sportsman, offered a similar statement as the two above confirming that Westley was the aggressor.

 Contrary to the Organization's inference there was no showing that Foreman Dorrell suggested to Claimant or Sullivan that there disagreement should be settled with fisticuffs. but instead the record substantiates that he told them to behave as adults. do their work and leave each other alone. Witnesses Hughes and Orvis probably summed it up best that Claimant and Sullivan behaved childish when one would not give: way to the other car the other tried to cut in head. The Claimant suggested that because Sullivan cut in ahead of him he became infuriated and threw the first punch. He did not admit that he struck Sullivan in the back, but instead argued he threw the first punch after Sullivan turned around and stepped to the ground despite the fact that everyone who testified or offered a written statement verified that the Claimant struck Sullivan in the back while they were getting on the bus and theca threw the first punch while they were can the ground. Even assuming for the sake of argument that the Claimant's testimony was accurate it is evident that he attempted to strike the first blow, thus he was the instigator of the altercation. It is clear that substantial evidence was adduced at the Investigation that the Claimant entered into an altercation can August ?4, 209, and the Carrier met its burden oil' proof that he was guilty as charged.

      The only issue remaining is whether the discipline was appropriate. At the time of the

incident the Claimant had 15 years service with a good work record, unfortunately he was guilty
 ofa serious infraction wherein he was the instigator of workplace violence. The Board has
 determined that there was no grounds for mitigation of the discipline, therefore, vac find and hold
 that the discipline will not be rescinded as it was not contrary to the Carrier's Policy fear
 h;mfrlovee Performance Accountability fPfI'A).

                  AWARD


      Claim denied.


W~IIi~v R_ Miler. Chairman &. Neutral Membt,-rl

 Samantha Rogers, C'arriermbL-r David D. Tanner, Employee Member

 Award Date: ~ -''