PUBLIC LAW BOARD N0. 1532

STATEIS-NT OF CLAIM: Claim in behalf o£ former Trackman J. '_-I. Mon
 tantes, a teI y Division, for reinstatement to, his former position
 with seniority, vacation and all other rights unimpaired and com
 Iensation for wage loss beginning :larch 2, 1977.

 FIrIDINGS: This Public Law Board No. 1502 finds that the parties
 erez'n are carrier and Employee within the meaning of the Railway Labor Act, as amended, and that this Board has jurisdiction.

 In this dispute the claimant was charged with having an altercation with another employee. Pursuant to the investigation the claimant was found guilty by the Carrier and was dismissed from the service.

 The Organization contends that the claimant did not receive a lair end impartial investigation and that the superintendent failed torender his decision promptly. The Organization also contends that discipline was not applied equally since the other employee involved in the altercation was not disciplined.

 Tie testimony and evidence reveals that the claimant arose early in the morning and turned on the lights in the outfit car at approximately 5:40 a.m. when some o£ his fellow employes were sleeping. Words between the claimant and another employee resulted in the claimant pulling a knife and attacking his fellow employee. :?hen the fe1lo:o employee tools the knife away from the claimant, the claimant then picked up a frying pan and attempted to hit the other employes with it. The claimant was not successful in that regard as. the other employee took the frying pan away from him.

 The Carrier examined the claimant's record of service and found it ;.o be very poor. The claimant had previously been dismissed from service for a violation of the Carrier's rules and had subsequently .bean reinstated on a leniency basis,

 Tb.e'~Organization had requested that the witnesses be segregated, but the witnesses were allowed- to ha:7e lunch together during tae investiration, and after they had testified they were allowed to remain in the hearing room. The officer in charge of the hearing should notify the witnesses that they are not to discuss their testimony with any other witness until the hearing has been completed.

 However, there is no error in allowing a witness to return to the witness room or to allow the witnesses to have lunch together. After

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a witness has testified he may be excused, and unless one.party states they may wish to recall him as a witness, he may remain in the haring room . In the event either party states they may wish
 to call a witness again, the witness should not be excused buy _.
 .ould be'returned to the witness' room and held subject to being' called. However, herein there is no evidence there was any desire ',:o recall the witness who was allowed to remain in the hearing room. Therefore the Board finds there is no procedural error.

 The evidence is persuasive that the claimant herein was the agressor." in the altercation, and therefore, there was no ,justification for the Carrier to discipline the other employee.

 ,tee °Organization contended that, the claimant did not have' a rule :"'·_·
 book. It is noted that the claimant admitted he had a copy of the
 rule books although they were not current. The rules had not been
 changed and were still in effect on the property, and the evidence
 is pezsuasive that the claimant was aware of the rules,

 The Board has examined all of the Organization's allegations that the claimant was not afforded a fair and impartial investigation end finds no support for such allegations. The Board fails to find Just cause to overiiile the decision'of the 'Carrier:"

 AVARD: Claim denied.

          - ~- f Preston ~/, hoore, Chairman _ -


                              /, 4, t i ^. ../

                              rganizat?.on 1-_4m er


                              Carric~r Member


Dated November 27, 1978