~TL''.a
PUBLIC LAW BOARD N0. 2269 ·
"NA1;ONAL
MEDIATION
BOARD Award No. 4
Case No. 7
f;3
!5 9
2s
AH'7g
File No. 1688 UTU-C
NATIONAL RAILRO lion Union
Parties
hMHI:NkhqWO9
to and
Dispute Illinois Central Gulf Railroad .
Statement This is a request for removal of all discipline and pay for all time lost
of on behalf of Conductor D. D. Hamblin, which was an assessed 120 day suspension
Claim 'for his alleged conduct in connection with an altercation at about 9:15 a.m.,
Tuesday, October 5, 1976, near Gilman, Illinois.-
Findings The Board, after hearing upon-the whole record and all evidence, finds
that the parties herein are Carrier and Employee within the meaning of the.
Railway Labor Act,,as amended, that this Board is duly constituted by.
Agreement dated September 12, 1978, that it has jurisdiction of the parties
and the subject matter, and that the parties were given due notice of the
hearing held.
Claimant was the Conductor of a work train crew, on October 5, 1976, working
with Maintenance of Way Gang No. 227 near Gilman, Illinois. He became
embroiled in an altercation that date. Said altercation involved at least
four members of Maintenance of Way Gang No. 227.
in
Claimant's caboose. The
drinking water for M. of W Gang No. 227 was stored in said caboose.
Claimant and the four Trackmen members of M of W Gang No. 227 received notice
of a formal investigation -which, after several postponments was held January 4,
1976:.
" ...to determine the facts and whether you entered into an
altercation
at
about 9:15 a.m., on Tuesday, October 5, 1976,
~at or near Gilman, Illinois.
. You may arrange for representatives and/or witnesses as provided . -
in your schedule agreements."
C:
P~
zZ~
Award No. 4
Page 2
Carrier, as a result of.said investigation, concluded that all five employees
had been involved in an'altercation and that they had thereby violated Operating
Rules "A" and "I". Claimant Conductor and M of W Trackman Hall each received
a 120 day suspension, while the other three Trackmen received lesser degrees
of discipline for their roles
in
the altercation.
Operating Rules "A" and "I" provide:
"(A) a railroad employee is expected to work safely, obey all
rules, and be faithful, alert and courteous in the discharge of
duty."
"(I) Vicious, quarrelsome, profane or uncivil deportment is
prohibited."
The record reflects that Claimant, in the early morning hours of October 5,
1976 had gone to Gang No. 227's Assistant Gang Foreman, H._R. Young, and
told him "to tell the men, in Gang 227, that if they would behave and didn't
go in and dirty the caboose that they_were welcome to come on the caboose".
Four to seven Trackmen of said Gang No. 227 subsequently entered Claimant's.'
caboose, apparently, for a drink of water. At least one, Trackman Garret,
climbed into the cupalo seats, another Trackman lay down on the seat in the
bunker, in the lower portion
of
the caboose, while several Trackmen stood
around the water container. Claimant told the Trackman sitting down to leave
the seat cushions alone and the altercation began at that point. .The M
of
w
Trackmen,used profane and vulgar language which was offensive and insulting to
Claimant. Claimant, apparently frustrated by what he construed to be the
lack of respect for he and his caboose, vented his anger on the four Trackmen
by verbally abusing them generally and specifically. Some responded with
equal abuse. Claimant told Trackmen Garret and Hall to stop moving the seat
cushions'around because they previously had been getting torn up thereby.
- f-.-acynan
He specificall.y..called, at least one of them, Trai-nman_ Hall, -a "nigger".
~0L6. Z2(o'ql
. · . _ C_
Award No. 4
Page 3
Claimant testified that he "told them to get out of the caboose that a
bunch of "f--king" niggers were not going to take my caboose and tear
it up". The Trackmen reacted by asserting they didn't have to get off the
caboose and they used the repugnant term "you mother f--k-r". Claimant
told Trackman Hall "if I wasn't on the job, I'd,beat the piss out of you. I
don't have to take this from f--k-=g niggers". ,Thereafter, one of the ,
Trackmen, Trackman Hall, who so testified, slugged:- Claimant in the face.
Claimant was grabbed by two Trackmen and held from behind. He broke away
therefrom, searched for and found 'a maul handle. Claimant gave chase to the
Trackmen who ran from the caboose. Claimant.thereafter called the police.
The Employees contend that the Notice of Investigation was defective, that
Claimant was provoked into the, use of vulgar language, that the Trackmen
didn't go to the caboose for a drink. of water, but rather that'they had
gone to accomplish what had occurred because Claimant had barred them off
the caboose, and that the investigation was not fair and impartial because
the Hearing Officer would not admit evidence of events occurring on dates .
prior to October 5, 1976 which had relevance to the October 5th incident.
The Board, as did Carrier, concludes that Claimant participated in the October
5, 1976 altercation. He was the catalyst in this incident.- Black's Law - ;
Dictionary - Fourth Edition -.defines "altercation" as: .
"Warm contentions in words, dispute carried on with heat 'or anger,
controversey, wrangle, wordly contest. Ivory v. State, 128 .
· Tex. CR.R. 408, 81 SW 2d 696, 698."
"Battery" is also defined therein as:
"Any unlawful beating,or other wrongful physical violence or
constraint, inflicted on a human being without his consent.
Goodrum v State, 60 Ga 511"
PGa. ~ z(or,'
·,
C
Award No. 4
Page 4
" ..an unlawful touching of the person of another by the aggressor,
himself,...Kirland v. State, 43 Ind: 153,13 am. Rep. 386,
...The actual offer to use force to the injury of another person
is assault; the use of it is battery, which always includes an
assault; hence the two terms are commonly combined in the term
"assault and battery". Harris v. State, 15.DKL. CR. 369, 177 .
' p. 122, 123."
Claimant testified that he had invited the Trackmen members of M of W
Gang 227 aboard his caboose. Thus, said Trackmen were aboard the caboose
as invitees or guests of Claimant conductor. Yet, Claimant had not received
assurance of any nature that the Trackmen's conduct, against which he had
previously registered complaint with their M of W Supervisors, had or would,
as desired, change. Consequently, when said Trackmen apparently reverted
to the type of conduct of which Claimant disapproved, his ordering them off
the caboose, at that juncture, was the maximum.requirement reasonably
ex
pected of Claimant. However, the manner and language employed by Claimant
to execute such order, to wit - "niggers get off my caboose", was neither
proper nor what should be expected of a Conductor with 27 years of experience.
The refusal of the Trackmen to comply with the order of the Conductor was
sufficient cause for Claimant to have followed'welt established and proper
channels for their removal.from the caboose and/or further resolution of
the problem. There were several reasonable alternatives open. As an illustra
tibn, Claimant could have gone to the M of W Supervisors and requested the
Trackmen's removal and telling them the reasons why. If cooperation thereon
was not forthcoming, then the matter could have been handled through.the Train
Dispatcher, as well as the concurrent filing of charges with the Transportation
Department Supervisors, and a grievance with his Union.
Instead, Claimant chose to handle the removal of the Trackmen personally.
Despite the goading by the Trackmen's invective, Claimant should not have
entered into a vulgar,and profane name calling situation. He clearly should
not. have used imprudent, improper and improvident profane racial slurs,
such
as
"F--king niggers", "niggers get off my caboose", to black Trackmen.
.. PL6 zzCog
,'
~C
Award No. 4
page 5
Nor should Claimant Conductor have assaulted at least one of the Trackmen
with a threat "to beat the piss out of you". Claimant, instead of using
other available means to handle "his problem" had, in effect, issued a
challenge to his "guests" which was accepted.
Conversely, there was no justifiable provocation as to create a necessity.
for the M of W Trackmen to gang up on Claimant. Nor should the Trackmen
have committed a battery by holding Claimant, by punching him, and knocking
his glasses off and breaking them as well as causing an injury to Claimant.
The Trackmen too, had channels by which to handle any grievance that
they thought they may have had.
The notice of investigation is held to be proper. Claimant was well aware
of what he had to defend against. We turn to the procedural objection raised,
' to wit - keeping out any evidentiary reference of other than what occurred
on October 5, 1976. Claimant received excellent representation because,,,
despite efforts by the Hearing Officer to keep such references out of the
hearing record, Claimants Representative
did in
fact have evidence of events,.
prior to October 5, 1976
admitted into
the record. The transcript reflects -
that Claimant had previously experienced problems with members of f1 of W
Gang No. 227 dirtying and damaging cabooses on the Work Train assignment
where said Gang's drinking water was stored. The record further reflected
that Claimant had reported such problems to M of W Supervisors and a
Trainmaster and that Claimant had barred said Trackmen from his caboose.
Consequently, because the hearing record does in fact contain that evidence
which,allegedly was sought.to be kept out thereof, and that the relevance.
.thereof-.was highly questionable,.the Board, in light of the factual occurrance
on October 5th, finds, in such limited circumstances, the'objection
raised to be.without merit.''
PLC 2Z
c
Carrier appears to have based the degree of discipline assessed on the
degree of participation in the altercation. However, equating Claimant's
participation with that of Trackman Hall,is inconsistant with the record.
It is a well settled principle in law that the mere use of words, no matter.
how provoking, provides no basis or justification, as here, for the use of
force. In such circumstances we. find cause tomitigate Claimant's discipline
Award Claim disposed of as per findings.
Order Carrier is directed to make this Award effective within thirty (30) days
of date of issuance shown below.
W. H. Canty, Employ a Member . M.~ Bouchard, Carrier Member
f-<.Ley~ ~C~. _~G~iy
Arthur T. Van Wart, Chairman
and Neutral Member
Issued at Wilmington, Delaware, January 31, 1979.