PUBLIC LAW 80ARD N0. 2444

Award No. 1

- Case No. 1

Docket No. MW 78-77

Parties Brotherhood of Maintenance of Way Employees

to and

dispute: Southern Pacific Transportation Company (Texas and Louisiana Lines)

Statement 1. Carrier violated the effective Agreement when Laborer Raul Hernandez

of was unjustly dismissed March 21, 1978.

Claim: 2. Claimant Hernandez shall be reinstated to his former position, with

pay for all time lost and with all vacation, seniority, and all other

eights unimpaired.

Findings: The Board, after hearing upon the whole.record and all evidence, finds

that the parties herein are Carrier and Employee within the meaninq of

the Railway Labor Act. as amended, that this Board is duly constituted by

Agreement dated July 19, 1979, that it has jurisdiction of the parties

and the subject matter, and that the parties were given due notice- of the

hearing held. -

Claimant, an extra gang Laborer, on March 21, 7978, was attached to and

working with Extra Gang 354. He was called out to assist in changing some

broken rail between switches at Sanderson, Texas at 5:00 AM.

After reporting to the job site Claimant entered into an altercation with

his foreman about 6:20 AM which resulted in a personal injury to said

foreman. Claimant received the following from his Division Engineer,

dated March 21, 1978:

"Your action on March 21, 1978 are in violation of Rules 801 and 802 of

Rules and Regulations for the Maintenance of Way and Structures; and

for your violation of such rules on March 21 you were dismissed from

service-of Southern Pacific Transportation Company at 7:15 AM, March

21, 1978." -

Claimant requested and received a formal hearing thereon which was

held April 11, 1978.Thereafter Claimant was advised April 17, 1978:

i " ' Page 2 O44y -Award No. I
"In line with your request you were accorded the hearing on April 11,
1978; and' my careful review of testimony taken at the hearing revealed
the charges were sustained. Therefor, this is to advise that your
dismissal from service of Southern Pacific Transportation Company is
hereby reaffirmed."
The Company Rules cited read:
"Role 801. Employees will not be retained in the service who are
careless of the safety of themselves or others, insubordinate,

quarrelsome or otherwise vicious,... Any act of hostility, misconduct

...is sufficient cause for dismissal and must be reported."

"Rule 802. Courteous.... Courteous deportment is required of all employees in their dealings with ... each other.

Employees must not enter into altercations, ...while on duty."

The function of this Board in disciplinary matters is to determine whether Claimant is accorded a fair hearing, to determine whether sufficient evidence was adduced to support the conclusions by the Carrier and-to - determine whether the discipline assessed was reasonable. In the instant case we-find that Claimant was accorded the due process to which he was entitled under his discipline rules.

There was sufficient evidence adduced to support Carrier's conclusion as to Claimant's culpability. Claimant admitted that he had struck his foreman in the face as well as admitting that he had also kicked him in the chest when he was down. While there may be a difference in the number of times that Claimant said he hit his foreman and the number that the foreman said he hit him, the fact remains nonetheless that Claimant had admitted-h-is guilt. The Board finds no provocation so great in the testimony to warrant the vicious action taken by Claimant in striking his foreman.

Claimant having admitted his guilt there is nothing to consider except the degree of discipline imposed. In the circumatances involved, we find the discipline not unreasonable. This claim will be denied..

AWARD: Claim denied.

M. A. Chri ie, Employee Member . : Goyne, Carr Member

Arthur T. Van Wart, Chairman

- and Neutral Member _- -.-----

Issued at Salem, New Jersey, February 7, 1980.