- A14ARD N0. 33









OPINION OF THE BOARD:
 This Board upon the whole record and all the evidence finds and
 holds that the Employes and the Carrier involved-in this dispute are
 respectively Employes and Carrier within the meaning of the Railway
 Labor Act as amended and that the Board has jurisdiction over the dispute
 involved herein.
 On June 78, 1981, The Carrier directed a letter to the Claimant.
 It read in pertinent part as follows:






          Charge: To determine your responsibility in connection with

                the altercation with a fellow employee while on _

duty; which resulted in an injury.at approximately
 7:30 a.m. on June 18, 1.981, at the East Five
 Yard Office."
 Subsequent to the investigation, the Claimant was dismissed. The Carrier
 argues that~the-charge against the Claimant was proven and the dismissal
 assessed warranted. The Claimant admitted that he was involved in an
 altercation and that he cut Mr. Glover with a knife. By his own admission
 the Claimant was in-violation of Rules 7 and 11 which read as follows:

      "7. Employes are prohibited from being careless of the safety of themselves or others, disloyal, insubordinate, dishonest, immoral, quarrelsome or otherwise vicious or conducting themselves in such a manner that the railroad will be subjected to

      ' criticism and loss of good will, or not meeting their personal obligations.

11. Playing practical jokes, scuffling, wrestling or fighting while on duty or on Company property, as well as throwing of tools,. materials or other objects is prohibited." The Carrier argues that it cannot. condone physical altercations of this nature and in view of the serious nature- of the charge, discharge is justified. The Organization submits that prior to starting time on June 1^0, 1981, the Claimant and another employe (L. Glover), who was having an affair with the Claimant's wife, became involved in an altercation. They assert that the altercation was preceded by verbal affront and physical aggression from Mr. Glover. It is of particular importance to the Organization that even though Glover was the aggressor, he was.assessed only a 60-day suspension while the Claimant was dismissed from service. Such action is discriminatory and cannot stand. To this end, they site Third Division Award 23855. Thus under the circumstances the Carrier's decision to dismiss the Claimant represents an abuse of discretion and excessive discipline.

                        _2 _

' PLB-2960

                                              AWD. N0. 34

                                              Page 3


It is the conclusion of the Bard that there is more than substantial evidence to support the charge and to support the Carrier's decision to discharge the Claimant. There is little doubt that the Claimant during an altercation with Mr. Glover assaulted him with a knife. Mr. Rhoden,.in a clear and unequivocal manner, admitted to cutting Mr. Glover with a knife. The Organization argues that the discharge is unfair, suggesting that Mr. Rhoden's actions were in defense to Mr. Glover's aggression and thus were provoked. They also note that discharge is excessive in comparison to the 60-day suspension received, by Glover. However, after reviewing the record, it is the conclusion of the Board that a reasonable basis existed to distinguish the treatment of Glover and Rhoden based oa their varying degrees of responsibility. Even assuming for the sake of argument that Glover was the aggressor and acted in the manner toward Rhoden as Rhoden claimed, nothing would justify the assault with a deadly weapon. In respect to Rhoden's conduct, it is extremely serious, more so than Glover's and thus is deserving of discharge.

AWARD

Claim denied.


                    Gil Vernon, Chairman


. D. Crawford; Ca ier Member H. G. Harper, Employe Member

Date: ~°., l f3