In the Matter of ) National Mediation Board
 Administrator
 BROTHERHOOD OF MAINTENANCE OF )
 WAY EMPLOYES, )
 Organization, )
 and )

 UNION PACIFIC RAILROAD COMPANY ) Case No. 70
 (former Western Pacific Railroad), ) Award No. 70
 Carrier. )
 1



                    MEMBERS OF THE BOARD


                  Employes' Member: Rick Wehrli

                  Carrier Member: D. A. Ring

                  Neutral Member: John B. LaRocco


            ORGANIZATIONS STATEMENT OF THE CLAIM


      1. That the Carrier violated the provisions of the current Agreement

          when it assessed Laborer Roy E. Haile with a Level 5 Dismissal.

          Said action being excessive, unduly harsh and in abuse of discretion.


      2. That the Carrier now reinstate Claimant to his former Carrier position

          with seniority and all other rights restored unimpaired, with pay for

          all loss suffered and his record cleared of all charges. (960150)

Public Law Board No. 3241 Page 1
 Case No. 70, Award No. 70

                    OPINION OF THE BOARD


This Board, after hearing upon the whole record and all evidence, finds that the parties herein are Carrier and Employe within the meaning of the Railway Labor Act as amended; that this Board has jurisdiction over the parties and the subject matter of the dispute herein; that this Board is duly constituted by an Agreement dated July 23, 1982; and that all parties were given due notice of the hearing held on this matter.

Pursuant to proper notice dated August 24, 1995, the Carrier charged Claimant, a Laborer, with engaging in a physical altercation with a Welder while on duty and on Carrier property on August 22, 1995.

In Award No. 68, this Board set forth the relevant facts adduced at a separate hearing where the Welder was the charged employee. Many of the facts set forth in Award No. 68 are found in this record. Like the Welder, Claimant admitted fighting and contended that, during the fight, he was only trying to protect himself. In addition, Claimant asserted that he started to leave the office before the fight but he returned to confront the Welder because the Welder called Claimant some insulting names.


      Following the investigation, the Carrier dismissed Claimant from service.

For the reasons set forth in Award No. 68, the record contains substantial evidence that Claimant fought with the Welder. As we discussed in Award No. 68, identifying the provoking party, if any, is irrelevant because both men aggressively wrestled each other to the ground. Nevertheless, the record in this case indicates that Claimant had at least one opportunity to avoid any physical altercation. Before the fight, he almost left the office. He should have continued out the

Public Law Board No. 3241 Case No. 70, Award No. 70

 Page 2

 door.' Name calling is hardly a justification for returning to the office to resume an argument which

 escalated to fisticuffs.

 Employees must resolve their differences by peaceful, non-violent means. Claimant has a hair trigger temper which he cannot control. In addition, Claimant worked for the Carrier for only one year.' Due to his short length of service coupled with the seriousness of his offense, we must

 affirm the assessed discipline.

 Claim denied.

 Dated: February 5, 1998

 i,

    L'

    Rick Wehrli

Employees' Member

 situation.
AWARD AND ORDEI
D. A-
 Carrier Carrier ember

 ' Thus, even if Claimant was not the provocateur, he had an opportunity to retreat and effectively diffuse the tense
These factors distinguish Claimant from the Welder.