Public Law Board No. 4161
Parties to Dispute
Brotherhood of Maintenance of )
Way Employees ) Case No: 13
vs )
) Award No. 12
Burlington Northern Railroad )
STATEMENT OF CLAIM
1. The dismissal of Section Laborer J. G. Palma for
alleged "violation of Maintenance
of
Way Rules
700, 701(A), 701 (B) and 702 for fighting and
disorderly conduct" was unreasonable and excessive.
2. The Claimant shall be reinstated with seniority and
all other benefits unimpaired, his record cleared
of the charge leveled against him and he shall be
compensated for all wage loss suffered.
FINDINGS
On October 15, 1981 the Claimant was advised to attend an
investigation to determine facts and establish responsibility,if
any, in connection with his alleged fighting and disorderly con- -_
duct while on duty about 11:45 AM on October 15, 1981 at Pasco,
Washington. After request for postponement the investigation was
held on October 28, 1981. On November 17, 1981 the Claimant was
advised that he had been found guilty as charged and he was dismissed
from service. After the discipline was appealed by the Organization
up to and including the highest Carrier officer designated to hear
-
such this case has been docketed before this Public Law Board for
final adjudication:
According to the record the Claimant became involved in an
altercation with another Laborer at approximatley 11:45 AM on-the
morning of October 15, 1981. During this altercation the Claimant
attempted to strike his fellow employee with a two by four, and
v
HEM
MAR 23 187
10
urrlt..h
yr
Public Law Board No. 4161 (Award No. 12; Case No. 13)
with his fists.
The Claimant does not deny that he attempted to strike his
fellow employee. His defense rather is that he was provoked into
engaging in the altercation. The allegations of provocation in
the record come from the Claimant's testimony at the investigation
without corraborating evidence to support such. Irrespective of
the Claimant's motives, however, or the other conditions present at
the time which caused him to behave as he did on the morning of
October 15, 1981, such cannot be reasonable defense for his threatening behavior toward his fellow employee. Numerous arbitral forums
in both the railroad industry and in other industries have precedent- -
ially held that it is inappropriate for employees to seek such
potentially dangerous self-help measures in lieu of filing a grievance
under the protection of their contract if they are provoked (PLB
2206, Award 23) and this Board agrees with such conclusions. There
is additional precedent which holds that threatening behavior to .
fellow employees merits discharge (PLB 2206, Awards 32 & 39) and that
Carriers are not obliged to keep in their service "...employees who
engage in altercations or brawls".(Third Division 23038; also 22616;
and Second Division 8481). On merits the claim cannot be sustained.
AW D
Claim denied.
dward
L.
-Suntrup;~Neutral
Member
B. W. Potter, arrier em er
/Xar1 - -
~~ , p7y __
ut.o ee member
Date: