Brotherhood of Maintenance of Way Employes
 PARTIES TO DISPUTE: and
 Burlington Northern and Santa Fe Railway
 (Former ATSF Railway Company)

 STATEMENT OF CLAIM:














FINDINGS AND OPINION:
Upon the whole record and all the evidence, the Board finds that the Carrier and Employees ("Parties") herein are respectively carrier and employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction of the dispute herein.

 The Claimant in this case, Mr. Samuel R. Herroz, was employed by the Carrier in its Maintenance of Way Department in 1996. He was working as a Machine Operator on the Carrier's Northern California Division when an event occurred on March 18, 2004, which resulted in his being held out of service pending the result of an investigation. Notice of the charges and investigation was served on him by certified mail on March 22, 2004. The notice, over the name of Division Engineer D. R. Gilliam (whose name appears in a font generated by a word processor which simulates a handwritten signature), reads as follows, in pertinent part:

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The Rules which were referred to in the above notice read as follows:

 Maintenance of Way Operating Rule (MWORI 1.6










MWOR 1.7


MWOR 1.1








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 · Before beginning work
 · Before performing new tasks
 · When working conditions change

Maintenance of Way Safety Rule (MWSRI S-1.2.9


MWSR S-1.3.1


The investigation was held on the appointed date. A transcript of testimony and evidence was prepared and appears in the record before this Board. The Claimant was present and ably represented by the Organization's Assistant General Chairman. He offered testimony and he and his representative were able to question all witnesses who were present. Assistant Roadmasters Mark J. Ramirez and Jason R. Hill, and the Foreman of Gang SC-21, Mr. Gregory S. Jordan, appeared as witnesses for the Carrier. Mr. Hill submitted written statements prepared by four other employees on Gang SC-21, as well as a written statement by Foreman Jordan. The Claimant entered his own written statement which he had prepared for the Organization's offcers.

 Although there is substantial conflict in the statements and testimony, in summary the record shows that when Gang SC-21 was assembled on the night of March 18, 2004, a job briefing was held, as required by the Carrier's rules. During the course of that briefing, Foreman Jordan noticed that the Claimant, Mr. Herroz, was wearing tennis shoes. He directed the Claimant to change his footwear. Either preceding or following that, Mr. Jordan complained about communications the morning of March 18, at the close of the previous night's work, which caused the gang to be late clearing the track after the closure of their working window of time. He said that the Claimant had ignored his repeated requests for information about the progress of the Claimant's on-track machine, which had derailed - according to a written statement by Machine Operator Jimmy Flores - further delaying the gang's clearing the main track. The record indicates that as they discussed the communication issue, the voices of Mr. Jordan and the Claimant rose higher, in company with their anger, to the degree that harsh and vulgar words were used. As the consequence, Mr. Jordan called the two Assistant Roadmasters to come to the work site. After interviewing Mr. Jordan, the Claimant, and other gang members, Mr. Ramirez called an officer who was working in the place Division Engineer Gilliam, who was on vacation, and was directed to take the Claimant out of service pending an investigation.

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 The testimony of the two Assistant Roadmasters consists largely of what they were told. Neither of them were present until almost two hours after the altercation occurred. Mr. Jordan's testimony draws a picture of his reasonable efforts to direct that personal protective equipment be worn on the job by the Claimant, who had disregarded the need for such equipment on other occasions, and his expression of the need for better communications among the gang, spread out along the track for a considerable distance while they were performing their work. He had been subject to criticism because of their failure to clear the track on time the morning of March 18. He felt the Claimant's responses to these issues were insubordinate.

 The Claimant's testimony depicts Foreman Jordan as a bully, exploiting his superior weight and height - 275 pounds, six feet-five versus 200 pounds, five feet-ten - to attempt intimidation and disrespect of those under his supervision. He fiuther draws attention to the fact that although two persons were admittedly engaged in the altercation, only one of them - himself - was taken out of service and charged with rule violations. He testified that he felt threatened by Mr. Jordan and humiliated in the presence of the other workers.

 The outcome of the investigation was the Claimant's receipt of a letter from Mr. Gilliam, (who had also conducted the investigation), dated April 28, 2004, reading as follows, in part:





The Organization promptly appealed the Division Engineer's decision to the Carrier's Labor Relations Department. The Organization argues that the investigation and assessment of discipline were not handled in a fair and impartial manner. It points out that Division Engineer Gilliam issued the charges, conducted the investigation, determined who would be called to testify and what evidence would be presented, and then made the disciplinary decision.

 The Organization further argues that the hearing Officer denied its request for the attendance of witnesses and further denied its representative's objection to the admission of

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 written statements. It also objects to the removal from service of one of the parties to the altercation, the Claimant, while the other party, Foreman Jordan, was not subject to discipline.

 The Carrier rejoins that substantial evidence was developed proving that the Claimant engaged in an altercation with his Foreman on March 18, 2004, including the Claimant's own testimony. It adds that testimony in the record shows that the Division Engineer did not issue the notice of charges, but it was in fact issued by another offcer, over the Division Engineer's name, while he was on vacation. Further, the Carrier argues that an offcer acting in more than one capacity in a hearing is not evidence that the proceedings are prejudiced.

 The Carrier further rejoins that the Hearing Offcer did not ban the presence of any witnesses, but in fact their written statements corroborated the testimony of Foreman Jordan, and their presence would not have introduced any new information. Moreover, the Carrier adds, if the Organization felt these other gang members were key to its defense, it could have had them appear as Organization witnesses, but it failed to do so. The Carrier denied the claim and states that it rejects and denies all other objections, arguments, and claims raised in the appeal.

 The Board has carefully considered the record in this case and the arguments of the Parties. The Organization's procedural arguments will be first addressed.

 The performance of multiple roles by a Carrier officer in a disciplinary proceeding is not, in and of itself, a violation of employee due process rights. Boards have visited this question numerous times. When an officer appears as a witness, and then determines the credibility of his own testimony, or when an offcer determines the disciplinary outcome, and then acts as the appeal offcer from his own determination, disciplinary penalties have been reversed. Here, the Division Engineer did not personally issue the charges, which might suggest prejudgment. True, the charge letter was over his name, but he was not present and had nothing to do with the decision to hold the investigation, nor to remove the Claimant from service. The transcript shows he held a fair and impartial hearing, conducted courteously and with precision and thoroughness.

 The record shows that three days before the investigation was scheduled to begin, the Organization requested in writing that the Carrier call Foreman Jordan, and Gang Members Lawrence Shells and Vince Harris as witnesses. This written request was submitted in evidence as an exhibit by the Claimant's representative. In response, the Conducting Offcer required witness Assistant Roadmaster Ramirez to read into the record the provisions Rule 13 -the Discipline Rule - of the Parties' Collective Bargaining Agreement. Rule 13 - (k), in particular, reads, in pertinent part:

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 The Board finds that there is no provision in Rule 13 which requires the Carrier to have employees present as witnesses when they are requested by the charged employee. (The Carrier, however, may not prevent an employee from acting as a witness, when the charged employee demands his presence, but the Carrier is not obligated to pay the witness for lost time or expenses in such event.)

 The above Rule gives little or no comfort to a charged employee who feels that evidence or testimony vital to his defense lies in the hands of a witness. There's no denying that he is at a disadvantage. The Carrier can require its witnesses' presence, under threat of discipline, while the charged employee has no such compelling force. But the Board cannot rewrite the Rule.

 The Board notices, however, that Foreman Jordan was present, and was cross examined by both the Claimant and his representative. Written statements by Mr. Shells and Mr. Harris were submitted in evidence, and appear to be as favorable toward the Claimant as toward Mr. Jordan. The Board does not believe that the Claimant was substantively prejudiced by their absence from the investigation. The Board further notices that the Claimant made certain admissions in the record which make it unlikely that these absent witnesses could have changed the outcome had they been there.

 Turning to the merits, the Board has discounted the testimony of the Assistant Roadmasters, not because they were not truthful-the Board assumes that they related events as told to them - but because they were not eyewitnesses to the altercation. The written statements of the gang members, the Claimant, and the Foreman are more persuasive, simply because they were composed when the event was fresh on their minds. These statements are here quoted, in edited form, with extraneous matter omitted, spelling corrected, and punctuation added, when required for clarity.

 The Claimant's Statement


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Foreman Jordan's Statement


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 Mr. Lawrence W. Shells's Statement











Mr. Vincent Harris's Statement


Mr. Mark Simpson's Statement




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Mr. Jimmy Flores's Statement










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The picture is clear, despite the discrepancies in these statements (as well as the testimony of the two antagonists in the investigation), that a combination of adverse events and circumstances set the stage for the altercation. The Foreman had been stung by criticism from his superiors because of overstaying the gang's work window the morning of March 18. Two witnesses used the same expression - "Got his ass chewed out" - and that fact may have caused him to be more sensitive than on an ordinary day. The Foreman spotted the Claimant's footwear. He testified that it was not the first time the Claimant had reported without his safety boots on. When the Claimant was directed to change footwear, he either chuckled, or laughed, or smiled. This would convey to the Foreman, already in a foul mood, that the Claimant was making light of his demand that protective equipment be worn

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workmen. The footwear issue might have been better handled in private. The communication
 problem during the overstay that morning came to the forefront of their escalating anger, and then
 they moved on to the issue of the Foreman's authority to supervise. It is abundantly clear from
 the totality of the testimony and written statements that both the Foreman and the Claimant
 completely lost their tempers and both of them raised their voices. The Foreman reportedly
 advanced on the Claimant in a threatening manner, and was dared to "take a swing at me." But
 another statement says that the Claimant "lunged at" the Foreman. Each of them reportedly told
 the other to "get out of my face." Profanity and vulgar expressions were used by the Claimant,
 according to all accounts, including his own testimony. Then, there are the racial overtones
 expressed by the Claimant's choice of words, according to one of the witnesses' written state
 ment, "M F White Boy."

 The Organization objected to the Claimant's removal from service, pending the investigation, while his adversary, Foreman Jordan, was continued in service. While Foreman Jordan acted in a provocative manner, and clearly was himself angry, his inappropriate conduct did not rise to the level of the Claimant's, as shown by the testimony and statements in the record. The Claimant was insubordinate; the Foreman was overbearing. Both were quarrelsome, but the degree of their unbecoming conduct was not the same.

 Nevertheless, although the dg of their participation in the altercation is not the same, the Board is persuaded that both the Foreman and Claimant acted in a quarrelsome manner, and the Organization's complaint that they were not treated evenhandedly is understandable and not without some merit.

 Notwithstanding the disparate handling given these two employees, the Board is not prepared to expunge the discipline in this case. A soft answer by either of them, less assertive, and without aggressive terminology and gestures, could have attenuated the heightened anger of the other.

 The Board notices that the Claimant frankly admitted non-compliance with certain of the charged rules:

He further admitted that he invited the Foreman to hit him and that he engaged in an altercation.. [Transcript pages 83 and 86]. These admissions preclude the Board from any finding that discipline was not warranted.

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 The Board also notices that part of the charge and disciplinary determination was that the Claimant's altercation ultimately caused the gang to lose their window on March 18, 2004. Assistant Roadmaster Hill offered testimony about that part of the charges:









The Board is persuaded that the Claimant's acts were not the proximate cause of the gang's loss of its window of time. Nor was the Claimant essential to the night's work, since Foreman Jordan testified that he planned to leave the Claimant and another employee to work on the track machine which had derailed that morning, while the rest of the gang went about their work. See Mr. Jordan's statement at page 7, above.

 In this Board's Award Nos 282 and 284, two employees engaged in an altercation which, unlike the instant case, involved physical contact. Each of those employees was assessed a 30-day suspension and a three-year review period. The Organization's claims for remission of these disciplinary penalties were denied. A similar penalty in the instant case is appropriate. However, in view of the lack of physical contact, and the fact that, unlike the evenhanded discipline assessed in those other cases, only one of the principals here was taken out of service and subjected to an investigation, the 41-day suspension will be reduced to a 25-day actual suspension.' The threeyear probation will stand.

 The Parties are advised that this decision is based upon the grounds outlined in the preceding paragraph, and the Board's conclusion that the altercation was not the direct cause of the gang's loss of its window of time. The verbal expressions used by the Claimant are not acceptable under any circumstances, and no provocation, regardless of how egregious, provides any excuse for a response with words of that sort. If he was treated unfairly by his Foreman, he

 'Disparate disciplinary penalties have been adjusted by the National Railroad Adjustment Board. See, e.g., Third Division Awards 24483, 25275, and 33607.

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 had other recourse than complete loss of self control and utterance of tasteless obscenities.
 Furthermore, his failure to wear proper protective footwear - not for the first time, according to
 Foreman Jordan - opened the door for the Foreman's criticism

The claim is sustained in accordance with the Opinion. Any compensation due for lost wages shall be paid within sbcty (60) days from the date of this Award.

R B. Wehrli, Employe Member William L. Yeck, Carrier ember

L=~A Z~(,

Date

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