(Brotherhood of Maintenance of Way Employes
,PAR
ZIES TO DISPUTF.:
(The Burlington Northern Santa Fe Railroad
aTATEMENT OF CLAIM
:
1. The Carrier violated the Agreement when on August 26, 1998, the Carrier
Assessed a Level S, 45-day suspension with 1-year probation to R.J.
Delgado, for allegedly violation of Rule S-1.2.9 of the Safety Rules and
General Responsibilities for all Employees, and Rule 1.7 of the
Maintenance of Way Operating Rules, effective August 1, 1996, in
connection with his alleged involvement in an altercation at or near
Spruce, Colorado, on July 16, 1998.
2. As a consequence of the Carrier's violation referred to above, Claimant
shall be reinstated to his former position with seniority restored, he shall
be paid for ail wages lost and discipline shall be removed from his
record.
FINDINGS
Upon the whole record and all the evidence, the Board finds that the parties herein are
carrier and employee within the meaning of the Railway Labor Act, as amended. Further, the
Board Is duly constituted by Agreement, has jurisdiction of the Parties and of the subject
matter, and the Parties to this dispute were given due notice of the hearing thereon.
As happens from time to time, horseplay, joking, verbal jousting escalated to an
altercation with Claimant suffering an injury requiring 11 stitches when he was struck in the
face by the safety hat wielded by his antagonist,
For good reason, the Carrier takes a very dim view of such conduct, and In pursuit of
its obligation to provide a safe work place, does investigate such happenings immediately,
imposing corrective measures where warranted.
Claimant testified at the Investigation as follows:
"A. Just-we'd been sitting in the van and, you know, just ...to lead up to it,
Jesus seemed to like to, always like (inaudible) the word harass, but
i~'L,t3 Na
53~7~
Page 2 Award No,
~ oD
Case No. 108
that's probably the only word I can use, you know. We were sitting in
the van and he was continuing messing with me. But, 1 was trying to
crouch down to ignore him and he was hitting me on the back of the .
head with his pack set antenna. I told him to stop, and he thought it was
funny. He was laughing. I had this other guy, 1 heard him tell, he said
that why, the reason he bid on this gang was to come mess with
me.
And, I repeatedly told him
to
stop. And, I mean, he always doing this.
Normally, you know, I ignore
it,
you know, blow it all off all the time, but
between what he told that guy and the way he was laughing and stuff like
that, I guess, I mean, I did pour pop on him, but it was, you know, more
of a..,l had no idea he would have reacted the way he did. And, as far as,
I mean, he's saying he hit upward, but that's not right. He did it with a
downward motion, because when my hard had came down, that's what
cut my, that's where the, my glasses are, out my nose. So, there was
some Intent there as far as the way he hit me. And, afterwards he
threatened to kick my ass and he even spit on my faco. And, I still blew
it oft. i mean I've blown off the whole thing, but it was the fact that I was
bleeding you know, and I had to go to the doctor, otherwise, I wouldn't
have said nothing (inaudible) blow it off again. I mean, what i did was
wrong, I suppose, you know. But, I guessed that it was more a matter
of ..nobody could have put up with as much as I did, you know. That's
just flat out saying, you know, and that's what brought Mr. Winston over
here,"
There is no question as to Claimant's culpability for the charges assessed. As happens
on occasion, the butt of the joke reacts in a manner that enrages the perpetrator who, In turn,
reacts In a manner totally unexpected, in this Instance, violently.
Claimant's recourse was to move away from his antagonist and report the incident to
whoever is in charge, but taking action on his own can have consequences affecting his
livelihood.
This Board finds the Carrier's handling of this matter violated no schedule rules nor
agreement, nor was the disciplino unduly harsh In view of what had been developed.
AWARD
Claim denied.
PL
6 5150
Award No. t°O
Case No. 100
Page 3
This Board, after consideration of the dispute identified above, hereby orders that an
award favorable to the C)aimant(s) not be made.
Ro
z&'rgm.k,
bert L. Hicks, Chairman A Neutral Member
Rick B. Wehrli, Labor Member
Thomas M. Rohling, Carrier Mer
Dated:
mG,
red-.
-It )