In connection with the objections raised during the hearing, the reasons stated in this appeal and furthermore violations of the Agreement, we hereby request Mr. Portmess, ID# ** ****, be exonerated from these charges against him and all matter relative thereof. We request Mr. Portmess immediately be reinstated as an employee with CSXT and his name will be placed back on any and all seniority rosters and compensated with all lost wages and benefits due to the carrier's action and violations of the provisions of Rules 24 and 25 of the June 1, 1999 CSXT/BMWED collective bargaining agreement, as so stated.
AWARD No. 15 NMB CASE NO. 15 UNION CASE NO. D21856205 COMPANY CASE NO. 12(05-1263) louder or less loud. There then occurred a verbal confrontation between the two men which ended with mutual posturing and name-calling; after which Ruggieri slammed his door and Portmess went back to his own room.
The record does not indicate who was the aggressor in that first phase of the incident but all of the eyewitnesses concur that Ruggieri came storming out of his room, renewed the verbal confrontation and began throwing punches at Portmess. The latter individual struck back and before the two pugilists could be separated by the other employees, Ruggieri was propelled through a sliding glass door and sustained injuries which required an emergency medical response and a trip to the hospital. Hotel management called the Berkeley County, West Virginia Sheriffs Department who investigated and charged Ruggieri with assault based on the eyewitness accounts that he had escalated the verbal argument to a physical confrontation and thrown the first punches. After the statements were gathered, Ruggieri was transported by ambulance to the local hospital to receive medical attention for his wounds.
Following due notice and aformal investigation at whichthe foregoing facts were developed, the Carrier rejected the Claimant's testimony that he was innocent of any wrongdoing. Based on the investigation record, Carrier terminated the employment of Mr. Portmess, finding that he had engaged in "conduct unbecoming an employee of CSX Transportation", and with violations of CSX Transportation Operating Rules-General Regulations GR2 and GR-2A, as well as CSX Transportation Policy Statement on Harassment and CSX Policy On Workplace Violence.
In perfecting the appeal, the Organization asserted a violation of due process because "(t)he carrier did not provide us our requestfor management recordsfor the purpose ofresearching issues related to this investigation in order for us to not only prepare, but also provide Mr. Ruggieri with 2
a fair and impartial hearing. A written response was never received as our letter requested. The proper objection was made on the record but the hearing officer continued to proceed with the hearing over our objection. We have carefully considered that argument but must conclude that there is no fatal due process violation shown on this record. On the threshold issue of due process and "pre-investigation discovery", the language in Rule 24(i) does not require the Carrier to provide summaries of testimony or investigative materials to the Organization prior to the hearing. Consequently, we find no evidence of a fatal due process violation on this record.
On the issue of Claimant's role in this incident of physical violence, the evidence plainly shows that Ruggieri threw the first punches, as shown in the following statement from an eyewitness:
Indeed, Carrier relied upon that evidence as well as the fact that Ruggieri was cited by the police for assault when it terminated Ruggieri's employment. In that regard, Carrier also relied on the written report of the Berkeley Count, West Virginia Sheriffs Deputy, who concluded that Claimant Portmess was not the assailant but rather was the victim of a physical assault, as follows:
We are not persuaded that Claimant Portmess was completely without fault in this incident because the record shows that he participated fully in the verbal taunting and name-calling which apparently provoked Ruggieri's intemperate escalation to physical violence. Moreover, in response to Rugieri's first punch, Claimant Portmess apparently went beyond self-defense to inflict injuries on his older and smaller protagonist which required EMT response and hospital treatment. Claimant's assertions of absolute innocence are not persuasive and some measure of discipline was appropriate for his role in the provocative prelude to the fist fight and for his over-zealous response when struck by Ruggieri. Based on the record evidence, however, it was unreasonable for Carrier to impose the discharge penalty in this case. Based on all of the foregoing, the discharge of Claimant Portmess is reduced to suspension without pay for time served.
