At some point, Claimant Portmess knocked on the door to Ruggieri's room and spoke to him about the music he was playing on the radio. It is not entirely clear from the record whether Portmess asked Ruggieri to play the music louder so they all could hear or to turn down the sound. In any event, a verbal confrontation erupted between the two men, including mutual posturing and name-calling. This early phase of the confrontation ended when Rugierri slammed his door and Portmess returned to join the other individuals near the swimming pool.
The record does not indicate who was the aggressor in that first phase of the incident, but all of the eyewitnesses concur that Rugierri came out of his room a few minutes later in a state of obvious agitation and confronted Portmess. It also is plainly established in the record that these two individuals again exchanged mutual verbal insults and taunts. Although he denies that he was the aggressor, every eye-witness to the incident testified that Ruggieri escalated the situation to physical violence by throwing the first punch, hitting Portmess in the face. Portmess, a younger and apparently larger man, responded with his own barrage ofpunches and propelled Ruggieri backwards through a sliding glass door. The other individuals present intervened to stop the fight and the hotel management called the Berkeley County, West Virginia Sheriff's Department who responded and investigated the incident.
Portmess apparently suffered no serious injury but Claimant Ruggieri sustained injuries which required EMT treatment at the scene and an ambulance ride to a nearby hospital. Based on all of the eye-witness reports, however, the Berkeley County Sheriff Deputy concluded that Claimant Rugieiri had escalated a verbal argument to a physical confrontation and thrown the first punches. After the statements were gathered, Claimant Ruggieri was taken by ambulance to the local hospital to receive medical attention for his wounds after which he was charged with misdemeanor assault. 2
Following due notice and a formal investigation at which the 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. Ruggieri on grounds that he had engaged in "conduct unbecoming an employee of CSX Transportation", and 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 at the outset a violation of due process because "[tJhe carrier did not provide us our request, for management records for the purpose of researching issues related to this investigation in order for us to not only prepare, but also provide Mr. Ruggieri with 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". In addition, the Organization urged that even if the Claimant was culpable, his guilt should be mitigated by a his many years of service to warrant a more lenient penalty than outright termination.
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 who was the aggressor, Carrier adduced persuasive evidence, including the following statements from an apparently disinterested eye-witness:
In rejecting the Claimant's assertions of innocence, the Carrier also obviously relied on the report of the Berkeley Count, West Virginia Sheriffs who made the on-site investigation:
This was probative evidence of record which the Carrier obviously credited over the denials of the Claimant that he was the aggressor and the escalator of the verbal argument to a physical assault. It is well-settled that in the appellate-style arbitration which characterizes RLA §3 proceedings, a board of arbitration faced with a cold transcript does not second-guess credibility conflict determinations made on the property at the trial level.
We have carefully considered each of the arguments ofthe Organization but we must conclude that there is no fatal due process violation shown on this record, that the Carrier met its burden of proving the charges against the Claimant and that discharge of the aggressor in a physical altercation