UNION CASE No.D21303806 COMPANY CASE No.12 (06-0459) that the two began arguing about the work they engaged in during the workday, with the Claimant alleging that Mr. Smith "did not allow" the Claimant to "safely operate" his equipment. Whit; on the bus the verbal altercation became "very heated", including the use of profanities, and the duo continued to argue after departing the company provided bus. Shortly after departing the vehicle, the Claimant struck Mr. Smith across the face, causing severe personal injury to Mr. Smith. (Of note, at the time of this writing, Mr. Smith is still unable to work due specifically to the injury inflicted by the Claimant). Subsequent to the physical assault, the Manager of the Best Western came out to the parking lot to stop the altercation.

As a result of the incident, in a letter dated July 8, 2005, the Claimant was instructed to attend a July 18, 2005 formal investigation regarding the following charges:

The purpose of this formal investigation is to ascertain the facts and determine your

responsibility, if any, in connection with a verbal altercation that occurred on. the 5GCT

system CAT team on June 20, 2005, while the team [was] (sic) trammingon the James River

Subdivision. At approximately 1620 hours at the Best Western Motel at Covington, VA you

allegedly physically assaulted and caused injury to employee J. P. Smith. Accordingly, you

are charged with conduct unbecoming an employee in violation with, but not limited to CSX

Operating Rule GR-2.

Following one postponement at the Organization's request the investigation was convened, and completed, on February 1, 2006, with the Claimant and his BMW1r representatives in attendance. Thereafter, in a letter dated February 17, Carrier informed the Claimant that he had been found guilty as charged and dismissed from the service of CSXT, in all capacities.

The Organization's Vice Chairman, L. Buckley appealed the discipline in a letter dated February 24, 2006. Specifically, the Vice Chairman alleged that Carrier failed to prove its case because the Claimant was "unduly provoked" by fellow employee Smith, and therefore, the charges and discipline were not justified. In a August 9, 2006 declination of the claim, Carrier's Director

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Labor Relations J. Wilson confirmed the parties' conference, held July 11 and 12, 2006, and denied
the Organization's request for leniency, stating unequivocally that: "leniency would hot be
extended". Mr. Wilson went onto assert that the Claimant's due process rights (as provided under
Rule 25 - Discipline) were "fully protected". Mr. Wilson went on to note that: "Carrier satisfied
its burden of proof when Claimant Castle admitted his guilt during his testimony". Mr. Wilson
further argued: "It was brought out in the investigation that the other employee involved in the
altercation, Mr. J. Smith, was injured during the physical attack by Mr. Castle. Manager Program
Construction S. Piccirillo testified that Mr. Smith received medical care as a result of the incident,
and to date, had riot yet returned to work .... " . Finally, Mr. Wilson contended that the Carrier
satisfied its burden of proof due to the Claimant's admission of guilt during his testimony at the
investigation.

Despite continued attempts to resolve the dispute, the Parties were unable to do so. Therefore, the matter has been placed before this Board for final, binding adjudication.

Following careful review of the record, the Board concludes that all necessary due process was afforded to Mr. Castle. Specifically, the record demonstrates that the Claimant was given timely notice of the charge(s), afforded a full and fair hearing, ample time to prepare a defense, and the opportunity to produce all of the witnesses and evidence.

Turning to the merits of the issue, it is not disputed that following the June 20, 2005 workday, while on their way to Carrier provided lodging, the Claimant and Machine Operator Smith engaged in a verbal altercation premised upon the Claimant's assertion that Smith was not allowing him to "work safely". The -verbal exchange continued throughout the ride to the Best Western in Covington, with both Mr. Smith and the Claimant "holding their own". However, upon arriving at

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the Best Western, the Claimant upped the stakes by striking his co-worker with such force that Mr. Smith has to date, been unable to return to service.

In that connection, the Claimant admitted his guilt during the following interchange:

Q. It is your testimony that you did strike Mr. Smith?

A. Yes sir.

Q. Mr. Castle, are you familiar with the operating rules?

A. Yes sir.

Q. Are you familiar with Operating Rule GR-2?

A. Yes, sir.

Q. Did you violate Operating Rule GR-2?

A. Yes, I did.

Q. Mr. Castle, you are charged with conduct unbecoming an employee. Was your

behavior on June 20' consistent with conduct unbecoming an employee?

A. Yes, it was.

Q. Mr. Castle, were Mr . Smith's actions on June 20`s sufficient to constitute striking

that employee?

A. No.

Clearly, Claimant's guilt was established by his admissions, supra,- and there is no room for
reasonable argument that Carrier has not met its' burden of proof. It is noted that the Claimant
requested "forgiveness" from the Carrier by apologizing for his actions on June 20"'. However, this
act of contrition does not relieve the Claimant from taking responsibility for violating operating rules
of conduct, nor does it relieve him from taking full responsibility for the resultant injury to Mr.
Smith. Given the severity of this proven offense, including the Claimant's admission of guilt, there
is no basis for disturbing the disciplinary action taken by the Carrier and the claim must be denied.

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AWARD

Claim denied.

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