NATIONAL MEDIATION BOARD SPECIAL BOARD OF ADJUSTMENT 1048


Urotherhood of Maintenance of Way Employcs )

Di\·i•don-11\'1' Rail Confcn't1cc.· )

)

And )

)

Norfolk Southcm Railway Company )

(Funner Norfolk & W1.."Stcm Railwar Company) )


Case Nn. 219


Awa.rd No. 219


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Richard K. Hanft, Chairman anJ Neutrnl Member

D. M. Pai:1carel1a, l mploycc Member

D. J •• Kerby, Carrier Member


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"Claim of th,• Syst,·m Commfrt<.'<.' of the Brotherhood that:

I. The Carrier's cJisciplim.• (tfom1issaQ of Mr. J. I>uke, i11:.uctl by letter datc..-d January 5, 2016, in connection with his allegecJ conduct unbecoming an cmployc, in that he physically attacked a co-worker, R. /\. E,Rglc.-sron, near Be11)'\'illc, Virginia on Tue:.da)', September 8, 2015, resulting in an injury to Mr. Hggl<.'Ston, wa:. arbitrary, capricious. unreasonable and in ,·iolation of th'-' Agreement (Carrier· File MW-ROAN-15-55-1.M-907 NWR).


2. As a consequence of the ,•iolarion refcrrec.1 to in Part 1 above, Claimant.I, Duke

:.hall be r<.."StorcJ ro scn•icc of the Carrier ancJ paid for all rime lost with

!l<.'niority, ,>acation and all rights unimpaired."


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Special Board of Acljui;nncnt Boanl I 048, upon the whole rc..-conl and all of the evidence. finds and holdi. that I mployc..-c and Carrier are cmploy,•e and carrier within the meaning of the Railway l .abnr Act, a11 amended; anJ. that the Hoard has jurisdiction over the disput<.· herein; and, that the parties tu th«.· cli:.put«.• wet«.' 1,,ti.vcn Jue notice of the hearing thereon ancJ die.I parrici[>ate therein.


'lbi:. Award is ha:.cd on the facts ancJ circumstances of this parricularcasc and 11h1ll1

nor :.crvc as n prccec.k'llt in an)' ntln.'t' ca11c:..


,\ ftcr thoroughly rcvic.-wing and considering rhc n.-cord and the p11rtie:.' prc:.cntarions, the Hoard fine.ls that the claim should be Jispo:.cd of as follow!!:



Spcci.-il Board of ,\djustment No. 1048

Award No. 219


There is no dispute that Claimant was i,wolved in a verbal and physical altetc.1tion with another cmplo)•cc on September H, 2015.


Claimant, at the time of the altercation was assignee.I and working as a fo ntan nnd the oth1..T particip:mt in the altercation wm, m1signed and working as a Ballast Regulator Operator oo a Smoothing ( iang out of Rom1oke, Virginin. A phrsical altercation definitely occurred.


Both cmployc.'t.'s were taken out of 11en•ice and instructed to prc.-sent themscl\•cs at separate in\'cstig:ttions 011 November 10, 2015. The Ballast Ref.,>Ulator Operator prt.'llentcd himself for hi. itwcstig:ttion, Claimant die.I not.


l!pun rc:cdving the evidence 1utd list<..·nin to the.· unrcbuttc.-<l tcstimon}' of the Claimant and witnesses at the Hallast Rc..1,,rt1lator ( )pc.Tator's invesri arion, Carrier opened the inves arion for Claimant, llisinisseJ the charAes and issued new char1,.tes basc.."ll on the.· ncwJr-acquirec.l c,·idcncc.· presented in the lbllast Rc.,.,,ulatur ( )pcrator's lnvcstiw1tion.


A notice summonin Claimant to a new Investigation on the new charges \Vl\5 sent to Claimant's address of rc.•cunl. ·nu: new chaq..>rs wc.·rc pn·sc.·nted in an fostructinn tu appear staring the purpose of the invest ation as such:


"To dctcm,ine your rcsJlOnsibiliry. if any, in connection with conduct uohccoming an t:mploycc in that rem physicall)• attacked co-worker

R. I p,glcstc ,n nc.-ar Berryville, ( iA on Tucsda)', Sc.1-,tc..mbcr 8, 2015 resulting in an injury to Mr. Hgglc!lt<>n."


'J1lat hwl'11tigntion cmwencd on December 21. 2015 aru.l again, Claimant did not appear. '111c ln\'cstigation 1uocecded i11 ,1/J ·,wti,1 and Claimant, it is no surprise, wa11 found b•uiltr of the chargL-s and summarily dismissed.


The Hoard hai. no recourse but to <lcny the clnim. Claimant, by his absence nt the itwcstif...,ntion, offered nothinA on the record to rebut the partisan tcstinumy put forth br his co­ combatant. That t<:iitimony was that the altc.•rcation wns compktdy unpro\'okc.·d. Claimant, by hiii failure to appear,1,.tavc his rcprc11cntati,·cs \'irtunlly nothin to work with ro rebut thar a11scrtion. 'I 'he evidence on this rccorJ for our rc..'Vicw is unrcbum.-<l and puts the bl:tmc for thi. inciJcm squarely on the Claimant. Mm·cuver, Jismis!ffll for physiallr battc..'l'in a fellow ,vorkcr to the extent he i11 umible tu ,vork is neither nrbitnuy nor cxce11sivc. l-lencc. the Claim must be Jcnic.-<l.


Special Board of Adjustnu.-nt No. 1048

Award No. 219


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The CL'lim i:1 dcnk·d.

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I). l\f. P11scarclla. ltmpluycc l\fl'mlx.•r


Dnrc.-J at Chicago, Illinois .lanunry J 6, 20lK

D. J.. Kerby, Carner J\fombcr