BROTHERHOOD OF LOCOMOTIVE ENGINEERS )
 Case No. 349 and
 }ward No. -?9
 ATIO\ AL RAILRO AD P:%.SSScr"\. GBR CORPORATION (A.~'VLTRAK i 1





STATUVIENT OF CLAIM:







FLN'DLNGS:

 Special Board of Adjustment No. 9=S. upon the whole record and all the evidence, girds and holds that Employee and Carne- are a^=ioyee and caster within the meaning of the Railway Labor Act. as amended: and. that the Boar.: has jurisdiction over, the dispute herein: and. that the parses to the dispute wen riven due notice of :he hearing thereon and did participate therein.

 On January ?6. ?001, Claimant was directed to report for an investigation on: ebruarr 1. ? 001. The notice. as r_vised Janua.-v '_9. 2~iVj 1. charged Claimant whiz violating A.mtrk Standards of Excellence, Safety. Discnminatrcn, Attending to Duties and Professional and Personal Conduct, in that it was alleged that he became involved in an altercation with fellow empiovre Kenneth Galusha on January. -~, -001. resulting in ~.ir. Gaiusna sustaining a personal
 No. 928



The Organi=on has raised sev-.gal procedural arguments. ui a have conside:ed th_-m carefully and coxztiluded that they do not protide a: basis for overturning the discipline. Accordingly, we will resolve this Miller or. the merits.

 A number of facts are not in dispute. On January '_'3. 2001, Claimant ups assigned to operate Train No. 4 in the second -ng:n-: posi:zon. Claimant was not quad on the tet,itory. Mr. Galusha was assigned in the firs t zn--. position. Mfr. Galusha was opeiati4 the train. At appro:nately Miles 609. Nlr. GB.iusim asked C:ainant to oprxare, the Veit and Claimant teed. :4n incident occurmed between C:aimant and Mfr. Galusha. At 1 25 am.. near Gofs.. Caffornia. Mr. Galusha radioed the conductor asking him to have the police meet the train at the Needles. California stop. At Needles. the poiic- attempted to dissuade Mr. Galusha from pressing charges but Mr. Gaiusha insisted on a citizen's arrest of. Claimant for allegedly striking Mr. Galusha in the ribs. Claimant then insisted on a citizen's arrest of :Mr. Galusha for allegedly threatening him. Both employees were armsted. processed and released. Meanwhile. Train No. 4 was delayed at Needles until Train :No. : anived so that one of the engmeera from Train No. 3 could operate Train No. 4. Claimant -and 1l.-. GalUSha were informed by the Conductor that they had been removed from senric-. Claimant .-ode Train No. 3 back to Los Angeles. Mr. Galusha rode Train No. 4 to Kingman-Arizona,. when he was trcamd at the hospital and releas~ed_

 Claimant and Mr. Galusha cave conxlicturig accounts of the incident. Claimant maintained that 1VIr. Galusha was smoking constsndy in violation of Carrier policy. that Mr. Galusha refused Claimant's requests that he take a break from smoking. that the cab was filled with tobacco smoke and that Claimant became ill. Claimant told Mr. Galusha that he was feeling

 ill and would not operate the train. Accortfn$ to Claimant, Vfr. Galusha cursed him and' `- - "
 threatened "to kick your fucking ass." to wizica Claimant responded. "You try it you fucking
 asshole." after which Mr. Galusha radioed the Conductor to call the police.

 Mr. Galusha maintained that he asked Claimant to relieve him. Claimant rehtsed. Mr. Galusha said. "Okay. That figures.' niter which. Claimant approached Mr. Galusha cursing and telling Mr. Galusha to fight. Mr. Galusha maintained that he told Claimant he did not want to fight as he had a Train to operate and Claimant punched him in the ribs on his left side. causing him considerable pain. Ivlr. Galusha then :adioed the Conductor to call the police and concentrated on bringing the train safely into Needles.

 The conficting e,,-idenc- was not :united to the statements and testimony of the two protagonists. The Conductor testified ;hat se coulC not se-any mark on Mr. Galusha's body. The speed tape reflected no unusual handling of :he train. One of the two Deputy Sheriffs who responded to Needles testified that he ocs-n:ec a :Azised redness on 1~Ir. Galusha's body which he

                                                  Award 3-11)


    termed a welt, but was unable to say that the mw'k was consistent with a blow.


    On the other hand. the medical records from the hospital in Kitigrn= indicamithat Mr. Galusha was treated for bruised ribs. Furthermore. as the Hearing Officer txbsetved in his, decision. Mr. Galusha immediately radioed the Conductor to summon poll= anti at :~-eedes he was. insistent an prosing a didzen's arrest for" barter of Claimant even though the hea°gtnaittg offtexrs elained to him that it was likeiv Claimant would also seek i cidzezi's wrest n2airst him and the matter could endanger his job. It is unlikely that 14r. Galusha would have behav-,.d as he did had he not been s=ucL


        This case thus presents a classic situatioc where an appe!late body should defer to the

    findings of fact made on the pmpc_-ty. :be aee-n`ns orncer observed the Aitnesses and was in the

    bast position to resolve the conflicts i:. the e1-id.-_a..ce. The hearing officer's reasoning concerxine

    the likelihood that fir. Galusha would uri'e : eaned as he did had he not been su'uak is 106031

    and persuasive. Accordingly. we conclude tea: Carrier proved the charges against Claimant :n'

    substantial evidence.


        We turn to the penair.- imposed. %Ve note that Claimant was initially hired b1' the San:a

    Fe Railroad on December '19. 19'1. as .a coacc:esnez!fuel labor-r. established Fireman

    seniority on July ^_..5. 1974. transferred his ezt-1ne sen'ice seniority as a Fireman to Carrier with

    Carrier's takeover of senice in Zone lr in :ne A'astem Region on November 5. 1986. and

    established his Passenq= E:s_me·-r's scniorz' :t :th Carter on mar' ?9. 199'2. Prior to the

    incident in question. Claimants reco"I~ was wte:T.plar~'.


    Nevertheless. striking a fellow engineer while he is operating a train at a highmm of speed is an extremely serious offense. it ride: most circumstances Claimant's length of service

    and outstanding prior record standing alone would not mitigate against the seriousness of the.

    oriense. This case. however, is anpicai. i he Board is troubled by the disparate treatment


_ __ .~ '~ Clai.ant and Mr. Gaiusha~ _ _ _ _` _ _ _ _ _ - _ _ _ _ _ _ __ _ _ _. .

        In a separate investigation. the sameearing Officer exonerate-d wtr. Galusha of all

    eharses against him. He found that the: a was insufficient evidence and a lack of corroborative

    testimony to support the charges. He rurtzer found that it was reasonable to believe that Mr.

    Galusha's injury was caused by a blow mom Claimant and that Mr. Galusha could not be held

    accountable for circumstances that we7-e be·: cnc- his control and that testimony relative to

    allegations of discriminatory remark :vas inconsistentr. vague and ambiguous.


    It appears that the Hearing Ot=icer believed that he was required to credit Claimant's

    version of the events in its entirety or :edit 1vir. Galusha's version in its entirety. We see no

    evidence that the Hearing Officer considered :he possibilirv that Cairnant struck Mr. Gah:sha

    otter being provoked by Mr. Galusha 1 nai is. it cer-,ainly is reasonable that Claimant's

    testunonv conces=g fir. Galusha's ~,:.-siT -and :hrears was accurate but Claimant's denial of

    ss.-11.ing I~Ir. Galusha was rise. Indeed. e: en one ~,-diu Mr. Galush a's testimony, one has ;o

    una that 2yir. Galusha behaved in at lee: a =idly provocative manner when he coamenied. "It

                                              SBA N,-,. 928

                                              Award No. 349


figures," in response to Claimant's red to operate the train. Moreover, the same reasoning employed by the Hearing Officer to conclude that Claimant stuck Mr. Gaausha, also leads to the conclusion that Mr. Gafusha cursed and threatened Claiac~ That is, just as it is very unlikely that &h. Galusha would have asked for the police to be called and would have been so iusistcnt that Claimant be arrested had he not be-n strurf, we find no evidence that would make it likely that Clai.-nant would have struok Mfr. Calms withDut any significarst provocation.

      W a are unable to uphold Claimant's dismissal in light of.the ab.e of any discipline

assessed azainst VIr. Galusha. W'= find -his case strikingly similar to N&kE, First Division
 Award No. ?;496. In that case. at engincr: and a bralceman exchanged words twice during the
 ;lay. Later. the enginew con5tontzd, zhtbraak,:=an while he wa$ coupling air hem and struck- the
 brake.-nzn. Claiman: was.dismisse xu. o service but the brakeman was not disciplined. The
 Board overt= ed Claimant's disnissa;. : round sufficient ex*idence to implicate. the beak-man
 as- being partially .responsible for :.he i-Z:..:ez; and held that the claimant.could not be.sinzied out
 as the soie cause of :he ensuinsz altercaucn. Noting that the clot had more than eight ears
 of sem-ice. during which time he had be a assessed a total of only 90 demerits. that tie braleman
 was not iniumd seriously. and that the ci_ima.: had not been found guilry of any -, prior assaults.
 the Board reduced the claimant's dismiss;: to a 60 day suspension and ordered the earner to
 cotnpcnsate claimant for time out of sen*ice :r. =xezss of 60 days.

 Comparing the instant case w-'.-. ~ w=rd No. ?3496. we find that Claimant's tenure. is much longer and his record far superior. However? Claimant's offenses trikin~ a Fellow engineer while he was operating a passenger. traLi w: a n-igh ;ate of speed. is much more se-ious. - Nevertheless. as in Award No. '.1496. we can find no reasonable basis for Claimant's dismissal in Ught of the absence of any discipline :sscssed :vIr. Gaiusha. Carrier's determination that Claimant was the sole cause of the incident is not supported by substantial evidence. Therefore: we shall order that Claimant's dismiss;: be :educed to a lengthy suspension equal to time held out of service. Claimant is to be reins`,~:ec :o se.-vice with seniority unimpaired but without compensation for time held out of se-rice. Claimeat's reinstatement shall be on a lest chance basis. .any future violation of Carier's ruies o: Standards of Excellence. upon being established in a proper investigation. shall be cause Sor C:air-ant's permanent dismissal.

                        ~u-~.RD


    Claim sustaLned in 3Ccon.ance ':~ :::. d'2e : j ndin!zs.

SBA No 925
 Award No. 349

 The Board, having determined that an award favorable to Claimant be made, hereby orders the Carrier to make the award eve within thirty (30) days following the date two members of the Board affix their signatures ht

 Mardn H. Msiin. Chairman

 L. C. Hriczah,
 Carrier Member

 Dated at Chicago. Illinois. May -~. ?00'_'.

 9.rplov- member