1W2, r-' 3 1IVOLUNTARY LABOR ARBITRATION DEC 2 2 1988

vuNATIONAL BUSINESS AGENT

CENTRAL REGION

IN THE MATTER OF THE ARBITRATION BETWEENiii GRIEVANCE OF :ii

UNITED STATES POSTAL SERVICE ii EmergencyMAYWOOD, ILLINOIS (WESTCHESTER BRANCH) ii Suspension and60153-9998 i Discharge of

iiand ii RICHARD THOMPSONiiNATIONAL ASSOCIATION OF LETTER CARRIERS i (Just cause ;BRANCH NO . 11 allegation ofCHICAGO, ILLINOIS 60606 conduct

unbecoming aPostal ServiceEmployee)

CASE NOS . C4N-4A-D 13215 R0C4N-4A-D 13220 I

ARB . NO. 8792OPINION & AWARD

Subiect :Emergency suspension and removal for conduct unbecoming aPostal Employee - alleged attempted assault on fellowemployee at the work site - credibility - issues of who wasinitial aggressor and provocation - consideration of prioremergency suspension over one year old, converted tofourteen day suspension within one year of this incident .

Submission Agreement :

Richard Thompson, Grievant

Was the emergency suspension and subsequent removal of theGrievant issued in accordance with the just causeprovisions of Article 16 of the 1984 National Agreement andthe incorporated provisions of Article 19?

Contract and Handbook and Manual Provisions :

Articles 3, 16 (especially Section 10) and 19 of the 1984National Agreement, Jt . Ex . 1 ;Part 661 .53 of the Employee and Labor Relations Manual(ELM) (unacceptable conduct) ;

Part 666 . 1 and 666 .2 of the ELM (discharge of duties andbehavior and personal habits) ;Part 223 of the Administrative Support Manual (Assaults) .

APPEARANCES

On Behalf of the Service :

Garry Herbord Labor RelationsRepresentative

Irving Nelson (and rebuttal)

Patrick O'Keefe

Branch Manager(Westchester Branch)

Clerk ( Maywood)

On Behalf of the NALC :

Warren E . Fredrich Regional AdministrativeAssistant

Richard E . Thompson

James J . Smith

Ronald Mahone

Ethel Buffkin

Charlene Grimes

Grievant

Chief Steward (Maywood)

Letter Carrier

Supervisor ofAdministration

Witness

ELLIOTT H . GOLDSTEIN29 South LaSalle Street

Chicago, Illinois 60603(312) 444 - 9699

I

I . INTRODUCTION

The hearing in this case was held on Friday, September 12,

1986 at the MSC North Suburban Postal facility located at 8999

West Palmer, River Grove, Illinois before the undersigned Arbi-

trator who was duly appointed by the parties to render a final

and binding decision in this matter . At the hearing the parties

were afforded full opportunity to present such evidence and

argument as desired , including an examination and cross -examina-

tion of all witnesses . No formal transcript of the hearing was

made . Each party filed a post-hearing brief, which were received

on September 22, 1986, whereupon the hearing was declared closed .

Both parties stipulated at the hearing as to this Arbitrator's

jurisdiction and authority to issue a final and binding decision

in this matter .

II . STATEMENT OF THE GRIEVANCE

VIOLATION : Article 16

FACTS : Emergency suspension for physically attackingRonald Mahone .

UNION CONTENTIONS : At Step One hearing, Ronald Mahonesaid Richard Thompson never struct (sic) him and didnot attack him .

CORRECTIVE ACTION REQUESTED : That Richard Thompson bereturned to work and all lost wages be paid to him .(Joint Exhibit 2)

VIOLATION : Article 16

FACTS: Charged with attacking letter carrier RonaldMahone . To be removed from the Service .

UNION CONTENTIONS : Ronald Mahone said Richard Thompsonnever did attack him .

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CORRECTIVE ACTION REQUESTED : That Richard Thompson notbe removed from the Service . That all lost wages bereturned . (Joint Exhibit 3)

III . FACTUAL BACKGROUND

Richard E . Thompson , a full-time letter carrier at the

Maywood, Illinois Post Office ( Westchester Branch ) was issued a

Notice of Emergency Suspension dated December 28, 1985 and

subsequently issued a Notice of Removal dated January 14, 1986 .

The Emergency Suspension ( Jt . Ex . 7) was for physically

attacking another full time regular carrier , Ronald Mahone . The

removal notice ( Jt . Ex. 8) was for conduct unbecoming a Postal

employee . The removal notice states , in pertinent part, as

follows :

You are hereby notified that you will be removed fromthe Post Service thirty days from receipt of thisletter . The reasons for this action are : CONDUCTUNBECOMING A POSTAL EMPLOYEE .

On Friday , December 27, 1985, at approximate-ly 6 :00 A .M ., you called in stating you wouldnot be in to work due to personal problems .After talking to you further , you stated youwould make an attempt to report for duty . Atapproximately , 9 :00 A.M . you reported andafter observing your condition I suggestedthat you go back home , as you did not appearto be fit for duty . Upon exiting my officeyou attempted to physically assault Full TimeRegular Carrier Ronald Mahone and had to berestrained by myself and other employees .Your actions disrupted the work area and wereunbecoming a Postal Employee . You aretherefore , charged with Conduct Unbecoming aPostal Employee .

You have the right to file a grievance under theGrievance / Arbitration procedures set forth in Article15 of the National Agreement within fourteen ( 14) daysof your receipt of this notice .

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The evidence is undisputed that there was physical contact

between Grievant and Letter Carrier Mahone on Friday, December

27, 1985 . Beyond that narrow zone of agreement, virtually

other pertinent facts are in dispute between the parties .

all

It is the testimony of Grievant's immediate supervisor,

then-supervisor of Delivery and Collection Patrick O'Keefe, that

he was Grievant's supervisor for at least one year prior to the

incident which triggered the removal . O'Keefe further testified

that he had never had any problem with Grievant . O'Keefe also

acknowledged that Grievant had, on Friday, December 27, 1985, the

morning in question, telephoned O'Keefe and said he would be

unable to report for work that day . O'Keefe informed Grievant

that he was required to report for work that day, O'Keefe

indicated . At approximately 8 :40 A .M., Grievant appeared at

work . He told O'Keefe at this time that he had the night before

been thrown out of his residence ; thrown in jail ; his car had

been vandalized ; and that certain personal items, including a

television and a stereo and other personal effects had

disappeared . According to O'Keefe, Grievant further informed him

that Grievant believed a fellow carrier, Ronald Mahone, was at

least partly responsible for his troubles . O'Keefe also

testified he smelled alcohol on Grievent's breath. Grievant

generally agrees with O'Keefe's testimony as to these preliminary

matters .

At this point, the evidence presented by Union and Manage-

ment witnesses begins to diverge . O'Keefe testified that, while

the Grievant was in the superintendent's office, fellow carrier

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and Grievant ' s personal friend Ronald Mahone attempted to talk to

the Grievant . O'Keefe further asserted that the Grievant

suddenly exited the office and rapidly advanced Ronald Mahone .

It is the explicit testimony of O'Keefe that he ran after

Grievant , placed Grievant in a bear hug , and attempted to hold

him away from Mahone . At this point , according to O'Keefe, he

shouted an order to Mahone to leave the building and get out of

Grievant ' s way. Because of the momentum of O'Keefe and Grievant,

both fell forward into Mahone, who had not moved at all .

Physical contact resulted .

O'Keefe asserts that Grievant attempted to kick or strike

Mahone . It is the testimony of all the Management witnesses

presented that several employees , as well as O'Keefe , were needed

to separate the Grievant from Mahone . There was shouting between

the two men at the time . Additionally, the area where the

altercation occurred was within hearing and sight-line of the

public areas of the Postal facility , where customers were then

currently present, the record evidence shows .

Both O ' Keefe and Employer witness Mahone testified that

Mahone required immediate medical attention . His injuries were

diagnosed as a contusion to the right forefinger and another

bruise to his back or lumbar area . The injuries caused Mahone to

leave work and contact a physician in Melrose Park, Illinois,

according to the testimony of both O'Keefe and Mahone .

On December 30, 1985 the Postal Inspection Service received

a report from the Post Master at Maywood that an altercation had

taken place at the Westchester , Illinois Postal facility between

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two regular carriers on December 27 . On December 31st, the

Postal service began its investigation , which resulted in the

investigative memorandum (it . Ex . 9 ) which was admitted into

evidence .

In sum and substance , the evidence adduced by Management at

the hearing closely tracks this investigative memorandum . In

pertinent part, the investigative memo states as follows :

2 . On December 31, 1985, Patrick O'Keefe, Superinten-dent, Delivery and Collections, Westchester , IL, wasinterviewed relative to the altercation between RichardThompson and Ronald Mahone . O'Keefe stated he waspresent from the time Richard Thompson reported to workon December 27, 1985 , until the altercation was overand Richard Thompson was sent home .

3 . O'Keefe stated when Richard Thompson came to workon December 27, 1985, he asked O'Keefe where he shouldwork since Ronald Mahone was working his route .O'Keefe took Thompson out on the dock to talk . AfterO'Keefe heard Thompson ' s story, he told Thompson to gohome and take care of his personal problems .

4 . When O'Keefe and Thompson passed Mahone on the wayto O'Keefe ' s office, Mahone tried to get Thompson'sattention indicated he wanted to talk to him . Thompsonjust ignored Mahone . While Thompson and O'Keefe werein O'Keefe ' s office , Mahone kept trying to talk toThompson , but Thompson kept telling him he didn't wantto talk to him . After Thompson told Mahone four timeshe didn't want to talk, Thompson opened the door andwent toward Mahone . O'Keefe said he could not see whograbbed who first , but both men ended up on the floor .

5 . O'Keefe said the whole incident would not haveoccurred if Mahone would have left Thompson alone as hewas told to do . O'Keefe provided a sworn statement,copy attached .

6 . On December 31, 1985 , Ronald Mahone, RegularCarrier , was interviewed relative to the incident .Mahone stated he has known Richard Thompson for quitesome time and related a story of incidents which hadtaken place prior to December 27, 1985 .

7 . On the morning of December 27, 1985 , Mahone statedhe was working Thompson ' s route when Thompson came to

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work . Mahone said he tried to talk to Thompson severaltimes, but Thompson would not talk to him . Finally,Thompson came toward him and Mahone put down his mail .

As Thompson got closer , Mahone ducked down and Thompsonwent over on top of him . Mahone provided a swornwritten statement , copy attached .

8 . On December 31, 1985 , Lloyd Beasley ,Clerk,

Westchester , IL Post office, was interviewed relativeto the incident . Beasley stated he did not see thefight start, but he heard a commotion and went to seewhat happened . Bealsey said he saw Mahone and Thompsonbeing pulled apart . He said he stepped between the twomen and told Thompson to calm down , which he did .Beasley provided a sworn written statement, copyattached .

9 . On January 2, 1986, Richard Thompson was inter-viewed relative to the incident . Thompson stated hewas on leave without pay because of the incident .Thompson then related the story of how Mr . O'Keefe toldhim he must report to work on the morning of December27, 1985 , and when he came to work Richard Mahone wasworking his route .

10 . Thompson stated while he was in the office , Mahonekept trying to talk to him about a problem between thetwo of them . Thompson said he was upset and didn'twant to talk to Mahone . He told him so several times .When Mahone wouldn't let up, Thompson said he startedto walk toward Mahone and Mahone moved toward him .Thompson said when they got close, Mahone crouched downand grabbed him by the thighs .

11 . Thompson said after Mahone grabbed him, he grabbedMahone over the back and around the waist . O'Keefegrabbed him from behind and they fell to the floor .People then came and broke them up . Thompson said ifMahone had not grabbed him by the legs he would nothave touched Mahone . Thompson provided a sworn writtenstatement , copy attached .

12 . On January 3, 1986 , several other carriers whoworked routes close to where the incident took placewere interviewed . Each one said they did not see theincident start .

Grievant testified that he has a seniority date of August

25, 1979 and had worked for the Postal service for approximately

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6 1/2 years . At the time of his removal, he was a full-time

letter carrier .

The record shows that Superintendent O'Keefe proceeded to

issue the emergency suspension and then , after investigation by

the Postal Inspectors and receipt of the Investigative

Memorandum , Joint Exhibit 9, the removal action . O'Keefe also

testified that he suspended Ronald Mahone for seven days, for

failure to follow instructions . According to O'Keefe's

testimony , this is because Mahone had not responded quickly

enough to his direct order to leave the premises when Grievant

began to walk toward him .

The Union points out that in the actual suspension, Union

Exhibit 7, O'Keefe wrote :

"Your actions disrupted the work area, were threateningto other employees and unbecoming of a Postal employee .Therefore , you are being charged with Failure to FollowInstructions ."

Ultimately , the Postal Service reduced the seven day suspension

for Mahone to a three day suspension ( Un . Ex . 9) .

It was upon these facts that the instant matter came before

this Arbitrator for final and binding resolution .

IV . CONTENTIONS OF THE PARTIES

A . The Service

In arguing for the upholding for its emergency suspension

and subsequent removal of Grievant , the Postal Service maintains

that Grievant violated the standards of conduct required of a

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Postal employee, as set forth in the ELM and particularly at

Section 661 .53 and 666 .1 and 666 .2 . The ELM sections prohibit as

unacceptable any criminal conduct or other conduct prejudicial to

the service . The Administrative Support Manual (Jt . Ex . 6) also

prohibits assaults .

It is the further position of the Postal Service that

Grievant, without provocation, reason or excuse, attempted to hit

another employee and shouted remarks at the employee within sight

and hearing of the public . Grievant was clearly the aggressor in

this dispute and initiated the physical contact, the Service

contends . Accordingly, he clearly was guilty of conduct

unbecoming a Postal employee .

The Employer also notes that one defense which Grievant and

the Union offer is that Employer witness and Second Step

Designee for the Service Irving Nelson did not properly conduct

the Step Two meeting in this case . As the Employer understands

the Union argument, it is alleged that Nelson improperly

considered a prior similar incident which had resulted in

discipline over one year before the current emergency suspension

(Jt . Ex . 7) . The service also notes that the Union is apparently

asserting that the prior incident was not noted on the Step Two

decision by Nelson, although it was concededly one basis or

factor for his denial at that step .

The Employer strongly asserts, however, that the evidence

does not support these technical claims . First, it is obvious

that there was a disciplinary action initiated within two years

of the incident involved in this case . On December 29, 1983,

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Grievant received a fourteen day suspension for a similar act,

according to the record evidence (Em . Ex . 6) .

Moreover, Second Step Designee Nelson obviously did not

detail the prior record of Grievant in the Second Step answer ;

his consideration of the Grievant's prior work history was

disclosed, Nelson testified, when he informed the Union

Representative, James J . Smith, at that meeting that he was

considering Grievant's prior record . That Nelson did tell the

Union about his use of Grievant's prior violation is shown by

Employer Exhibit 2 . This is Nelson's report to district employee

and labor relations, which did state at paragraph eight that

Nelson had told Smith that he was considering the previous

incident .

Under these circumstances, argues the Service, the Union has

not proved that there was any technical defect at the Step Two

level . Contrary to the Union's claims, the prior discipline

considered by Nelson was within the two year period provided by

the contract . The December 22, 1983 emergency suspension (Em .

Ex . 5) and the conversion to a fourteen day suspension on

December 29 (Em . Ex . 6) are separate and distinct . They must be

considered as completely separate instances or forms of

discipline . Therefore, the relevant provision of Article 16,

Section 10 has not been violated in either its letter or spirit .

Along the same vein, the fact that the Second Step answer does

not indicate that the prior incident was used by Nelson in his

decision to deny the grievance also does not violate the

contract . The Union and Grievant had notice through the

11

statements by Nelson to Smith at the actual Second Step meeting,

Management urges .

In sum,, the Service asserts that failure to discipline

Grievant under these circumstances would send a message to the

employees working at the involved installation that it is

permissible to fight, to carry personal matters into the work

facility, and to threaten the safety and bodily integrity of

fellow employees . The Postal Service has a duty under the

National Agreement to see to the safety of all in the post

office . Someone who can attempt to commit an assault without

punishment is an unsafe person. The testimony, evidence and

Grievant's admitted actions lead to the logical conclusion that

when the Grievant exited the supervisor's office, he was not

going to shake Mr . Mahone's hand. He intended to assault him and

he in fact made physical contact, a battery under the law . Such

actions constitute conduct'unbecoming a Postal employee .

Therefore, both grievances should be denied in their

entirety, the Service maintains .

B. The Union

Initially, the union argues that Grievant was not discharged

for an assault, although Management improperly claims that an

assault occurred . The Grievant was fired only for conduct

unbecoming a Postal employee . Yet the Union claims that fellow

carrier Mahone was certainly the aggressor or instigator in this

incident ; there is absolutely no evidence that Grievant Thompson

ever struck a blow . Mahone, however, for more serious

12

misconduct, received only a three-day suspension . The Union

accordingly urges that, when the circumstances are fairly

assessed , Grievant should be reinstated, with full back pay and

all other benefits restored .

The Union further claims that the testimony clearly estab-

lished that Mahone was the person who was continually trying to

make contact with Grievant Thompson . The record is clear that

Mahone attempted to talk to Grievant at least three or four

times . O'Keefe so testified, and both Mahone and Grievant

generally agree with that basic fact . The evidence also clearly

shows that each time, Grievant said "I don't want to talk to

you." Therefore, the evidence establishes that Mahone and not

Grievant initiated the dispute or at least brought the personal

activities of the two to the work place .

Second, there are at least three instances of disparate

treatment involved in this case . One such instance is the

obvious fact that Mahone received only a three day suspension,

while Grievant was fired . Yet, from then-Supervisor O'Keefe's

own testimony and statements (Un . Ex . 6 and Em . Ex . 1), it is

obvious that O'Keefe told Mahone "to get away" from Grievant at

least three times before Grievant ever approached Mahone. The

evidence also shows that O'Keefe then told Mahone at least one

other time after the three men became entangled to get out of the

way or leave . It was Mahone's failure to respond to O'Keefe's

direct order which caused the incident in this case, the Union

strongly urges .

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Additionally, the Union presented evidence that there had

been two separate instances where supervisors had been involved

in altercations and no removal resulted . Witnesses were called

by the Union to verify that fist fights have broken out at the

Maywood Postal facility or its Westchester Branch between super-

visors ; none resulted in a removal of any involved supervisor,

the Union argues . The Union accordingly contends that the

doctrine of disparate treatment requires reinstatement of the

Grievant .

Last, the Union claims that the evidence shows that Second

Step Designee Nelson improperly considered discipline imposed on

Grievant from an incident that had occurred more than two years

prior to the current matter, in contravention of the specific

provisions of Article 16, Section 10 of the labor contract . The

Union asserts that that clause provides that "no disciplinary

action initiated against the employee" be used by Management or

considered after two V ears . In this case, the prior incident of

discipline was initiated on December 22 (Em . Ex . 5) although the

disciplinary action " was converted " from an emergency suspension

to a fourteen day suspension or December 29, 1983 , one day within

the two year period .

Management has therefore improperly used an instance of

prior discipline in a manner in which the contract clearly

prohibits . The conversion of the emergency suspension to a

fourteen day suspension was not the " initiation" of discipline,

the Union contends . Instead, the manual procedures of the Postal

Service - well-known to the Arbitrator - are to rescind prior

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discipline and issue a new letter if a separate disciplinary

action is desired . This is the practice of the Postal Service ;

the Arbitrator should be fully aware of that practice through his

experience dealing with these parties , suggests the Union .

The Union also urges that there is a defect in the Second

Step decision, since it does not detail or outline any use by

Management of prior discipline in the instant case . It is to be

remembered that the labor contract requires that "all assertions,

facts and theories" be disclosed by each party prior to

arbitration . The use of prior discipline in determining the just

cause of the discharge at the Second Step, without an indication

on the Step Two answer itself, does not comply with the

requirements for documentation unambiguously set forth in the

National Agreement , the Union argues .

For all the foregoing reasons , the grievances should be

sustained in their entirety, the Union asserts .

V . DISCUSSION AND FINDINGS

This case presents the Arbitrator with a close contest of

credibility . On the one hand, we have the Grievant, who, as the

Service notes, was observed by several employees walking at a

rapid pace toward a fellow letter carrier while shouting at him .

Second, we have the fact that Grievant and Carrier Mahone did

meet and some kind of physical contact occurred . Of that there

can be no doubt . The fact that Supervisor O'Keefe placed

Grievant in a bear hug so that no actual fight occurred can not

lessen the seriousness of the incident or the potential for

15

serious physical harm . In fact , Mahone was injured slightly and

did require minor medical attention from the brief encounter .

On the other hand, we have the acknowledged fact that no

witness other Grievant and Mahone could testify as to who actual-

ly struck whom or how the two men were exactly placed when they

first made contact . And , as emphasized by the Union , we have the

peculiar fact that O'Keefe's grasping of Grievant may indeed have

thrown Grievant into Mahone and actually caused the battery or

physical contact .

The precedent cases cited to me clearly reflect the fact

that summary discharge for assault at the work place constitutes

just cause for discharge . The cases supplied by Management also

reveal that an attempted assault constitutes conduct unbecoming

to a Postal employee and also permits summary removal . I, like

numerous other arbitrators, have uniformly recognized such a

right to summarily discharge an employee without consideration of

his or her prior work record , when, as here, the authority to

discharge is derived from some specific language in the labor

contract ( Article 16 , Section 1 of Jt . Ex . 1) .

Accordingly, the precedent awards presented by Management

merely follow the long line of other cases and capably summarize

what is clearly a consensus rule . No further principles applica-

ble to this case can be gleaned from the cases presented by the

Postal Service, other than the fact that a relatively long-term

employees can be fired for attempting to attack fellow employees

at the work station or otherwise , just as when the attempts to

assault others are successful and a fight occurs .

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As in so many cases involving similar issues, the

in this particular dispute concerns (1) not whether an

assault on a fellow employee constitutes just case for

argument

attempted

discharge

but whether such an assault did in fact occur ; and (2) whether,

assuming Grievant did intend to strike and did make actual

physical contact with carrier Mahone by striking at least two

blows while the two were on the work floor ( as seems rather

obvious by the overwhelming evidence presented), discharge was a

fair and just penalty for this conduct, which the Union views as

provoked by Mahone himself .

As noted above, the Union has emphasized a third issue, that

of whether Second Step Designee Nelson violated the rules and

regulations of the Postal Service in his conduct of the Second

Step meeting . I will discuss that technical point after a

discussion of the actual merits involved in this case .

It is my opinion, based on my evaluation of the testimony of

the witnesses and the documentary evidence submitted, that an

attempted assault on carrier Mahone obviously occurred on the

workfloor . This fact was clearly and convincingly established by

the Postal Service . By this, I mean that Grievant Thompson

clearly lost his temper and attempted to assault Mahone outside

the superior's office area and near the customer service or

public areas of the post office, after whatever initial

interchange in Supervisor O'Keefe's . office had ceased. My

reasons for reaching this conclusion are as follows .

First, I find that virtually all witnesses concede that

Grievant began to walk toward Mahone and, while he was doing so,

17

-began to'shout and swear at him . That is in accord with Mahone's

description of the events . At least two other occurrence wit-

nesses, including Supervisor O'Keefe, generally outlined the same

basic facts . Even the Grievant testified that, in broad scope,

these witnesses were accurate in their observations of what

happened in plain view after Mahone attempted at least four times

to talk to Grievant and Grievant had told him to get away from

him or leave him alone .

The important point of agreement in the massive amount of

testimony presented is that while Grievant and Mahone were

capable of being observed, it was Grievant who moved toward

Mahone and Grievant who was restrained by O'Keefe at or just

before the point of physical contact . No convincing evidence was

presented that Mahone was shouting obscenities, was coming toward

Grievant in a threatening way, or was pushing or striking at him

during the times immediately before their physical contact .

The problem comes down to the issue of provocation and

whether Mahone's actions immediately before the physical contact

were sufficient to provoke Grievant and to hang on to him the tag

of aggressor . It is to be noted that Grievant and the Union are

relying on the fact that Mahone was the aggressor throughout the

entire sequence of events, or that he at least triggered a

response for which Grievant can not be held responsible .

Grievant claims further that Mahone grabbed him around his legs,

and attempted to tackle him . It was only at that point that

Grievant grabbed him around the head, he claims . The Union

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maintains that Grievant's acts were reasonable under the

circumstances , since Mahone had tried to talk to him at least

four times just prior to these events, in a provocative and

unreasonable effort to "work things out ."

As both sides concede, Grievant was under great physical and

emotional stress on the day in question . Grievant had attempted

to report off at approximately 6 A.M. that morning and had told

his supervisor that he was suffering from serious personal

problems . Management ordered Grievant to come in to work anyway .

When Grievant arrived at the work site, his physical appearance

gave notice to Supervisor O'Keefe that there was a problem in

keeping Grievant at work . After a brief discussion, where

Grievant disclosed his travails of the prior evening, and during

which O'Keefe apparently smelled alcohol on Grievant's breath,

O'Keefe excused Grievant and told him to go home . It was when

Grievant was getting his coat and then proceeding to the supervi-

sor's office to pick up his check that Mahone approached him for

the first time and attempted to discuss their off-duty problems .

Grievant told Mahone , in essence , to get away from him . As

Grievant proceeded to the office, Mahone again approached

Grievant and then persisted in asking to talk to him on at least

three separate occasions . According to Supervisor O'Keefe, it

was during that period that O'Keefe initially told Mahone to get

away from the Grievant and stay away from him . That is the

statement contained in the handwritten affidavit of O'Keefe,

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introduced into evidence as Employer's Exhibit 1 . Finally, while

Grievant was moving toward Mahone in a threatening way, O'Keefe

for at least the second or third time, instructed Mahone to move

away. This time, though, O'Keefe shouted a direct order for

Mahone to leave the premises and get out of the way. All these

orders or requests from O'Keefe to Mahone were not obeyed .

As noted by Arbitrator Harry Dworkin, there are occasions

where one employee may be terminated because of fighting and

another employee may receive no discipline whatsoever, based on

the degree of involvement in the fight and the validity of the

ability to defend one self against clear aggressive acts or

invasions of bodily integrity . See Schuler Axle Co . , 51 LA 210 .

See also Convair Div ., 48 LA1099 (H. Block, 1967) where an

employee was given a five-day disciplinary lay-off for his

involvement in an altercation with another employee in a plant

cafeteria during working hours . Arbitrator Block emphasized the

on-premises location of the altercation and the potential effect

of such conduct upon plant operations . Block states :

"The Arbitrator must underscore the gravity of theincident, if for no other reason than it happened onthe Company premises, inside the cafeteria provided forCompany personnel and in the presence of other employ-ees ."

It is thus apparent that one employee can be terminated and

another merely suspended, as was the case in this dispute,

without disparate treatment being involved . However, the employ-

ee who is given the lesser discipline must not be the aggressor

20

or initiator of the dispute and certainly must be found to have

diminished or lessened culpability or fault .

The problem with this case is that Grievant and the Union

claim that Mahone provoked him, rather than Grievant attempting

to provoke or attack Mahone . As I have stated, I do not believe

Grievant's assertions that Mahone attempted to grab Grievant

around the legs as a first blow or strike at Grievant . At any

rate, I find that, at best, Grievant's testimony, if fully

credited, was that Mahone responded in fear when Grievant charged

him in a threatening or provoking way . That much is clear from

any sensible reading of this record .

The issue thus comes down to whether Mahone's persistence in

his attempts to discuss with Grievant personal matters or to

resolve the problems existing between the two was sufficient

provocation to make him equally at fault . There is no doubt or

dispute that Supervisor O'Keefe ordered Mahone away from Grievant

and, had Mahone responded, no incident would have occurred . That

was the basis for O'Keefe's imposition of a suspension against

Mahone in the first place . Therefore, some fault on Mahone's

part is involved . The more difficult question is whether the

acts of Mahone in talking to Grievant constituted cause, under

these peculiar facts and circumstances, for Grievant's

inappropriate response?

It seems plain to me that Mahone engaged in no overtly

aggressive act against Grievant, at least at the work place ; he

did not shout at Grievant, swear at him, or attempt to move

toward him, as Grievant did to Mahone . Even so , Mahone pressed

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his desire for conversation and to resolve their off-premises

dispute far beyond the bounds of common sense . He knew Grievant

was upset and emotionally in turmoil . He was told by Grievant

and then-Supervisor O'Keefe to stay away numerous times . He

persisted in entangling himself with Grievant anyway . This is

what constitutes the degree of provocation involved which

justified Mahone's being disciplined . Was it sufficient to

mitigate the attempted assault? After careful consideration, I

believe, under these unique facts, that it was .

In the Arbitrator's opinion, the "aggressor" in most

altercations is the employee who causes the dispute to go beyond

the verbal stage by placing or attempting to place his/her hands

upon another employee in an aggressive or offensive manner . It

is unclear from the record whether Grievant did so here, although

he walked or trotted over to Mahone and began to shout at him .

It is thus not clear whether it was the conduct of Grievant or

Mahone that triggered the events that followed, ending with a

wrestling match on the work floor among Grievant, Supervisor

O'Keefe and Mahone . It is also significant that the record is

unclear whether Mahone placed a hand upon the Grievant with an

offensive or aggressive intent at that point .

Grievant committed a substantial breach of a clear and

reasonable Employer work rule . Without belaboring the point, he

was subject to serious discipline . After all, it was Grievant's

ultimate responsibility as an adult and a presumably responsible

worker to keep his personal life and off-duty problems separate

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from his responsibilities and the manner in which he conducted

himself at the work station . I so hold . However, the fact that

Mahone was at least to some degree the proximate cause of the

incident and received only three -days off seems to me to be an

example of disparate treatment . The line between aggressor and

victim is too fuzzy for the great difference in penalty, in my

opinion .

Since I have determined that the Employer has failed to

prove its case on the merits , it is unnecessary to resolve the

two procedural or technical issues raised by the Union .

Accordingly , I do not reach these issues for final and binding

determination .

As I have noted above, I have found Grievant Thompson to

have engaged in serious misconduct not directly proportionate to

Mahone's preceding actions . Therefore , no back pay is awarded to

Grievant Thompson under these facts .

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VI . AWARD

For the reasons stated above and incorporated herein

fully rewritten , the discharge grievance is sustained in

as if

part .

The emergency suspension grievance is denied . Grievant is

ordered reinstated with full seniority and other contractual

benefits restored , but with no back pay .

Elliott H . Goldstein

December 8, 1986Chicago, Illinois

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