(b) Should an employe subject to this agreement believe he has been unjustly dealt with, or any of the provisions of this agreement have been violated, the case may be taken to the foreman and General Foreman, each in the order named, by the duly authorized local committee or their representative, within ten (10) days. Requests for conference to be in writing stating the subject to be discussed. All conferences between the local officials and the local committee to be held during regular working hours without loss of time to committeemen.

(c) If the result still be unsatisfactory, the general committee or their representative, shall have the right of appeal in writing within thirty (30) days, to the higher officers designated to handle such matters in their respective order and conference will be promptly arranged.

(d) If it is found that an employe has been unjustly suspended or dismissed from the service, such employe shall be reinstated with his seniority rights unimpaired and compensated for the wage loss, if any, resulting from said suspension or dismissal.

(e) Should the highest designated railroad official or his duly authorized representative, and the duly authorized representative of the employe as provided herein, fail to agree, the case may then be handled in accordance with the Railway Labor Act, if presented to the appropriate board within sixty (60) days after decision.

(f) Prior to assertion of grievances as herein provided, and while questions of grievances are pending, there will neither be a shutdown by the employer nor a suspension of work by the employes.

(g) An employe who has been in the service of the company sixty (60) days shall not be dismissed for incompetency."

That letter was answered by the company's letter of September 27, 1960. The general chairman replied to that letter in his of October 3, 1960. Nothing further has been heard from the general chairman, and the next word the company received regarding Mr. Perry was a copy of Mr. Michael Fox's letter of November 14, 1960, to your Board.

The following are some of the operating rules of this company, to which claimant was subject, and a copy of which he was furnished, and for which he signed receipt:

The general notice, Page 2, of the Book of Rules, reads in part as follows:

"To enter or remain in the service is an assurance of willingness

to obey the rules.

The service demands the faithful, intelligent and courteous discharge of duty.

General Rules:

A. Employes whose duties are prescribed by these rules must provide themselves with a copy.

B. Employes must be conversant with and obey the rules and special instructions. If in doubt as to their meaning, they must apply to proper authority for an explanation.

C. The use of intoxicants or narcotics, or employes having them in their possession when reporting for or while on duty, is prohibited.

Special Rules:

704. Indifference in the performance of duties will not be condoned. Employes who are careless of the safety of themselves or others, insubordinate, dishonest, immoral, quarrelsome, or otherwise vicious, will not be retained in the service.

705. Courteous, gentlemanly deportment is required of all employes in their dealings with the public, their subordinates, and each other. Boisterous, profane or vulgar language is forbidden. Employes must not enter into altercation, but will report the facts to their immediate superior.

Playing practical jokes, scuffling, wrestling or fighting on Company property, as well as throwing of tools or articles, is prohibited.” POSITION OF CARRIER:

PART 1. A MOTION TO DISMISS

It is the carrier's position that petitioner did not meet the requirements of Rule 16 of the agreement between the parties, nor the Railway Labor Act, and that this alleged dispute is therefore not subject to adjudication by your Honorable Board.

One of the general purposes of the Railway Labor Act, set forth under Section 2 thereof is:

"(5) to provide for the prompt and orderly settlement of all disputes ***"

Section 3, First (i) of the Act reads as follows:

"The disputes between an employe or group of employes and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, including cases pending and unadjusted on the date of approval of this Act, shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes."

Rule 16 of the effective agreement between the parties has been quoted above, in the carrier's ex parte statement of facts. We respectfully direct your Board's attention to Paragraph (b) of that rule. It clearly provides that if an employe considers himself "unjustly dealt with" or if he considers that the agreement has been violated, the matter must be handled within ten (10) days, and that the matter will be taken up with "the foreman and the General Foreman, each in the order named." In this case no appeal was made

to anyone within ten days. Claimant Perry was dismissed on August 29, 1960. No one attempted to handle the matter until September 19, 1960, and this was twenty-one (21) days subsequent to his dismissal.

The appeal to the higher officer or officers of the carrier provided for in Paragraph (c) of Rule 16 is contingent upon the requirements of Paragraph (b) having been complied with. This is evident from the first few words of said Paragraph (c), to wit:

"(c) If the result still be unsatisfactory ***”

Petitioner seeks to invoke the thirty day provision of Rule 16 (c), but this cannot rightly be accomplished by their simply ignoring Paragraph (b) of the rule. In this case, if any further handling was to be given, the duly authorized local committee or their representative should have taken it up with the general foreman, and within ten (10) days. Even if petitioner's erroneous procedure of by-passing the general foreman were to be overlooked, the fact remains that the first appeal had to be made within ten (10) days. This requirement was not met.

The carrier respectfully requests the Board to dismiss this case for the reasons stated above.

PART II. THE MERITS.

Without prejudice to Part I above, the carrier shall now state its position on the merits.

Claimant Perry cursed a fellow employe and then committed a vicious act, apparently an attempt to murder, or in any event designed to inflict great bodily harm on said employe. The employe against whom these acts were committed stands five feet and nine inches tall, weighs 184 pounds, and at the time he was stabbed by claimant had his left arm broken and in a cast, and was using his right hand to steady himself while walking up a flight of steps. Claimant thrust the ice pick at Mr. Cannon's body, and he deflected the weapon with his right arm, and the ice pick was thrust through his arm. Claimant unquestionably intended to pierce Mr. Cannon's body with the ice pick, one of the most feared of close combat weapons. Claimant had no physical defect of any kind at the time; he is a strapping man, well over six feet tall and weighs considerably more than Mr. Cannon, the man he stabbed.

How petitioner can seek to justify their request for claimant's reinstatement to the service, pay for time lost, etc., is more than we can comprehend. We find that several of Perry's former associate employes feel relieved that he is no longer working among them. It was not known by any officer or supervisor of the company prior to this event that Perry is prone to habitual acts of violence, and is an extremely heavy drinker, as well as suspected dope addict. These facts came to light when the officers of the company were considering this case on appeal on the property.

Several of claimant's former co-workers found it strange that virtually everyone did not know claimant was a violent man and a heavy drinker, and that he had been drinking and/or using "dope" on the job, and especially when working the evening shift. The regular foreman had suspected this, but said claimant apparently ordinarily partook of something with little or no odor, and it was hard to evaluate his condition. He had given cause for suspicion several times by his rough and antagonistic attitude. The instant case was the

first time anyone in authority had been able to positively identify the smell of intoxicants while claimant was on duty.

The facts developed in the investigation concerning claimant's violence caused us to inquire as to his criminal record. He has a record which makes us wonder why he has not been confined to a penal institution continuously during the last several years. We do not know claimant's status now, but understand on good authority that he will be prosecuted to the extent permissible by law for his attack on Mr. Cannon.

The Carrier offered to make Mr. Perry's police record available to petitioner's general chairman. We were not then and are not now at full liberty to publish his record. If petitioner has made a proper investigation in that connection, we assure your Board that they found claimant has a record of at least six skirmishes with the law within the last four years, involving drunkenness and acts of violence.

Rather than seek claimant's reinstatement, petitioner should realize that it was fortunate for their other constituents on this property, for the carrier, and the public interest that claimant was removed from the property before his violence cost someone his life.

The carrier respectfully submits that claimant was given a proper investigation and proven guilty of the very serious charges against him. We further submit that this matter should be dismissed for the reasons shown in Part I hereof. If for any reason the case is not dismissed, we respectfully request that the claim be in all respects denied.

FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.

This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

Parties to said dispute waived right of appearance at hearing thereon.

The Claimant Edward Perry was employed by the Carrier as a Coach Cleaner at Dallas, Texas. On August 19, 1960, he was assigned to drive an ice tractor during his regular working hours. When he began his shift at 3:00 P. M., it was found that the tractor normally used for icing was out of order and had to be repaired. As a result, the Claimant was told by Coach Yard Foreman M. J. Williamson to use an electrician's tractor until the necessary repairs were made. At about 8:20 P. M. the Claimant returned the electrician's tractor and got on the ice tractor which by now had been repaired by Machinist W. G. Cannon. The Claimant started the tractor, drove it a short distance, and then left it without shutting off the motor. Cannon, who was standing nearby, asked him where he was going and told him the tractor should not be left idling. Cannon also told the Claimant to come back and shut the motor off. An argument ensued between the Claimant and Cannon, the content of which is in dispute. But it ended with the Claimant thrusting an ice pick at Cannon's stomach. The latter, whose left arm was in cast because of a broken wrist, attempted to deflect the ice pick with his right arm. The ice pick hit Cannon's right arm, causing a slight injury which required medical treatment. Cannon did not fight back, but ran to the shop. The Claimant also ran away. Foreman

Williamson, who had observed the incident from close proximity, shouted at him to come back. The Claimant did not stop and was not found until about 9:00 P. M., when he was arrested by a police officer.

The Carrier charged the Claimant with having (a) been under the influence of intoxicants, (b) cursed and inflicted physical injury upon Cannon, and (c) failed properly to perform his duties after 8:20 P. M. on the day in question.

After a formal hearing, the claimant was suspended from service and subsequently dismissed therefrom, effective as of August 29, 1960. He filed the instant grievance in which he requested reinstatement with all rights unimpaired and compensation for all time lost. The Carrier denied the grievance which is now before us for adjudication.

1. An employer's premises are a place for the peaceful performance of work. They are not a battleground. Fighting on the premises generally runs counter to the elementary requirements of plant efficiency, discipline, and safety. The employer's right to invoke disciplinary penalties, including dismissal, against the guilty party is, therefore, beyond doubt. However, the fact that an employe was involved in such a fight does not in itself subject him to a disciplinary penalty unless it can be established that he was the aggressor or unless conflicting evidence does not permit identification of the aggressor. Moreover, an act of aggression does not consist of actual physical violence alone, but may also involve insulting or threatening remarks or actions which can reasonably be expected to start a fight. See: Lawrence Stessin, Employee Discipline, Washington, D. C., BNA Incorporated, 1960, pp. 90-96 and cases cited therein.

In applying the above principles to the facts underlying the case at hand, we have reached the following conclusions:

The Claimant contends that he was insulted and provoked by Cannon and solely acted in self-defense when he threw the ice pick at him. The evidence on the record considered as a whole does not sustain the Claimant's contention. On the contrary, the available evidence convincingly proves that it was the Claimant who used insulting language, and not Cannon. The record also discloses beyond doubt that Cannon, who was partly disabled because of a cast on his left arm, neither physically attacked the Claimant nor threatened him in a way which could reasonably be regarded by the Claimant as an imminent physical assault upon him.

In summary, we find that the Claimant attacked Cannon with a dangerous weapon without first being physically attacked or provoked by the latter. Consequently, it cannot possibly be said that the Claimant acted in justifiable self-defense.

2. It is true, as submitted by the Claimant, that he was acquitted of a charge of aggravated assault with a deadly weapon by a jury in the Dallas County Criminal Court. However, the verdict of the jury is not binding upon us. Section 3, First (i) of the Railway Labor Act confers upon us exclusive primary jurisdiction to decide disputes arising out of grievances on the basis of all the evidence before us. See: Slocum v. Delaware, Lackawanna & Western Railroad Co., 339 U. S. 239; 70 S. Ct. 577 (1950); Brotherhood of Railroad Trainmen v. Chicago, River and Indiana Railroad Co., 353 U. S. 30; 77 S. Ct. 635 (1957); Pennsylvania Railroad Co. v. Day, 360 U.S. 548; 79 S. Ct. 1322 (1959).