Foam 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No-7731
 _ SECOND DIVISION Docket No. 7628
 2-sPT-MA-178



Parties to Dispute:

Dispute: Claim of Employes:




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 employee involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 193+.

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



disciplinary suspension against Claimant for engaging in an altercation with a fellow employe while on duty and on company property.

 Before discussion the merits of the case, there is a jurisdictional issue which must be considered. The organization contends that the record contains no submission by the Carrier. However, Carrier did file a rebuttal to the organization's submission which is in the record. According to the record, the following facts explain the absence of a submission from Carrier. On November 1, 1977, Carrier was notified of the Organization's intention to file the submission. Thereafter a corrected notice was received from this Division establishing the date of December 12, 1977 as the due date for Carrier's submission. By letter dated December 12, 1977 Carrier requested its first extension of 30 days. Carrier says it did not receive a response to this request. Division records indicate this letter was received December 15, 1977. On December 16th, the Division wrote Carrier and said that since it had not filed its ex pane submission on or before
 Form 1 Award No. 7731
 Page 2 Docket No. 7628

the due date (December 12), it was granting Carrier 15 days, or until January 3, 1978, to file its case with the understanding that no further extensions would be granted. Carrier records indicate that this letter was not received until December 28, 1977, and, on Janta;cy 4, 1978, Carrier, still believing that it had been granted the first 30 days extension, wrote requesting another extension. Records indicate that the Division never responded to this letter, but, instead, by letter of January 18, 1978, forwarded a copy of the Organization's submission to the Carrier and advised it that it could file a rebuttal statement, which, it did. In the face of this, the organization asks that the claim be sustained as presented since Carrier did not set forth its facts in submission foam.

 Carrier responds with reference to no less than seven (7) previous cases where ,requested extensions of time were requested on the dates the documents were due, and such requests were granted without question. It also refers to a June 18, 1975 letter from the National Railway Labor Conference which, in effect, articulates the same thing.

 Our review and research of the Second Division's .procedures on such matters discloses that until September 23, 1977, the Division often granted numerous extensions on individual cases. On September 27, by action of the Division, the Executive Secretary was granted authority to give only four (4) extensions on submissions and rebuttals. Then, in the minutes of the Division's January 6, 1978 meeting the following statement appears regarding time limits for filing material:

Sumtnaxily, it appears that prior to the time such resolutions were adopted, the rule of thumb guided the parties in such matters. We note with great interest the findings in the case of Chicago, Rock Island and Pacific Company vs. Wells, U. S. Court of Appeals, Seventh Circuit, No. 73-~5, decided July g, 1974:


Form 1 Award No. 7731
 Page 3 Docket No. 7628
 2-sgr-MA-' 78
 "one-day late postmark of January 30, 1968, the Executive
 Secretary referred the plaintiff's request to the Division
 for instructions on February 2, 1968. The Division considered
 the matter on February 6, 1968, declined the plaintiff's
 request, and instructed the Executive Secretary to inform
 plaintiff that its request was declined because of "a late
 postmark." The next day plaintiff wrote a letter of protest
 but to no avail.
 The Division had no rule at that time adopting a United
 States postmark as the criterion for determining the timeliness
 of a request or tender. It was not until June 5, 1970, nearly
 two and one-half years after defaulting plaintiff, that such a
 rule or policy was adopted. Such new rule or policy was not
 made public and the evidence was that plaintiff had no knowledge
 of it. To find plaintiff in default without giving it an
 opportunity to establish that the mailing was timely, or if not,
 whether there were sufficient extenuating circumstances to
 warrant granting the extension, is at best harsh action and at
 worst inexcusable.
 It further appears from the record that on a number of
 occasions in 1966 extensions were granted or filings were
 accepted when the requests made were clearly late. On other
 occasions reply submissions were accepted when received late
 in envelopes bearing illegible postmarks. Another late request
 was granted when stamped with a timely postage meter date. Other
 parties were permitted to obtain extensions by telephone, a
 practice not generally known and one that was not made known
 to plaintiff at that time. In short, the practice of the
 Division indicates that the extension would probably have been
 granted if the envelope had borne only the postage meter date
 and not the added postmark dated one day later; if the
 telephone practice had been made known to .plaintiff; or if
 the postmark on the envelope had been smeared or otherwise
 made illegible. Indeed, the Division is hard put to justify
 this illogical pattern. It certainly is not in keeping with
 its proclaimed policy of liberality. By contrast, it was shown
 in some cases extensions had been granted as matey as 8, 11, 19,
 21 and even 40 times.
 Even more indicative of the unfairness of this review by the
 Division is the lack of prejudice that would have resulted if
 it had granted the extension, or at least have permitted
 plaintiff an opportunity to make its showing. Plaintiff was
 defaulted on February 6, 1968. The Division did not consider
 the claim of Wells until October 3, 1968. Because of intervening
 circumstances, the Division could not consider proceeding
 further until April 23, 1970. This litigation was not originally
 Form 1 Award No. 7731
 Page 4 Docket No. 7628
 2-s Pr-rte- · 78
 "filed until January 8, 1971. It is clear that there can be
 no claim that the Division's default of plaintiff was necessary
 to efficiently expedite the case.
 We have no difficulty in finally concluding that there is
 more than adequate factual support to uphold the district
 court's determination that in this proceeding plaintiff was
 denied due process of law under the Fifth Amendment."

 As was noted above, the Court of Appeals upheld the District Court's determination that failing to accept Carrier's submission, under circumstances closely parallel to those in the instant case, denied Carrier due process.

 Based on the judicial findings of this case, we likewise reach the same conclusion here. However, in light of the clarifications made by the Second Division on its procedures, and our presumption that all affected' parties have been notified of these changes and clarifications, we must point out that the Rock Island case cannot forever be cited as a precedent should such a dispute arise again.

 Conversely, turning to the case's merits, we find that claimant and a fellow employs engaged in an unpexmitted altercation fox which they were both at fault.

 However, the evidence strongly shows that while claimant contributed in part to this scuffle, it was the other employs who continued to badger the claimant to the extent of even pulling claimant's hair. It was at this point that claimant, trying to protect himself, pushed the aggressor aside and admonished him to leave him alone.

 Rather than accepting the above blandishments, the other employs continued his aggressive behavior, which resulted in both .persons falling on the floor fighting.

 This is behavior which cannot be countenanced in our critical industry and we warn claimant that it must not be repeated again. Because he appeared to be reacting in self defense and was ostensibly more the object of the attack rather than the initiator, we believe that the discipline assessed was too severe. We will reduce it to a thirty (30) days suspension and order that claimant be compensated for the balance of the time lost in accordance with Agreement Rule 38.

    Claim sustained in accordance with the findings.

Form 1 Award No. 7781
 page 5 Docket No. 7628
 2-SPr-MA-t78
 NATIONAL RAILROAD ADJUSTMENT BOARD
 By Order of Second Division
 Attest: Executive Secretary
 National Railroad Adjustment Board
 BY _
 ~../ R semarie Brasch - Administrative Assistant

 Dated at Chicago, Illinois, this lst day of November, 1978,