( (formerly Transportation-Communication

                  ( Division, BRAC)

PARTIES TO DISPUTE:
 ( The Indianapolis Union Railway Company

                STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-7465) that:


(a) The Carrier violated the Rules Agreement, effective August 16, 1948 and revised April 1, 1954, particularly Rule 18, when it assessed discipline of dismissal on D. L. Bear, Telephone Operator (Telegrapher), Churchman Avenue, Indianapolis Union Railway Company.

 (b) Claimant D. L. Bear's record be cleared of the charges brought against him on or about March 22, 1973.

 (c) Claimant D. L. Bear be restored to service with seniority and all other rights unimpaired, and b sustained during the period out of service, plus interest at 67 per annum compounded daily.

 OPINION OF BOARD: Claimant, a Telephone Operator with eight years
 of service with Carrier, engaged in a heated dis
 cussion with a conductor on March 22, 1973 during his tour of duty.
 The conductor allegedly called Claimant an obscene name and started
 to walk away to comply with the instructions obtained from Claimant.
 Claimant grabbed the conductor by the arm, turned him around and
 struck him in the face with his fist. Following an investigation
 Claimant was found guilty of fighting while on duty and dismissed
 from service.

          Petitioner first contends that Claimant was not afforded

`~ a fair and impartial hearing as provided by the Rules. This contention is neither specific nor su name used by the Conductor to assult him; that further he had been harrassed over a period of time by the crews and hence this was a case of "aggravated assault". For these reasons, the Organization claims that the decision to dismiss Claimant was unreasonable, arbitrary, capricious and amounted to
                  Award Number 20314 Page 2

                  Docket Number CL-20452


The record of the investigation establishes that Claimant engaged, as the agressor, in a physical assault on the conductor. Even if the verbal provocation is assumed, it was not sufficient to justify the attack under any circumstances. Carrier's findings of guilt were amply supported by the testimony at the investigation. Based on the employe's past record as well as the infraction per se, we find that the penalty of dismissal was clearly justified.

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


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; an
        That the Agreement was not violated.


                  A W A R D


        Claim denied.


                        NATIONAL RAILROAD ADJUSTMENT BOARD

                        By Order of Third Division


ATTEST:
        Executive Se retary


Dated at Chicago, Illinois, this 28th day of June 1974.