Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 6940
SECOND DIVISION Docket No. 6713
2-C&0-SW-' 75
The Second Division consisted of the regular members and in
addition Referee Dana E. Eischen when award was rendered.
(
( Sheet Metal Workers International Association
Parties to Dispute:
( The Chesapeake and Ohio Railway Company
Dispute: Claim of Employes:
1. That under the Current Agreement, the Chesapeake and Ohio
Railway Company, unjustly dismissed from service, Sheet
Metal Worker Paul E-. Boyles, from March 28, 1973.
2. That accordingly, the Chesapeake and Ohio Railway Company
be ordered to re-instate Sheet Metal Worker Paul E. Boyles
to his former position, compensate him for all time lost .
from March 28, 1973 until he is restored to service, with '
Seniority un-impaired, made whole for all vacation rights,
and payment of Health and Welfare and death benefits under
the Travelers Insurance Policy GA -23000.
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 were given due notice of hearing thereon.
This is a discipline case arising out of an illegal work stoppage at
Russell, Kentucky on March 1,-1973, which subsequently was halted by a federal
court injunction. The record shows that the strike was precipitated by the claim
of certain Sheet Metal Workers (pipefitters) to work being performed by the Carmen
Craft. Claimant Paul E. Boyles was an officer in the Sheet Metal Workers International Association, holding both the General Chairmanship of District Council
No. 41 and the Local Chairman office, representing the men at Russell-Shops. On
March 1, 1973 after apprising the Sheet Metal Workers at Russell that the jurisdictional claim had not been resolved to their satisfaction Claimant participated
in a strike vote. A t approximately noon Claimant informed Carrier officials that
his people were "laying off" at 1:00 p.m. and at that time a picket line was
established. Claimant served on the picket line. Carrier's operations were thus
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interrupted and trains delayed at Russell for several hours when other
employees refused to cross the picket lines. The picket line was dismantled
and operations resumed upon service of restraining orders pursuant to the
injunction.
On March 5, 1975 Claimant was sent a notice of investigation which
read as follows:
"You
are charged with leaving your assignment during
the first shift on March 1, 1973, without permission,
illegal picketing of The Chesapeake and Ohio Railway
Company property, engaging in an illegal strike, disloyalty and conduct unbecoming an employe of this Company at Russell, Kentucky, on the same date, resulting
in disruption of the Company's operation and hampering
its ability to fulfill its duties to shippers and the
public, as required by law."
Following an investigation Claimant was advised on March 28, 1973 that he
was dismissed from all. service of the Carrier for his responsibility in
connection with the illegal strike.
Petitioner maintains that Claimant was not guilty of the charges in
that he tried to stop the strike rather than encourage it. Close examination
of the record evidence shows no support for this position. The transcript
contains Claimant's admission that he participated in the illegal strike and
performed picket duty. It is further asserted that this action is justified
by Carrier's assignment of certain caboose work to carmen rather than pipefitters.
Regardless of alleged provocation, adequate grievance machinery is available
to resolve such disputes under orderly procedures 'in the Agreement. The alleged
jurisdictional claim does not exonerate or mitigate Claimant's misconduct in
the facts and circumstances herein.
There can br: no doubt that the record evidence justifies the imposition
of discipline by Carrier. Nor is there any serious contention of procedural
irregularity herein. The only question remaining is whether the quantum of '.
discipline imposed is in all of the circumstances arbitrary and unreasonably
harsh.
We have reviewed carefully the record and the positions of the parties.'
Analysis shows that fourteen (14) employees including Claimant participated in
the illegal strike on March 1, 1973. Of these 14, 1 received-a 15-day suspension,
11 were suspended for 30 days, 1 employee who failed to attend the hearing and
investigation was dismissed and Claimant was dismissed. The other dismissed
employee has since been returned to service and Claimant alone of the fourteen
Form 1
Pa ge 3
Award No. 6940
Docket No. 6713
2-C&0-SMW-'75
thus was dismissed from all service. Petitioner alleges that such imposition
of discipline was discriminatory and a violation of Rule 39 of the Agreement,
to wit:
"The company
will
in no way discriminate against
employes who are, from time to time, selected to
represent their respective crafts. Local and
general committees will be granted leave of absence
when selected to represent other employes'.'r
In our judgement Rule 39 is without relevance herein and comprises no
basis for this claim. The record shows that Claimant, a local and general
officer initiated and participated in a work stoppage which he knew to be
illegal and without sanction from his international union. Moreover, the
record shows that Claimant had been advised only three days earlier that
the Organization was going to move the jurisdictional work claim through the
appropriate contract grievance machinery. We can find on this record not
one scintilla of evidence to support Claimant's assertion that he exercized
the responsibility and influence of his office to advise and counsel the ,
employees he represented to abide by the collective bargaining agreement.
Rather, all available evidence leads to the opposite conclusion. In these
circumstances, Claimant can find no comfort in Rule 39.
We follow the principles enunciated in Award 5614:
"Officers of a Union have responsibilities during a
strike situation which are greater than those of
ordinary union members. Participation in an unauthorized strike by a union officer is a more serious
offense than in the case of an ordinary union member
because of responsibilities of leadership and the
influential effect of such conduct. Furthermore,
proof of instigation of an unauthorized work stoppage
may be by circumstantial evidence."
In the facts and circumstances herein we cannot conclude that the
discipline imposed was so harsh and disproportionate to the offense as to be
arbitrary and unreasonable. We must deny the claim.
A WA R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
By
Ros marie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 26th day
of
September, 7.975.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division