. PUBLIC UNW BOAPD NO. 2,420




    CONSOLIDATED' RAIL CORPORATION - -' '. . -


    DOCKET NO.-418

                                                -. .


                    STATEMENT OF CTAIM:


              l._ The dismissal of Claimant Maynard E. Buxton was unfair, arbitrary, capricious, unreasonable and wit: out just and sufficient cause.


        2.. Claimant Buxton should be exonerated of all charges,

        restored to service,. without loss of compensation.,

        vi.th seniority and vacation rights unimpaired, and

        should enjoy all.those benefits which he previously

        . .._ .-:, etTjoyed prior to his dismissal.


    OPINION OF BOARD:


          Claimant was tried on,. found guilty of, and disciplined


    by discharge for the following charges:


              nl;. Failure to report for duty on your regular assignment at 3:30 PM on September 23, and 29, 1978.


              °"2; Engaging,, abetting and participating in an unauthorized work stoppage at Canton MW Shop at 3:45 PM and 5:30 PM on September 28, 1.978 and at 4:05 PM and 5115 PM on September 29, 1978.


          '3. Influencing fellow employees to illegally picket

          the Company's property and/or not to perform their

          assigned duties in that your car was blocking Broadway

          Road Entrance at 5:30 PM on September 28, 1978.


              "4; Insubordination in that you refused a direct order to return to duty from R. Campitella, Shop Engineer at 3:45 PM on September 28, 1978."

PUBLIC LAW BOARD 2420 '-2- AWARD NO. 10
The disciplinary termination was imposed on Claimant because of his alleged participation in an illegal and unauthorized strike at Carrier's Canton, Ohio, Maintenance of Way Shop on September 28 and. 29,. 1978 by members of Local 3050 of the Brotherhood of Maintenance of Way Employees employed there.
        We have described the general circumstances of this strike

and picketing situation revealed at the hearings thereon in our
 previous Award No.. i, as well as our opinions on certain procedural
 and substantive questions raised by Organization there as veil
 as here. _.... . -. .. . . . -, .... . .
 Turning to the particular facts of the instant situation, the record-shows: . .
 1._ It is: undisputed that Claimant,- an M.N. Machinist on the 3t30 PM to Midnight shift at Carrier's Canton M. W. Shop, failed to appear there for work on September 28 and September 29,. 1978, while an illegal and unauthorized strike of B.M.-W.B. employees was taking place at that facility on those days.
 2.. Claimant's explanation at the hearing held on the subject charges was that he proceeded to ;pork at his usual time on the afternoon of September 28, but encountered .a "bunch of people" at the main entrance with a strike sign on display where they stood. His. further testimony iss "There were people all around talking, So I walked around .:. I didn't know what to do, I didn't want to cross the picket line because there were people threatening like. There was people in one. group, and another group and you heard all around 'you go across it and you are in trouble,' you know, something would happen to me, or my car, or where I lived. I was more or less
 PUBLIC. LAW BOARD 2420 -3- AWARD NO. 10

 mixed up, confused-, and didn't know what the hell to do. So I walked over to the beer joint and I called off ... I said I couldn't come irr because of the strike.."
 3. Trainmaster A.W.. Barkhurst testified that at 5:30 PM on September 28,. he-was at the Broadway Road entrance to the Canton Shop where he ha&been sent by management to take a photograph of vehicles that were on Con Rai2 property at the time. because of the strikers. He took and exhibited a. photograph identified by him as bearing the license number P287574. Claimant.acknowiedged at the hearing that this was his automobile.. :Sr. Barkhurst's testimony is that the automobile was. blocking the roadway. He asked Claimant to move. it, and the: latter did so.. Very shortly thereafter, Barkhurst took another photograph of Claimant standing at the Broadway Road entrance with four other individuals.
 4. Assistant Division Superintendent C. Guveiyan, Sr. of Youngstown,,- Ohio testified that he also was at this site about Sr30 PM on September 28,. 1978. He identified the photograph of the automobile and of Claimant in corroboration of the testimony of Mr.. Barkhurst. Guveiyan stated that it was he who had instructed Barkhurst to take-the photographs. He also stated, in response to inquiry from Claimant's representative' that the four individuals photographed were not on Carrier property.
 5. Shop Engineer R. Campitella identified Claimant in the group of four individuals put in evidence. He also testified that he saw Claimant at 3:45 PM on September 28 at the main entrance to.
 PUBLIC LAW HOARD 2420 -4- AWARD MO. 10 -

 the Canton Shop, at which time he directed the group, including Cla:imant,. that their jobs were available for work at the Shops , the-doors were open; if they did not report to work, disciplinary action would be taken. The group so addressed,- estimated to be
 -50-or b0'in number,, was standing by a strike sign propped up on.a cement block in the middle of the road giving access from the entranceand.the group was. blocking said road. Among them was Claimant.
 6. As&istant.~Equipment Engineer L.W. Dubois testified essgntialiy to tae same effect as: and in corroboration of the testimony of Mr.. Campitelia, stating. that he heard Campiteiia's instructions to-the-group, Claimant among them..
        T,E Equipment Engineer E.E.- Waggoner testified that he saw

Claimant on September 29s. 1978 at approximately 5:15 PM at the
 Canton Shop main entrance road while Waggoner was there with
 U.S...Marshalls:for the purpose of handing out court-issued restraining
 orders to strikers. -
 8. Claimant was not certain that he could identify himself as.one of those in the group of four in this photograph purportedly taken of him and three-others. His testimony is that he came to work on the 29th,. but because of the "confusion" he encountered at the entrance that he failed to go in. He also stated that he heard "threats'" in the crowd,. but did not know from whom they came.-..: -.-
 The Board concludes that Carrier was justified in deciding that Claimant was an active participant in the illegal and unauthorized striking and picketing on September 28 and 29, 1978 and that
      PUBLIC LAW BOARD 2420 -5- AWARD NO. 10


      his guilt was such in kind and degree as to justify the discharge penalty administered.


    r, . , . _ . . A W A R D

    i:


      .. Claim denied ..


.. LOUIS YAGO , HAI_R~AN S. NEUTRAL

        ED WLi?PELrs Of~ RG_ NIZATION MEMBER


                i


      F~.i.° , -~,¢G··L ~ PSI=

      BL CAMMK F"


                                      DATED V C~·r-Lt4jQ),v 1T

                                      y