PUBLIC LAW BOARD NO. 2420
AWARD NO. 12
BROTHERHOOD OF MAINTENANCE. OF WAY EMPLOYEES
and
CONSOLIDATED RAIL. CORPORATION
DOCKET N0. 420
STATEMENT OF
Cr~NIM:
1.. The- dismissal of Claimant Lowell G. Idea was-unfair,
arbitrary, capricious, unreasonable and without
just and sufficient cause.
2.. Claimant Iden should be exonerated of all charges,.
restored to service,. without loss of compensation,
with seniority and.. vacation rights unimpaired, and
should enjoy all, those benefits which he previously
enjoyed prior to his dismissal.
OPINION OF BOARDS
Cia-imant was tried on, found guilty of, and disciplined by
discharge for the following charges:
"1· Failure to report for duty on your regular assignment at 3s30 PM on September 28, and 29, 1978.
2;· Engaging, abetting and participating in an unauthorized work stoppage at Canton MW Shop at 3:45 PM,
5s45 PM and 1is20 PM on September 28,. 1978.
3- Influencing fellow employees to illegally picket the
Company·s property and/or not to perform their
assigned duties in that you were picketing at
Service Packaging Entrance at Ss45 PM ) on September 28, 1978,
4· Insubordination in that you refused a direct order, to
return to duty from R. Campitella, Shop Engineer at
3s45 PM on September 28, 1978.'·
PUBLIC LAW BOARD 2420 -2- AWARD NO.. 12
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 emoioyed there.
s
We have described the general circumstances of this strike
and picketing situation
revealed;at the,hearings thereon in our pre
vious Award No.
lr
as well
as our
opinions: on certain procedural and
substantive questions-raised by Organization there as well as here..
Turning. to the particular facts of the instant situation,.
the-record shows s.
I. Claimants a- regular second trick employee of the Canton
maintenance of Way Shop, did not enter the Shop or carry on his
regular work
on
September 2S.and 29,. 1978
2. Shop Engineer Campitella testified that on September 28,
7978 at about 3:45 P,M.. he observed Claimant
joining
with others
in "milling
around"'at the Broadway Road entrance to the
Shop
at
a place where there was an "On Strike" sign on display.
3.. Mr.. Campitella's further testimony is that
he
informed
the group, of which Claimant was a member,. that the Shop was open
and they should come to their place of employment,. that if they did
not,
disciplinary action would be taken. None of the members of
the group complied with this instruction, including Claimant.
4. Assistant Equipment Engineer R. E. Gray testified that
he observed Claimant among the picketers and strikers on September 28,
1978 at 11:20 P.M.
at
the so-called Service Packaging Entrance to
the Shop, at a point near where there was displayed a strike sign
PUBLIC IAW BOARD '.2420 -3- AWARD NO. 12
on the back end of a pickup truck,
5. The testimony of Gray is supported by testimony to the
same effect by Equipment Engineer E,. E.. Waggoner,
6. Trainmaster K. Barkhurst testified that he and Assistant.
Division Superintendent Guveiyian observed Claimant standing with
another at the Service Packaging Entrance to the Shop at a pickup
truck with a strike sign on it, at about 5:45
p.m.
on September 28, 1978..
T.. Mr. Guveiyian testified to the same general. effect and also
stated that he asked. these two individuals whether or not they were
going to permit employees fbelongingto another work group and organization) to·enter the>property to receive their paychecks and that
Claimant informed him that they would not prevent said individuals
frommgoing on the property to get their paychecks,.
8. In.hisown testimony,. Claimant admitted that on September 28,
1.978 he was at the Division Road entrance to the Canton Shop from
about 3:20 P.M. to about 4:00 P.M. He-explained that he had come
to work prepared to assume his duties but saw that "980" of his coworkers were congregated at this-'gate and "milling around" either
"trying to come to work or hoping that the pickets would come down
so that we could go to work." He further admitted that he was also
present at picketing congregations at approximately 5:45 P.M. and
11:20 P.M. that day at points contiguous to Shop grounds, but denied
that he was picketing. His explanation is that "Everybody was in
chaos# and they were saying that we need people here, we need people
there; and two guys from N S W the employees with whom the strike
PUBLIC LAW BOARD 2420
-4- AWARD N0.
12
was. in symoathv said that things could happen if we didn't
help participate." He denied,. however, that he "influenced"
others to picket..
9, As for Mi~. Campitella's alleged order to him and
the rest of the group,. Claimant stated: "I would not call it
an order.."
10.. In respect to his not working on September 29th,
Claimant stated that he:again encountered the pickets that
morning. He then went halfway home-and called in and reported
that the pickets were- still up and he could not come in, inasmuch as. he -feared for my life..'
We conclude that, although not shown to be an active
participant in the picketing on the second day of the strike,.
Claimant's actives roving involvement on the first day and his
having been one-of those who was instructed to terminate this
unauthorized strike and failed to return to work constitute a
showing of guilt on the charges in degree and kind as to justify
the imposition of a disciplinary suspension for the long period
since Claimants discharge, rather than the termination penalty
administered.
PUBLIC LAW BOARD 2420 -5- AWARD NO. 12
A W A R D
Claimant shall be reinstated to his former position
within thirty (30) days without restitution for earnings lost.
LOUIS YAGODA, CHAIR~`!AN S NEUTRAL
Z
FRED WURPEL,. JR:.r ORGANIZATION MEMBER
v
N.M. BERNE ARRIER MEMBER
DATED
I
LltR/ -z
T ~.