J e



BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
 vs

 CONSOLIDATED RAIL CORPORATION
                  i


DOCKET NO. 422

 STATEMENT OF CLAIM:
            L.. The dismissal of Claimant Joel, P. Vincent was arbitrary and` capricious, unreasonable and without just and sufficient cause..


2.. Claimant Vincent. be exonerated of all charges and re
 stored to service,, with Peniority, vacation rights and
 compensation,, and should enjoy all those benefits that
 he previously- enjoyed prior to his dismissal.
 OPINION' OF BOARD:

            Claimant was tried onr found guilty of, and disciplined by


diacIiarge for the following charges:

            °1 - Failure to ren_ort for duty, on your regular assignment at 7:00 A.M., September 2 , and September 29, 1 78,.


            2 - Engaging,, abetting and participating in an unauthorized work. stoppage at Canton, MW Shop at 8:00 A.M., 4:05 P.M.. and 5:30 P.M. on September 29, 1978."


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.
 PUBLIC LAW BOARD" 2420 -2- AWARD NO. 14

 We have described the general circumstances of this strike and-picketing situation revealed at the hearings thereon in our pre-. vious Award No.. 1,. 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:
 1. It is not-disputed that Claimant failed to appear for and perform his scheduled work as a first trick M.W.. Repairman at the Canton Maintenance of Way Shop nn September 28 and 29,. 1978.
 Z,. Cost Analyst D. Masucci testified that Claimant was recognized by him as one o£ four strikers and picketers congregated at the main entrance-of the Shop at about 8:00 A.M, on September 29,- 1978..
 3.. Shop Engineer R. Campitella testified that he recognized Claimant in the company of strikers and picketers at the entrance to the plant at approximately 4r05 P.M. on September 29, 1978..
 4'.. Assistant Equipment Engineer L. Dubois testified to the same effect as Mr. Campitella.
 5.` Equipment Engineer E. Waggoner testified that at approximately 5530 P.M. on the same date he saw Claimant among a group of striking employees at the Broadway entrance to the Shop at a place where "On Strike" picket signs were on display.
 b. However, the foregoing testimony was, for the most part, developed at the trial held on October 24, 1978, while Claimant and his representative were absent from the proceedings. The trial record shows that this came about, as follows:
 PUBLIC LAW BOARD 2420 -3- AWARD h0. 14

 a.,. Claimant was asked by trial officer at the outset of hearing whether and by whom he was represented, in accordance with his rights thereto. He responded that he was represented by Mr. M, W, Phillips District Chairman, although Mr. D. H, Wheeler, another District Chairman, was identified by him as an additional representative,
 b. Claimant was. then asked which of these two was to be his spokesman and he responded,"Mr.. Phillips."
 c. At this point trial officer notified Mr, Wheeler that he was not to "take-part or participation in this trial in any manner. Your participation will be-strictly as an observer."
 d'.. Mr.. Phillips thereupon protested that such denial was in violation of Rule G~-250 and that he therefore took exception to the-ruling.
 e-.. .After a continued interchange between trial officer and Mr:. Phillips in which they reiterated these statements, Mr. Phillips announced that "the employee and myself request to declare this a mistrial and release ourselves from the proceedings."
 f. Trial officer then proceeded to question Claimant, during' which questioning Claimant acknowledged that he had failed to report
 to his regular assignment at the Canton Shop on September 28 and 29, *because there was a.strike on" denoted by pickets and a strike sign. He denied,,however,, that he had "participated, engaged in or abetted" the strike or was a member of the picket line.
 PUBLIC LAW BOARD"-2420 -4- AWARD NO. 14

 g, At this point Mr. Phillips advised Claimant that his Union had provided him with two representatives, subject to the terms of the Agreement and asked him whether he desired representation by both He reported that he did,
 h,. Proceedings continued while Claimant was asked by District Chairman Phillips whether he had arrived at the entrance to the Canton Shop on September 28 and 29,. 1978 ready to work. He answered in the affirmative. He was then asked by Mr.. Phillips whylhe had not worked on those days.. Claimant responded that "there was. a sign up." He then responded affirmatively to. a: question from Mr. Phillips asking whether, to the-best of Claimant"s knowledge, all employees of the Shop scheduled to work 7-:O0 A. M-. to 3:30 P.M. were obeying such sign by not reporting for work,. Claimant also denied that he had engaged in,, abetted or participated in any unauthorized work stoppage at Canton at 8s00 A.M~_ 4:05 P.lf~ and 5:30 P.M. on September 29, 1978..
 i.. Mr.. Phillips then announced that he had no further questions. but was turning the questioning over to District Chairman D.H.Wheeler,Jr.
 j. Trial officer then refused to allow Mr.. Wheeler to act as a second questioner, inviting Mr. Phillips to continue the questioning, if he wished..
 K. Mr. Phillips then announced that, because of the actions of trial officer, ^I therefore declare this trial as a mistrial, unfair and partial, and I, myself accompanied by the employee refuse to answer any questions."
 PUBLIC LAW BOARD'2420 -5- AWARD NO. 14

 T.. After the trial officer.then addressed a question to Claimant but before an answer was, given, Mr. Phiil.ips announced that he vas calling a. short recess to confer with. Claimant.
 m. After the recess was ended and hearing officer repeated his earlier questionito Claimant, the latter announceds "I refuse to answer any more questions for this is not a fair trial because I can't .choose my own legal representation.'" Thereupon Claimant left the trial room in company with Messrs Phillips and Wheeler,. but the trial was. resumed thereafter in- their absence.
 Organization takes. the position that the actions-of the trial officer were in denial of representation of Claimant by a "duly accredited representative" as providedrfor in Rule 5-C-1(b) in the Agreement between the~parties and,: accordingly,. Claimant was denied a "fair and impartially trial.
 Rule- 5-C-T(b) provides that Claimant,. "If he desires to be represented at such trial ... may be represented by the duly accredited representative" ... as defined in Rule 7-H-1. Rule 7-H-i provides: "The term 'duly accredited representative' as used in this Agreement. shall be understood to mean the District Chairman or System officer of the organization signatory hereto."
 In the hearing involved here, Claimant was asked by whom he was represented.. He named two District Chairmen, but then stated that one of them=-Mr. Phillips--would be his spokesman. Trial officer sought to do no more than hold him to his choice, one that complies with the pertinent Rules. In refusing additional simultaneous
 . . d

 PUBLIC LAW BOARD 2420 -6~ AWARD NO.. 14

 active involvement by a second District Chairman,. trial officer acted within the rules and within his procedural rights.for assuring an orderly, expeditious and fair process..
 Accordingly, we deny and dismiss Organization's procedural objection in this respect..
 As to the merits of the claim, ire find Carrier justified in deciding that Claimant was- guilty of the subject charges to the extent and. kind justifying imposition on him. of the discharge penalty.

                        A. V A R D


        Claim denied..


                                                -b


                                  LOUIS YAGO , HAIPNIAN &. NEUTRAL


FRED WURPEL,. JR., ,pRrANIZATION MSMBER

 N.M. BERNFER, RRIER MEMBER
 DATED