BROTHERHOOD OF MAINT83JANCB OF KAY RhiPLOY$S
                vv:.

CONSOLIDATED RAIL CORPORATION
Docket No. 424 ,

 STATeMERr OE CyA IM a

          a) The Carrier violated the Rules Agreement, effective

          December 16, 1945,. an amended, particularly Rules

          5-E=I,, 5-g 1 and the- Absenteeism Agreement of

          January 26, 1973, when it assessed discipline of

          dismissal oe MW Repairman L.H. DePan,.. November 22,


                R


            b) Claimant DsPan*s: record be cleared-of the charges brought against hia· on: October 13,. 1978.:


            cr Claimant DePawbe-restored to servicr with Seniority and all other rights: unimpaired and be,compensated for wage- loss.susta.ined in accordance with the proris:ions· of.Rules 6-A-1(d). with benefits. restored.


OPINION OF'BOARD s
Claimant was tried ono. found guilty of, and disciplined by discharge for the following chargers

            1. Failure to report for duty on your regular assignment at 7sOO.AM,. September 28 and 29,. 1978.


            2. Engaging, abetting and participating in ass unauthorized work stoppage at Canton MW Shop at 8r30 AM and 3s45 PM oar September 28, 1978 and at lis45 AM an September 29, 1978 ..

PLB'2420 .2- AWARD NO. 16

            3. Influencing fellow employees to illegally picket the Company·s property and/or not to perform their assigned duties in that you caused a work stoppage on Surfacing Gangs ST 241 and ST 242 at Mile Post 32..5 on.the Bayard Branch 3ast of Salinesviiie, Ohio, at lls45 AM on September 29, 1978.


            4_ Insubordination in that you refused tvo direct orders. to retnrwto dutyl frowFrank.Buceeri, Shop Engineer, at 8:30 AM on September 28, 1978 and R, Caepite3.la, Shop Engineer, at 3145 PM on September 28, 1978.


The diaciplinary termination war imposed on Claimant'because of his: alleged participation- in an. illegal and unauthorized strike at Carriers Canton, Ohio, maintenance of tray Shop on September 28 and 29-,.. 1978,. by aesberw-of'LocaL 3050: of' he Brotherhood of Maintenance of Way Employees aaployed:thexe,

 We have, described the-general circumstances of this strike and picketing situation revealed at the hear.ingn thereon in our previous:Award No. 1_ as11CT.1 as oar opinion 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 showss

 1. It ix not disputed that Claimant failed to appear for and perform his.scheduled work ass first trick Repairman at the Canton Maintenance of Way Shoo on September 28 and 29,. i9?8. His testimony is that he appeared at his customary entrance cats nn each of these
 PLB 2420 -3- AWARD NO. 16

 days in time to. go to work but did not because he encountered there picketers and a strike sign, "and 2 wasn't going to cross the picket Line."' His further testimony is that he attempted to phone in at three different times on:the,28th,. but each time the line was busy. He did not attempt to phone is on the-29th..

 2. Shop Engineer F. Bucceri testified that on September 28, 1978, at about 8s30 AM, he addressed an order to a group. of strikers at the main entrance of Shop, Claimant among then,. to come back to worir. Claimant did not obey arid order.. According to Mr. Bucceri, at the-point at which these individuals vere·assembled there was an "Ore Strike'" sign: near them.. Mr. Bacceri's recall-of his instructions to thergroup was: to thereffect that they should report to work, as. it was an illegal strike and: action would: be, taken: if they did not.

 3., The·testisony of Mr.. Buccari vas supported by Assistant Equipment Engineer H.T'. Reedy,: who. states= that he vas also then present. Reedy further testifie that the-roadway at the entrance vas. partially blocked by the picketing group.

 4. Shop Engineer R. Campitella testified that he saw Claimant at about 3'45 PM on September 28 at tae main entrance .road among a group of strikers with a strike sign in the middle of the road "and. men milling around on the streets"" Mr. Campitella further states that he told the group,. including claimant. thar t'zeir posit.ons
 'PLB 2420 -4- AWARD NO. 16

 or jobs were 'dorm there"; the doors were open; if they did.not report to duty, disciplinary action would be taken..

 5. Assistant Equipment Engineer DuBois testified that he was: also present at.3s45 PM on Sept,eber 28 at the main entrance, in company with Mr. Caapitelia, and heard him make the statements testified to by him. He recognized Claimant as walking around in the group
 with the, others. who "had~therhole area· blocked off- xhils a strike sign was attached txY a utility pole: nearby and another stuck in a conCrete-block at then site.

 6.. Testimony was..also given by Supervisor-Production G.A,. Bennett that oer. September 2g',. 147f,. while he vas- supervising two track gangs doing razing: work at Bayard: Branch, in tho vicinity of Salinesville, Ohio, about 28 or 29' milew froar Canton,,. hg learned of a- van that had come on Company- property at that site,: with four men in it. At about
 11%45 AM, he~ proceeded. to- the" van which was about a half-mile away, near a place at vhickz one. of thew razing gangs vas at work.. He- recognized one-of its- occupants - an employee named F. Safreed, a Repairman at Alliance,. and. asked him that he vas doing there.. According to Bennett,. Safreed informed him-that Conrail was-on-strike and that those in the van were going around.to atop work: to spread the strike. As part of this mission, they verergoing to certain other locations "to get ail the trains stopped to make the strike a. success." Safreed then introduced the other occupants of the van to Bennett. At the trial, Bennett
 PLH-2420 , -5- AWARD NO. 16

 identified Claimant as the driver of the. van and one of those to whom he had been introduced.

          According to Bennett's fnsther testimony, after those in

the van talked to members of one of the track crews of the strike,
 seven to nine men left their sachines and "started hollering and
 screaming that they were on strike and weren't going to. work, wanted
 to go home, things of that nature."' Mr. Sennett's testimony is that
 he heard Claimant make a statement to the crew members that the visitors
 were~on strike and that they wanted the work to stop here.: in confir
 mation-or statements mad& to others by Mr. SafreeZ, spokesman for those
 in the, van. Bennett then instructed. the, employees-to put their machines
 in the siding,. ending their assignment..
T,. Mr.. Bonnett·sr testiaonr was: corroborated fey Assistant Track Supervisor R-.W. pawneli_ who stated-he was, present with Bennett at that timer and placa-,

 f, Organization presented as ar vitnesa~S. Risaiiti, Repairman Painter at Canton and President of the Union at the time of these events. Mr. Risaliti had been identified in previous testimony as. having been with Claimant at the·Salinesville, Ohio Ha yard Branch, Mile Post 32.5 at approximately 11x45 AM,- on September 29, 1978, He confirmed in his. testimony that he was in the van with Claimant at that tine and place. He stated that he had gone there with qtr. Safreed to show him the ray and ha4 asked Claimant for use of ·7'ia:manr·s van
 pf8-2420 .6- AWARD NO. 16

 because it had sufficient seating accommodations for those going. His purpose in making this. trip was. because "we thought that some of the men in my Local were supposedly going to and might have started acne kind of trouble."

 When the van got to Salinesville,, the men encountered Mr. Bennett, who was introduced to Mr.. Risaliti by Mr. Safreed, who told Bennett that he had cams there because he had heard that some of the strikers "might have been down here' and that he did not want them "involved in any kind of work stoppage in any other areas...that they could get in trouble- if they, did.."'

 According to lrtr~ Risalitirs:further testiaonyy Mr. Bennett responded: that if them might·.be<troubie.. he thought that it would be beat for his: ta. shut doww his=gang: and pull theca back to Salinesville. The group then left,, havinq bests there S to 10. minutes. When the group left, the men and machines were still working.. Mr. Risaliti stated that hehad said nothing to thermen working there-_ either advising them, to join the strikera.or cautioning7thea not to join them. He recalled that Claimant said something while the conversation was going on between him and Mr. Bennett, but couldn't make out what it was because there was so much noise going on..

 The Board .concludes that Carrier had :imnle cr-und= odeciding that the more credible and convincing evid~::..e · .,wo ~' ,·--·.."' .
 'PL8 2420 -7· AWARD NO. 16

 guilt was such in kind and degree as to the charges on which tried

 that the penalty of dismissal was a valid and entitled recourse of Carrier in reaction thereto..

                          A W A R D


          Claim denied.


                              LOUIS YA DA CHAIRMAN S NEUTRAL


F D WURPEL, JR', NIZATION MEMBER
N. M. BERNE , CARRIER MEMBER

                                  DATED 7 7