s




BROTHERHOOD OF MAINTENANCE. .OF WAY EMPLOYEES

              vs


CONSOLIDATED RAIL CORPORATION'

 DOCKET NO, 425

 STATEMENT. OF CLAIM:

          T. The dismissal of Claimant Douglas L.. Pedan was unfair, arbitrary,. capricious,. unreasonable and without just and sufficient cause.


            Z.. Claimant Fedan should be exonerated of ail 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

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


by discharge for the following charges:

            "I. - Failure to report for duty on your regular assignment at 7:00 A.M. on September 28, and September 29_ 1978.


          2 - Engaging, abetting, and participating in an unauthorized work stoppage at Canton MW Shop at 8:30AM and 8:55AM, an September 28, 1978 and at 4:05PM, 5s30PM 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 you were picketing at Broadway Road Crossing at 8:55AM on September 28, 1978.


        4 - Insubordination in that you refused a direct order to

        return to duty from E,T. Daley Field equipt. Engineer

        at Broadway Road Crossing at 8:30AM on September 28, 1978."

h
Z

 PUBLIC LAW BOARD`2420 -2- AWARD NO. 17

 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.. 1,, as.wel1 as our opinions an 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.r.
 Y. It is; not disputed that Claimant did not appear for or carry on any of his scheduled work on his first trick (7s30 A.M. to 3s30 f.M.) M. W.. Repairman Helper's job at the Canton M. W. Repair Shop,, on September 28 and 29, 1.978..
 2:_ Field Equipment Engineer E.7. Daley testified that when he came to work at the,Canton M.W, Shop on September 28 and 29,. 1978, he saw Claimant among a congregation of strikers either at the Broadway Road entrance or the entrance at Mahoning Road of'the Shop.. In additions Daley then went to the Broadway Road entrance at the direction of management, arriving there at about 8s30 A.M, and, pursuant to his instructions, gave a direct order to the employees assembled there, among whom he recognized Claimant, to return to work or vacate the premises. None, including Claimant, did either.
 PUBLIC LAW BOARD 2420 -3- AWARD h0. 1?

 f. Assistant Cost Analyst J. Blaser testified that he participated with. Mr. Daley in directing the employees to end their unlawful strike,- and they were accompanied also by Equipment Engineer

                  g,. Reedy. He confirmed Mr. Daley's testimony that the latter had 1 given such an order to a group which included Claimant. He further testified that the picketers were blocking the road. entrance to the yard.

4.. Assistant-Division Superintendent C. Guveiyian testified that on September 28,. at approximately 8r45 A.M., he and Master Mechanic R.E.. BrickieY arrived at the Broadway entrance to the Canton facility.. There-he recognized Claimant and told him that he. vas participating in an illegal strike and that if he continued to do so,. "there maybe disciplinary action taken upon himself." His further testimony is. that.he-asked Claimant whether he was picketing and Claimant answered in the affirmative,, and, in response to further questioning,. that he had been ordered to do so by the President of the Union. He further testified that Claimant tried to prevent Guveiyian and Brickley from crossing the picket line to enter the giant. Also,. that at the location where the group, including Claimant, had stationed itself three feet square was on display,.
 5. Master Mechanic Brickley testified to the same general effect, stating that he took a photograph of Claimant on the picket line.. The photograph was put into evidence.
        5. Shop Engineer R. Campitella testified that on September 29,

Y

 PUBLIC LAW BOARD-2420 -4- AWARD NO. 17

 1978 at approximately 5:30 P.M.. he saw Claimant among the picketers congregated at the Broadway Road entrance to the facility,

 7'., Equipment Engineer Waggoner testified that he too saw Claimant mong picketers at, the Broadway Road site about 5:30 P.M. with a strike sign displayed nearby,
 8.. A procedural objection alleging lack of a fair and. impartial hearing is raised by Organization in that (a) cshtwt Claimant was. asked early in thP_ trial whom he wanted to represent him, he named two District Chairmen, Messrs D. Wheeler and S. Sloboda, (b) when: asked which of these-he wished to act as his spokesman, Claimant responded. that he wished both to take part in the interrogation of witnesses. and the. giving of argument.. (c) the hearing officer said that only one active spokesman would be permitted and asked.Claimant so to choose,. (d) Claimant and Representative Sloboda thereupon asked for a- postponement of trial inasmuch as they regarded such procedure as denying Claimant a fair trial,. Mr. Sloboda later amending this to ask for a mistrial:, (e) trial then resumed,, but shortly thereafter, Claimant and both of. his.representatives left and the trial proceeded in their absence..

 We have encountered a, similar procedural situation in our previous Awards and have- commented and ruled on such therein, We make-the same ruling here,. that is, that there has been no showing of failure to make reasonable and proper attempt to afford Claimant a fair and impartial trial, either under the procedural conditions permissibly established by hearing officer and those thereafter
 PUBLIC LAW BOARD 2420 -5· AWARD NO. 17

 created by the unnecessary and voluntary withdrawal of Claimant and

 his representatives.. Accordingly, Ciaimant0s motion that claim be sustained on grounds of procedural violation in trying them is denied.
 As to the merits of claim, we find that Carrier had just and sufficient cause in kind and degree in respect to the charges on which Claimant was tried to conclude thatimposition of discharge discipline was appropriate.,

                  · A W A R D


        Claim. denied..


                                LOUIS YAGO A, CHAIRI`LAN 6. NEUTRAL


ED WURPELs JR~.r ORGANIZATION,MEMBER

 .M.. BERNER, 'eARRIER MEMBER

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