' PUBLIC LAW HOARD NO. 2420



BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYS

 VBr .
 CONSOLIDATED RAIL CORPORATION

 Docket No, 426.

 STATEMENT OF CLAIMs

          a) The Carrier violated the Rules Agreement, effective

          December 16,. 1945,. as. amended, particularly Rules

          5-A-1,. 5-C-1, 5-$-i and the Absenteeism Agreement

          of January 26,, 1973,. when it assessed discipline of

          dismissal on MV Repairman William J. Perkins..

          November 22,. 1978.


            b) Claimant Perkinsg` record be cleared of the-charge b=ought aga.in:t: him-- osr October 12, 1978.


            c) CIa<isoant Perkins~ be~ restored to service with seniority and-. all other righter unimpaired and be compensated for wager loss sustained in accordance with the previsions o:E Rule 6-A-1(d),, ribs: benefits teetered.


OPINION OF HOARDS .

 Claimant we* tried'on,. found guilty of, and disciplined by dismissal for the following charges&

            L, Failure to report for duty on your regular assignment at 300 PM an September 28 and 29,. 1978..


            2r Engaging,, abetting and. participating in an unauthorized work stoppage at Canton MW Shop at 3x45 PM and 1ix25 PM on September 26, 1978 and 2x00 AM on September 29, :978.


            3. Insubordination in that you refused a dar~ct order to retort to duty from R. C: .3mcWeli.~, P`-r, ~_rqineer2nd Tri-, at ?:45 PM on Senr~Ti,-r _. , 70'1t.

P Li 2420 -2~ AWARD NO. 18

 The disciplinary termination was imposed on Claimant because of his alleged participation in an illegal and unauthorized strike at Carrier"s Canton,. Ohio, Msintenanc::of Way Shop on September 28 and 29, 1978, by aeabera of Local 3050 of the Brotherhood of Maintenance of Way Employees employed there., .

 We- have described the general circusataaces. of this strike and picketing situation revealed: at the hearings thereon in out previous Award No.. 1,. as; veil. as: our opinion on certain procedural and substantive questions raised by Organization there as veil as here..
Turning to the particular facts of the- instant situation,. thwrecord showas
T.. As: im similar circumstancsa described in. previous. Awards,. Claimant and hi:rrepresentatives left the trial soon after the outset of the proceedings: because trial. officer ruled that only one of the two individuala:designated by Claimant aa:his.representativea at the trial (both District Chairmen) act as his spokesasn and interrogator of witnesses. The trial then proceeded is the absence of Claimant or repre sentation of him,.

 As. in the previous such instances. we reject Organization's contention that these are-grounds for declaring that claimant was denied a fair and impartial hearing and that we should dismiss or deny the charges on those procedural grounds.
 ,

 LB 2429 -3- AWARD NO. 18

 2. Testimony revealed that Claimant failed to.appear for or perform his regularly scheduled work on the 3:30 PM to Midnight shift at the-Canton maintenancsaat'Way Shop on September 28 and 29,. 1978..

 3.. Testimony by Bquipsret Zngineer E.E. Waggoner identified the van of Claimant as being present among picketers and strikers at thr `YMCA entrances to the. Shop 01, September 28, 1978, at lls20 PM, where strike signs.:ere on display.

 4,. Assistant Bquipment Inqinaer Dufiwtestified that on September 28',.1978',. vhilr accompanied by Shop- Engineer R.- Campitella,, he say. Claimant at about. 3t4!Y PM, among a, group. of` pickets at the main drivevar to: the· Shopk and: heard Mr.. Campitella tell. this group that this van-an unauthorised. strike,. that the doors-were open and ready for work and that if' the men did not: report,. drastic action would be, taken.. Neither Claimant nor-the·'others present complied with the order..

          S.. This testimony vas, corroboratied by Mr.. Campitelia.


8r. Equipment Xugineer H.H.. Reeder testified that he saw Claimant among: a·group:performing,picket duty at approximately 2=1.5 AM.. September 29, 1978, at the YMCA entrance to the Shop.

          We conclude that Carrier vas justified in deciding that


t
 Ift8 2420'

 AWARD 310. 18

 claimant VMS guilty-in degree and kind of the charges on xhich tried so as to rarrant the i*P"itica of the discharge-penalty.

 claiw denied.

                  vilzl~ MEMBER

FRED WURPE . JR.r iORG
N.M.. BERNER* CARRIER. MME

 LOUIS YAGODA y HAIJRKAN 3. NEUTRAL.