. PtsLIC LAW BOARD No. 2420

' AWARD NO. 23

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEE

v4e

CONSOLIDATED RAIL. CORPORATION

Docket No. 431

STATEMENT OF CLAIMS

a) The carrier violated the Rules Agreement, effective December 16, 1945, as amended, particularly Rules 5-A-I, 5-C-1, 5-B-1 and the Absenteeism Agreement of January 26, 1973, when it assessed discipline of dismissal on Repairman Helper D.N. Grimm.

b) Claimant Grimm·s record be cleared of the charges brought against him on October 13, 7978.

c) Claimant Grimm be restored to service with seniority and all other rights unimpaired and be compensated for wage loss sustained in accordance with the provisions of Rule 6-A-I(d), with benefits restored.

OPINION OF HOARDS

Claimant vas tried on, found guilty of, and disciplined by discharge for the following charges:

1. Failure to report for duty on your regular assignment at 7100 AM on September 28 and 29, 1978.

2, Engaging, abetting and participating in an unauthorised work stoppage at Canton MW Shop at 8:30 AM, 3145 PM, 41lO PM on September 28 and 8100 AM on September 29, 1978.

3, Insubordination in that you refused three direct orders to return to duty; from E.T. Daley, Field Equipment Engineer,. at 8:30 AM; Septamcer 28, and

PLB 2420 -2- AWARD NO. 23

E.E. Waggoner, Equipsisnt Engineer, at 3x45 PM and 4:10 PM. September 28, 1978.

The disciplinary termination vas 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 well as our 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 is undisputed that Clafmant failed to appear for work on September 28 and 29, 1,978, at the Canton MW Repair Shop where he vas regularly assigned as a Repairman Helper on schedule of 7100 Am to 3x30 PM.

2. Claimant's explanation for not vorkina on September 28 vas that when he got to the main entrance roadway of the Shop at his usual time, he saw '°a bunch of guys milling around, talking about not going in to work that morning. I didn't v.int to say 1'm-going to go anead, oec:ause you ne«!r know." He states that -!·~, rra,, il~o told ay
PL82420 -3- AWARD No. 23

individuals there that there was a strike in progress. He further states that he saw no strike signs and that he was afraid that if he reported for duty of "somebody trying to beat se up or hurt my wife, my kids, or do damage to a%y property." He was unable to name any of those present, estimated by him to be approximately 100, or which of theca directed him not to go to work.

As for September 29, he again appeared ready to go to work and again encountered a large group of strikers at the entrance to the Shop roadway, but not a3 many as on the previous morning.

Claimant further stated 'that he stayed with the congregated group on September 28 at the Shop entrance from about 6x30 AM to about 4:00 PM, but stayed "across the street." He gave as his purpose for remaining on that site for so long a period to "see if 'we were going back to work." On September 29 he stayed with the assemblage about 5 hours.

3. Field dquipment Engineer E. T: Daley testified that he saw Cl.simant among tde strikers and picketers at the Broadway Road entrance to the Shoo at acout 8%30 AM on September 28. He told the group, including Claimant, that they were on an illeqai strike ana that they should either come to work or "vacate the prearis:as." tie was unable to say scecificatlv at the trial that: rnesk~. 1nd viduals were on ^omosny nrocer~ y, but stated that "they ~.e:? . ..~a:-,
Pxee 2420 -4- AWARD No: 23

4. Assistant Cost Analyst J. Blaser testified that at about 8s30 AM he observed six to eight strikers stationed at the Broadway Road entrance to the Canton Shop, among them Claimant, and heard Mr. Daley order the group, including Claimant, to return to duty,

5. Equipment Engineer E,E. Waggoner testified that at aooroximately 3:45 PM and at approximately 4t10 PM on September 28 he saw Claimant among a group of picketers at the Broadway entrance to the Canton MW Shop where a strika sign was fastened to an electric pole.

6. Equipment Engineer R,E; Gray testified to the same
general effect as Mr. Waggoner., adding that the autos of those in
the group were blocking access to the Broadway Road, one of them
belonging to Claimant. But they moved them when asked to do so oy
a law officer, Ffe furl~her stated that where the group was congre
gated, there was a large strike sign attached to the side of a pick
up truck. He further testified that at 41:10 PM he heard Mr. Waggoner
tell the group, Claimant among them, that this was an illegal strike
and that they should return to work or could be sub ;Nct to d.iscipll-ne.
None obeyed.

We find'Car-:er acted within its entitled and jusrifiaole authority and on a corvincina showinc of cv:lt in .-:pa~. -0 tae
AWARD NO. 23

charges made in imposing the disciplinary dismissal on Claimant

for the circumstances and activiti*s revealed.

A W A R D

Claim denied.

FRED WURP£L, JR./ ORf-'TION MEMBER

N .~ 1 ,/ CARRIER MRMBER

LOUIS YAGa A, HAIRMAN S NEUTRAL