PUBLIC LAW HOARD NO. 2420

BROTHERHOOD OF MAINTENANCE OF WAY ZMPLOYFXS

CONSOLIDATED RAIL CORPORATION

DOCKET 'NO. 436

STATEMENT OF CLAIMa

AWARD NO. 28

1. The dismissal of Claimant Wilbur-F. Looby was unfair,

arbitrary, capricious, unreasonable and without just

and sufficient cause.

2. Claimant Loobg should be exonerated of all charges, ra·_stored. to aerviea, without loss of compensation# with seniority and. vacation rights unimpaired, and should enjoy ail those benefits which he previously enjoyed prier to his dismissal.

OPINION OF HGRD a

Claimant eras tried on# found guilty of, and disciplined by

discharge for the following charqasa

"1 - Failure to report for duty on pbur regular assignment at 7aD0 Am, September 28 and 29, 1978.

2 - Engaging, abetting and participating is an unauthorized work stoppage at canton mw Shop Broadway Road Entrance at Sa30 71M and the YMCA-Engine House entrance at 9s14 AM on September 28, 1978, and at the YMCA Engine House at 6900 PM On September 29, 1978,

3 - Influencing follow employees to illegally picket the Company's property and/o! not to perform their assigned duties is that you rQre picketing at the YMCA-Engine House entrance at 99910 AM an September 28, 1978.

4 - Insubordination in that you refused a direct order to return to duty from E. T. Daley# Field Equip. 8ngr, at 8s30 AM on September 28, 1978."

PUBLIC LAW WARD 2420 .2-- AWARD No. 28

?be disciplinary termination eras 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 tye hearings thereon in our previous Award No. I, an well as our opinions an certain procedural and substantive questions raised by organization there as well an here.
Turning to the particular facts of the instant situation, the record shower
1. It is undisputed that Claimant did not perform any work for Carrier nor appear at his usual murk place at Carrier's Canton maintenance of Way Repair Shop on September 28 and 29, 1978, both scheduled work days and whsrs Claimant vas assigned to a regular 7:00 A.M. to 3&30 P.M. tour of duty.
2. in his testimony, Claimant's explanation of his absences ors these days vas that an both mornings he followed his usual plan of access to the plant property, but found strike pickets at the entrance and decided not to go through the.group because of fears for his safety. He further said that be tried entrances other than hi: usual one, but found the blocked too. He also stated, however, that no one told him not to cross the picket lines an either of the days,

3. Testimony was given by field Equipment Engineer E.T, Daley,

.. , _ SIC LAW BOAIW 2420 -3- AWARD No. 28

that he vas at the Broadway Road entrance to the Canton shop property at approximately 8 00 A.M, on September 28, 1978, to carry out management! direction to instruct the strikers to return to work. AS a means of doing so, he informed the group there gathered that they were part.; icipating in an illegal strike and were expected to case back to work, Claimant vas one of-thost in the grump then the statement vas made to them. Mr. Daisy then asicsd these present for their names,

4. Assistant Cost analyst 3. Blazer testified that he vas present at the same place with Mr.. Daier and H. Reedy, another management representative, and corroborated Mr. Dalsy's testimony.

5. Master !mechanic R.3i. Brickley testified that on the morning of September 28, 1978, at sanagsmmnt's direction, he vent to the Broadway Road entrance,to.the plant propertyrs the main gets entrance and the so-called YMCA roadway entrance loading to the Engine Housd of the Shop. Re vas. at the latter entrance at approximately 9=20 A,M. where he saw a vehicle parked in the roadway area*- partially blocking the road, with claimant seated in it at the driver's seat.. While Assistant Superviaor Guveirian (who had accompanied Brickley) conversed with Claimant, Bricklay took a- photograph of them. ':Rte photograph vas put into evidence.

6. Mr. Gwvirian testified to the sass: effect. He stated that Claimant gave his name when asked to by Guveiyian and when asked what he was doing there, said he was just sitting there watching the truck which did not belong to him. Gaveitiae then asked him to take the vehicle off Coo Rail property. Claimant then drove the truck away.

7. Shop Raginser 3t. Campitaila testified that he vas at the YMCA entrance at approximately 600 A.M. on September 29, 1978 and

r h

SIC LAW HOARD 2420 -4- AWARD N0. 28

observed a vehicle there at a point at vhich a strike sign vas displayed. One of tvo son standing there was Claimant.

8. Squipaent Rngineer 8. Waggoner testified that he had accompanied Mr. Caapiteila and vas there atthe sane time and place and also identified Claimant as one of the two individuals there.

9, Claimant testified that he vas in the strikers gathering at about 8x30 A.M, on September 28, 1978. He further stateds

'The way I understand it, a ConRaii supervisor came down then:s and he said you guys are supposed to go back to sork. But I didn't know for sure --.there was a whole bunch of asp maybe fiftsest and I could have mistaken what he said.. h don't know exactly." He further stated that he "stared around" there until 8:30 A.M.

He also admitted that he was seated in the track at the YMCA

entrance at about 9t1C A.M. on Septsmbes.28, 1978 when his picture was
taken, conversing with tin, chaseiyian. 80added, hovever, that he vas
` not blocking any entrance. "h was panted over in the reeds just
vaiting to go to work."

We find the evidence to have furnished legitimate grounds on vhich Carrier vas entitled. to reach the decisiom that Claimant. vas an active participant in the illegal and unauthorized strike of September 28 and September 29, 1978 in such nature and degree as to justify the dismissal penalty imposed.

PUBLIC LAW HOARD 2420 -5- AWARD NO. 28

AWARD

Claim denied,

LOUIS YAG~PA,\ CHAIRMAN NEUTRAL

FR33D WURPSL, .lit. ~ O N. ?iB~IHS&
M.M. BERNER, CARx7ZR PeENgBR '

DATED