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BOAFM No. 2420

- AWARD NO. 30

BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYES rs. CONSOLIDATED RAIL CORPORATION Docket No. 438 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-E-1 and the Absenteeism Agreement of January 26, 1973, when it assessed discipline of dismissal on ?!1d Repairman Helper, Daniel A. Dechiara. November 22, 1978.

b) claimant Defhiara's record be cleared of the charges brought against him on October 13, 1978.

c) Claimant DeChiara be rsstorad to service with seniority and ail- other rights unimpaired and be compensated for rage loss sustained in accordance with the provisions; of Rule 6-A-1(d). with benefits restored.-

OPINION OF BOARDS Claimant was tried on, found guilty of, and disciplined by discharge for the following charges:

1. Failure to report for duty on ~rour re ular assignment at 7sOOAM on September 28 and 29, 197.

2. Engaging, abetting and participating in an unauthorized work stoppage at Canton MW Shop at 8t30AM and 3t45PM on September 28, 1978, and at 4s05PM

and 5t30PN on

September 29, 1978.

PLB 2420 -2- AWARD NO. 30

3. Insubordination in that you refused taro direct orders to return to duty; from E.T. Daley , Field Engineer, at 8j30AM on September 28, 1978 and fromR. Carpitella, Shop Engineer, at 3t45PM on September 29, 1978.

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 Lbcal 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 shove= 1.. It is undisputed that Claimant absented himself from work on September 28 and 29, 1978 at the Canton maintenance of way Shop where he was scheduled to work on those days on his usual 7so0AM to 3t30PM tour of duty. 2. Claimant's explanation at trial vas that he "tried to come to work, but there vas a strike sign and people standing around and I wasn't about to cross it." 'PLB 2420 -3- AWARD No. 30

3. Carrier witnesses testified:

a) Claimant. was seen at the Broadway Road Crossing entrance to the plant at 8z30AM on September 28, was asked his name, and identified himself. b) At that time, an order was issued to the group there gathered, including Claimant, by Field Engineer E.T, Daley to return to work. None obeyed. c) where the group was congregated there was a strike sign on display. d.) Claimant was again seen with such group, again with a strike sign on display, at the main entrance (Division Road) of the Shop at approximately 3:45PM on September 28. e) At that time, Shop Engineer R. Campitelia informed the group, including Claimant, that the Shop was open, the employees were to report to work and. if they did not, disciplinary action would be taken. None obeyed. f) Claimant was also observed with a group of picketers at 3:45PM on September 28 at the main entrance and at 5:30PM on Seoteaber 29 at the Broadway Road entrance, each time he was one of those "milling around and a strike sign was on display where the group was located.
PLS 2420 -4- AWARD NO. 30 4. Claimant admits that he vas present among the strikers on September 28, 1978, at approximately 8z30AM at the Broadway Road entrance. He "stated around for a while, vent home, came back, just to see what vas going on." He came back "early in the afternoon" and sat in his car on the parking lot across the street from the :ntrance. As to September 29, Claimant testified that he -might have been around" the Shop entrance at `acme time around" the 4z05PM time mentioned by Carrier witnesses, As to the order testified to as having been given by Mr. Daley at approximately 8t30AM to the group gathered at the Broadway Road entrance on September 28, Claimant atateds "I did not hear him directly tell me to go to work: I just seen a bunch of people in white hats talking, but I didn°t hear anything - exactly what vas happening. So many people around and stuff." Concerning Mr. Campitella°s alleged order to a group of which he vas a cart on September '9, 1978 at 3t45PM, Claimant testified that he vas at the site identified, but "I did not hear him give me no direct order, and I don't see why he should after 3:30." He did say, however, that he saw Mr. Caupitella walking around and writing down names. PL8 2420 -5- AWARD NO. 30 We conclude that Carrier vas justified in finding Claimant to have been more than a merely curious and innocent bystander, as alleged by Claimant, but. instead, a participant in picketing activities. on the whole record, se find Carrier waajustified in deciding that Claimant was guilty in degree and kind of the charges on which he was tried as to justify the termination penalty impoaed on him.

A W A R D

Claim denied. LOUIS YAD , CHAIRI4AN S NELTTRAL FRE WURPEL, JR.,~R ATION MBMBER N.. . 'BERNER! CARRIER MEMBER DATE !!/ ~/D