PUBLIC LAW BOARD NO. 2420
AWARD NO. 4
BROTHERHOOD OF MAINTENANCE OF WAY EMPLOYEES
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CONSOLIDATED RAIL CORPORATION
DOCKET NO. 412
STATEMENT OF CLAIM:
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(a.) The Carrier violated the Rules Agreement, effective
- December L6,. 1945,. as amended, particularly
Rules 5-A-1, 5-C-L, 5-E-1 and the Absenteeism
.. Agreement of January 26, 1973,. when it assessed
discipline of dismissal on M.W. Repairman Helper,
Randy L. Hood,-November 22, 1978.
_ (by Claimant.Hood's-record be cleared of the charge
b=ought against him on October 13, 1978.
(c) Claimant Hood 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-L(d), with benefits restored.
OPINION OF BOARD:
Claimant was tried on, found guilty of, and disciplined by
discharge for the following charges:.
"1. - Failure to report far duty on your regular
assignment at 7:00 AM - September 28 and September 29, 197;
02
-Engaging, abetting and participating in an
unauthorized work stoppage at Canton MW Shop
at 4t05 PM and 5:30 PM on September 29, 1973."
PLB 2420 -2- AWARD NO. 4
' The
disciplinary termination was imposed on Claimant because
of his
alleged participation in an illegal and unauthorized strike
at
Carrierrs Canton, Ohio, Maintenance of Way Shop on September 28
and 29, 1978 by members of Localapsa of the Brotherhood of Mainten
ance 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 opinions on certain procedural
and substantive questions raised by Organization there as well
as.
here.
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Turning to the particular facts of the instant situation, the
record shows:
1. The~on-the-property trial held on the subject charges was
marked by a procedural variance Which.Organization contends, constituted a failure to give Claimant a fair and impartial hearing. Early
in the hearing,. the trial officer directed one of the representatives
of the Claimant (not acting as his spokesman) to desist from handing
notes to Claimant while he was being questioned. As the result of
this,, both representatives of Claimant and Claimant left the trial
and it was continued by the trial officer without their presence
or participation. Claimant contends that such action constituted
harassment and improper procedure by trial officer in denial of
a fair and impartial hearing.
So far as can be determined.from the record, it is our opinion
that trial officer made no improper ruling and did not, by his
actions, compel the Claimant or his representatives to leave the
15LB 2420 -3- AWARD NO. 4
hearing., It was their own decision to do so and by so doing, they
deprived themselves of further presence and participation in the
proceedings. Trial officer was entitled to proceed thereafter
in, their absence and receive and act on the evidence made available
to him.
2. Testimony given at trial revealed:
(a)., Claimant did not appear for or perform
his
scheduled
work on September 28 and 29,. 1978 at the Canton MW Repair Shop where
he was employed as a Repairman Helper with a tour of duty of 7':00 AM
to.. 3 s 30 PM. . .
(b)., claimant was present among unauthorized strikers
"milting around"` at Division Road Shop entrance where strike signs
were-on display,. at approximately 4td0 PM. He was observed again,
in the presence of a group of strikers and pickets, at 5:30 PM
at the Broadway Road. entrance to the
Shop
where a strike sign was
on display.
On the basis of the record, we conclude that, in relative
terms,. the participation of and augmentation o£ Claimant in the
picketing activity has not been shown to be such as to. justify a
dismissal penalty;, a suspension without pay for a period of sixty
(-60j' days. would be more equitable.
A W A R D
Claimant shall be reinstated to his former position within
PLB 2420 -4- AWARD NO. 4
thirty (30) days with restitution to. him of earnings lost
from the date following the first. sixty (60) days after his
' discharge until the-date of his. reinstatement.
LOUIS YAGODA; CAIRMAN NEUTRAL
' FfD
WURPEL~ SR..iO,RG~INZATION
MEMBER. _ _.
_ ~. ~'k,,cErtl
2d.M.. BERN ,.
CARRIER ME35BER
. DATED. - s
~~79