. ~tr
Award.
No. 2
Case Nos. 1-71, 2-71 and 3-71
PUBLIC LAW HOARD N0.
877
P
ARTIES Brotherhood of Locomotive Engineers ,
- W
DISPUTE: and
^l,icaxo River arid Indiana Railroad Corrpany'
_ ., r.
:_.___. _ _ _ .~;, ;lalchuna
,. 'larch
12,
"~ 71 i'or 8 hears pay
~`Vr;~h 1,,;, . ."1, .fur h,urs ,gay
l':.-rch i.' . 1,: 71, ?or ?', hour v and
5^
mlnutC
a?arch 1~, i··71, for 11 hour, and
20 minutes pay
Ms
arch 17,
1971,
for 11 hours a^d
minutes pay
'·`arrch
18,
1971, for
13 hours
and _
55 ni::utec nay
Z'
iinrc h
10
, 1971 , for
8
hours pay
r=
^~
MEM
r4arch 21, 1911, for 1.1 hours and
a C fl
4; 1:dnutes pay
,March 22, 171, for 13 hours and
:~ 40 minutes pay
- ^~=ru
,'%Iar--h 23, 1971, for 12 hours and
o
40 March 24, 1971, formi12nuhtoeusrpsay and
i-' 20 minutes pay
March 25, 1971, fDr 12 houzs and
20 minutes pay
March 26,
,?71,
for 11 hours pay
March
28, 1'-171,
for
8
hours pay
Slarch
29, 1971,
for 9 hours pay
starch 302 1971, for
73
hours and
55
::;mutes pay
March jl, 1971, for
8
hours pay
Cnse No.
2-71
- Exhibit
'1F"
Fireman T. E. Kelley; March 12,
1971,
for
8
hours ray
March
13,
1971, for 9 hours and
1.5
minutes pay
March 15, 1971, for
8
hours pay
March 16, 1971, for 8 hours nay
at engineers rate
March 17, 1971, for
8
hours pay
at engineers rate
March 18, 15171, for 13 hours and
55
minutes pay
at engineers rate
March 19, 1971, for
8
hours pay
March 20, 1971, for 11 hours pay
y.
r.
,~ x.-
$ _ t ~,' ~.
k _ . .,,~ y
.;'
7 5
· . . Award No: .2
-·s:.':
:.
, Case Nos. 1-71, 2-71 and--3-71 ;__:!~
':. 2 ..
. . . March 22, 1971, for
8
hours pay _
- at engineers rate _,:;:.
March 23 , 1971, for
8
hours pay _`'
March 24, 1971, for
8
hours pay
at engineers rate
March 25, 1971, for
8
hours pay ;_ -
March 26, 1971, for 11 hours and
30 minutes pay at
engineers rate '.,
March 27, 1971, for 10 hours and
40 minutes pay
March 29, 1971,
8
hours pay at
engineers rate
March 30, 1971, for 8 hours pay
March 31, 1971, for 8 hours pay
Case No. 3-71 - Exhibit "G"
Engineer Balchunas
arid Fireman Kelley: March 11, 1971, for
8
hours pay each
FINDINGS: By reason of the Agreement dated January 13, 1972, and upon
the whole record and all the evidence, Public Law Board No. 877
finds that the parties herein are carrier and employe within the meaning of the
Railway Labor Act., as amended, and that it has jurisdiction.
On March 11, 1971, Claimants were Engineer and Fireman on Crew
No. 29 working in the so-called State Line-West Side District in Chicago,
Illinois. For about a month prior to and on that date the Continental Can
Company plant wan strikebound. At about 3:30 P.M. on that date the train
operated by the claimants stopped near the entrance to the Continental Can
Company premises. They refused to proceed further. The Superintendent
removed them from service. ..
By letter dated March 12, 1971, their removal from service,was
confirmed and they were advised to attend an investigation on March 16, 1971,
to determine "responsibility, if any, for insubordination when you refused to
perform switching service at continental Can Company . . as ordered by J. A.
Fraser, Terminal Superintendent, at approximately 3:30 P.M., March 11, 1971."
After the investigation, the Claimants were advised on March 19, 1971, that
they were dismissed from service. They were reinstated on April 1, 1971. The
claim here is for compensation for the days they were held out of service.
Employes contend that the Claimants "were not afforded the fair
and impartial investigation to which they were entitled under the Investigation
Rule" and "that the record did not establish guilt of insubordination as attributed to claimants."
Carrier argues (1) that the Claimants were reinstated with the
clear understanding and agreement between the Superintendent and the General
Chairman that the Claimants would receive no pay during the time they were
held out of service, (2) that they were guilty of insubordination as charged
and (3) that the penalty of dismissal was warranted.
` s; Y
Award
No.' 2
r, ::; : - -.r,- .
Case Nos.
1-71, .2-71
and
'3-71 -.~
-3_ _ . .. ,;.-
Article VIII of the Agreement contains the following: .'
"No engineer will be suspended or discharged
without first having a fair and impartial hearing and his responsibility established. The
investigation shall be held within thirty (30)
days after date of occurrence."
Neither that rule nor any other in the schedule agreement specifically permits
the Carrier to hold an engineer or fireman out of service before an investigation. '
There are, of course, circumstances which may compel the Carrier to send an
employe home before a hearing. Theft, assault, drunkeness are obvious conditions
when employment may be suspended pending a bearing. But alleged insubordination
arising out of a strike situation such as we have here is not one of them. Too
many probabilities exist before absolute insubordination is established. Carrier
violated this rule when Claimants were held out of service between March 11 and
March 19, 1971.
All of the crew members of Run 29 refused to take the train into
the premises of the Continental Can Company. The Superintendent spoke to each
and upon refusal took each out of service. No one, except the Terminal Superintendent, the Engineer, the Fireman, the Engine Foreman and the Switchman were
present at the rail entrance to the Continental Can Company. No pickets were
at the entrace at the time.
The Superintendent acted as he did because some one at the
Continental Can Company allegedly told him on the telephone that the President
of the striking Steelworkers local Union agreed to permit the railroad to make
the switching moves "providing it only involved gondolas for scrap." This was
supported by testimony of the Can Company supervisors. Fraser also testified
that the Can Company's representative assured him "that he would have a representative of the Can Company there to see that there was no interference."
That testimony was not refuted by Can Company witnesses. The only Can Company
man who came on the scene a little later was their Shipping Foreman. No.
representative of the Steelworkers Union was there.
The record shows, however, that the Yardmaster left a note for
the Engine Foreman on March 11,
1971,
which reads:
"Union Officials from the Can Company Union
will meet you at the Continental Can Company
at 2:30 P.M. to give you permission to pull
and set track TR-2 per J. Fraser.
'Bill C.
"Bill C." is the Yardmaster and "J. Fraser" is the Superintendent who spoke
to the Claimants, ordered them held out of service, and preferred charges
against them. Mr. Fraser admitted that he at no time spoke to any one of
the Steelworkers Union and at no time did he seek confirmation from them of the
alleged arrangements.
. . - r . .;l~e
. 'i:,
iu, '^ ~'
.,~.
w,'.a-i-- .~.:
-'k°0.Y
4.~!
,. . . . . . .F d ~. ( * ~'ir ~" y .. F 1 Y
4
.E
Award No. 2 · _
Case Nor.
1-71,
2-71 and
,3-71.'~u
j-
'^ -
The Superintendent also testified that claimant Balchunas told
him that he had been threatened a day before the incident. Yet he ordered him
and the other crew men to cross into the strike area. When Claimant Balchunas
protested his dismissal from service on March 11, and told the Superintendent -
that never before did Supervisors compel crew men to enter strike areas arid
that Supervisors took trains in, the Superintendent replied that the "officials ~
were wrong in doing this." ' '--"'- "-- ^'"~ c~d.~
A careful reading of the investigation record clearly shows
that the Claimants had every reason to fear bodily harm. They were warned
and
threatened by
employes on strike. Imminent danger is not confined to a
single instance when no pickets are present at a particular entrance Unlike
the circumstances in the claim
adjudicated in
Award No.
29
of Special Board
of Adjustment No.
589,
valid substantive reasons do exist here to justify
Claimants' refusal to switch the struck plant.
A Steelworker member on strike, who was a strike counselor,
testified that neither he nor any other member war advised of an alleged
agreement on February 18,
1971,
to permit the Can Company to switch gondolas.
He also testified that he was in his Union Hall on March 11,
1971,
between
2:30
and 3:00 P.M. One of the pickets
approached him
and said that one of
the trainmen went to the picket line and "wanted to know if we would give
him permission to pull those cars." He could find no record of such permission.
He, nonetheless, went to the scene with the trainman and he saw the "train was
coming out with those two cars."
When he
learned that the trainman (Russell)
had been taken out of service he tried to stop the switching.
The substance of the Steelworker's testimony shows that the
Superintendent acted impetuously and completely irrationally. If he, instead,
of the trainman, had made inquiry of the Steelworker Union the unfortunate
incident could have been avoided.
In view of all the evidence in the record, the Board finds
that the Carrier was arbitrary, capricious and totally unreasonable in dismissing Claimants from service. In view of this finding, there is lack of
consideration to interpret the meeting of March 30, and the letter of March
31, 1971,
as a binding agreement that the Claimants be reinstated without
compensation for the time they were out of service. And this is also true
in view of the fact that they were held out of service prior to the completion
of the investigation contrary to the contract rules.
AWARD
Claims sustained. Carrier is directed to pay the claims within
thirty (30) days of the date of this Award. E30 at Chicago, Illinois, thi~L day of ,1972
.
PUBLIa W BOARD No.
S
D'N DO111ICK, Chairman d-H utral er
AVI an
'S.
13. DUTRWW,
Carrier emM mbei ~.Y,Employ ember