` petit larceny on August 23, 1971. Claimant was fined and given a jail term


Form 1 Award No. 7031
 Page 2 Docket No. 6665
 2-SCL-MA-'76
 Thereafter Carrier oz-dered Claimant to appear- for investigation and
 notified him on September 23., 1971 as follows:







Following the hearing and evaluation of the record Carrier notified Claimant on October 1S, 1971 as follows:



The Organization on behalf of Claimant protested this decision and requested
 payment to Mr. Lowe for "...,all wages lost, fringe benefits, such as hospita
 lization .and etc. .... ." The claim was not resolved on the property
 and was appealed to our Board for disposition.

 The Organization asserts that the discipline was unjust, arbitrary and capricious because: 1) The Rule 12 relied upon by Carrier is a rule of the merged Carrier now known as the Seaboard Coast Line Ra ilrcn d Company and was not in effect at the time Claimant was indicted in 1966 or in 1961-62 when he committed the crimes which he admitted 2) There was no connection between Mr. Lowe's employment and the crimes 3) Claimant was a long-time employee with a good service record 4) The investigation was untimely held 5) Claimant was not afforded due process or a fair hearing. Based on all of the foregoing the Organization insists that the suspension was arbitrary, unreasonable and capricious.
 v. Form 1 Award No. 7031
 Page 3 Docket No. 6665
 2-SCL-MA-' 76






            Claim is denied.


                                NATIONAL RAILROAD ADJUSTMENT BOARD

                                By Order of Second Division


      Attest: Executive Secretary

      National Railroad Adjustment Board


                      ' . G


      By _ _ t.~.

      Ro marie Brasch - Ad nistrative Assistant.


      Dated at Chicago, Illinois, this 9th day of April, 1976.

                    LABOR MEMBER'S DISSENT TO

                    AWARD NO. 7031, DOCKET NO. 6665


        This Award is in contradiction to other sound correct Awards of this Board concerning off-duty conduct of Employes.

        The majority piece-meals the record in this case, completely out of context, in order to arrive at conclusions through their distorted reasoning. Such reasoning as wherein stated:


                "XXX The Organization asserts that the discipline was unjust, arbitrary and capricious because: 1) The Pule 12 relied upon by Carrier is a rule the merged Carrier now known as the Seaboard Coast Line Railroad Company and was not in effect at the time Claimant was indicted in 1966 or in 1961-62, when he cammitted the crimes which he admitted xxx."


"XXX We have reviewed the record carefully and
 cannot concur with the organizations' position.
 As we understand the record, Claimant was charged
 with conviction of petit larceny and conspiracy,
 ° criminal charge to which he pled quilty and was
 sentenced in August 1971. Thus, the organizations'
 arguments permised on untimeliness, and non
 existence of Rule 12 in 1961 or 1966 are irrevelant
 This astonishing conclusion emanating from a majority with
 legal training and background is most amazing and distressing.
 Could anybody in their right mind even conceive the implications
 of retroactive changes in law? Nobody, but nobody, is held ac
 countable for.changes in laws, or rules, occuring years afterwards
 and holding that some previous actions were improper even though at
 the time of occurrence they might not have been.
 The Award dictum goes on to state:
 "XX The Claimant admitted at the hearing that he
          pled guilty to the criminal offenses and was sentenced. His reasons for doing so are not material in these proceedings and the conviction is a matter of public record xxx."

What the majority is casually and insensitively brushing aside as "not material' is the fact that the Claimant had fought these charges for all of those years until he was mentally, physically and financially drained. With prospects of facing many years of the same he was forced to enter .a lesser plea due to the exhaustion of all his finances as well as to his other physical resources. In the hearing record, as well as throughout the entire record, he steadfastly maintained his innocence of any wrongdoing.
      The majority continued the distorted reasoning as:


"KXC It is quite true, as the organization asserts, that ordinarily employes may appropriately be disciplined for misconduct off the job only if some connection is shown between the misconduct and the employment relationship. Typically these cases present a situation in which the employer's reputation or public image is negatively affected by association with the employe's notoriety. In our judgement the record herein supports such a finding. Newspaper articles in the record describe the indictment, litigation and conviction of Claimant. In at least one such newspaper story Claimant was identified as a long time employee of carrier xxx." record factually showed that the court involvement of the never interfered with his duties whatsoever and the Company and didn't, attempt to charge him with a single day, or

 hour, absence due to'th:is issue. So it is factual that it didn't interfere with his work and his employment relationship in any degree.
 It is further astonishing that the majority would seize on one single news media mention that the Claimant was an employe of the the Carrier. Keeping in mind that this case had been in the courts

 The Claimant couldn't,

 (LABOR MEMBER'S DISSENT TO
 AWARD NO.7031, DOCKET NO. 6665)
 for years this one single mention was certainly a negligible, if any, reflection on his employer. In fact the record unrefutably showed where this same pious Carrier utilized his civic position on three different occassions to gain concessions for their-own interests. Even once against the best interest of his own Organization and now a majority winks at the standards of the Master while condemning the Servant under a different standard.
 Other, More soundly reasoned Awards have held that these Carrier unilateral rules do not apply to every minute of off-duty conduct. Such as Third Division Award No. 18405 in pertinent part:

 "xx Rule G has never been held to be a'regulation which extends to every minute of an employe's private life and inflexcibly dictates off-duty conduct xxx." Also Third Division Award No. 20637 stating in pertinent part:

 "xxx we do not agree with Carrier's conclusions with respect to the alledged Rule G violation. First, Claimant had left the property and was clearly not on duty, but engaged in personal business when he was arrested; at that time he was not subject to the provision of Rule G xxx." Even more inexplicable was the holdings*of this same neutral in Third Division Award No. 20874 in pertinent part:

          "xxx our consideration of this matter and especially study of the authorities cited in Award 20703 leads us to conclude respectfully but firmly that the general rule is mistated therein. The correct standard is that an_employe's off duty misconduct may be the subject of employer discipline where that conduct was found to be related to his employment or was found to have an actual

          _ or reasonably forseeable adverse effect upon the business. The connection between the facts which occur and the extent to which the business is affected must be reasonable and discernible. They must be such as could logically be expected to cause some result in the employer's affairs.


~~ - - (LABOR' MEMBER'S DISSENT TO
                                      AWARD NO. 7031, DOCKET NO. 66

                In this latter connection mere speculation as to adverse effect upon the business will not suffice. Elkouri & Elkouri, How Arbitration works, 3rd. Ed.

                B.N.A., Inc. Wash. D. C. 19?3 pp. 616-618. (Emphasis added;


                In applying the foregoing principles to the instant case we must conclude that under different circumstances Claimant's off duty conduct might have presented grounds for discipline but the record in this case is not sufficient to permit our endorsement of carrier's discipline. There is no showing whatever that Carrier's reputation was connected in any way to Claimant nor that the employer - employee relationship was a matter of public record let albne notoriety. Moreover, the six-month time delay between the off duty incident and Carrier's charges against Claimant, during which time Carrier suffered no apparent or proven adverse effect, is additionally probative that no actual or foreseeable causative link existed between the conduct and the employer-employee relationship xxx."

        The facts of that case square with this instant case in that the Carrier in no way suffered any adverse effects upon either its' business or professional posture with the community. Also no purpose was herein accomplished by the imposed discipline except in a vin-

.
        dictive manner. Even though this quoted Award only preceded the instant one by several months this neutral must have exhausted his capacity for understanding and turned hardened and deaf ears:to._this Claimants' plea for justice.

        The distorted reasoning within this Award demands this vigorous dissent..


                                    George R. DeHague

                                    Labor Member


                                - 4 - (LABOR MEMBER'S DISSENT TO

    ~`---' AWARD NO. ?031, DOCKET NO. 6665)