(American Train Dispatchers Association PARTIES TO DISPOTE: (The Atchison,, Topeka and Santa Fe ( Railway Company

(a) The Atchison, Topeka & Santa Fe Railway Company hereinafter referred to as "the Carrier" between the parties, Article VII _hereof in particular, by its action in assessing discipline in the form of dismissal of J. L. Thomas following a formal investigation held October 1, 1975. The record of said formal investigation fails to support Carrier's charges; thus imposition of discipline was arbitrary, capricious, unwarranted and an abuse of managerial discretion.

 (b) Carrier shall now rescind the discipline assessed, clear Claimant's employment record of the charges which provided the basis for said action, and to compensate Claimant for wage loss suffered due to Carrier's action.

 OPINION OF BOARD: Train Dispatcher J. L. Thomas completed his
 regular work assignment on Sunday, September 7,
 1975, at 3 p.m. and left work subject to returning to duty on his next
 regular-assignment commencing at 7 a.m., Monday, September.8, 1975. After
 leaving work, Thomas spent-some hours in a nearby lounge, thereafter
 left the lounge at approximately 10 p.m., and drove away in his own car.
 He subsequently was involved in an automobile accident which involved
 hitting another car and then hitting a house adjacent to the road.
 Thomas was arrested under a charge of driving while intoxicated. At
 3 a.m. he was permitted to make a telephone call. He called his
 father and asked him to report him off duty for Monday. The father
 called the Carrier, reached Train Dispatcher J. C. Russell (then
 serving as Acting Chief Train Dispatcher) and reported his son off
 duty for the shift starting at 7 a.m. Russell acknowledged the
 information and proceeded to schedule a replacement Train Dispatcher.
 Thomas' father also indicated to Russell that he would telephone the
 Chief Train Dispatcher, with whom he was personally acquainted, to give
 a further explanation of the circumstances.


Following an investigative hearing, Thomas was advised by the Carrier as follows by letter dated October 1, 1975:

          "Formal investigation was held in the Trainmaster's Mice at Fort Worth, Texas, beginning at 9:00 a.m. Wednesday, October 1, 1975, to develop all facts and place your responsibility, if any, in connection with report that you failed to protect your regular assignment as train dispatcher, without proper author lay off, at 7 a.m. Monday, September 8, 1975, account reportedly confined by local authorities in connection with charges concerning automobile accident and intoxication Sunday, September 7, 1975, to determine whether or not Rules C, G, 752 (A) and 752(C), Rules Operating Department 1975, had been violated.


          It was the decision that you are responsible in your failure to comply with Rules 752 (A) and 752 (C), Rules Operating Department 1975, and for your responsibility and failure to comply with these rules you are hereby dismissed from service."


During the processing of the subsequent claim, the Carrier reduced the dismissal action to a 30-calendar-day suspension, Thomas was reinstated on November 1, 1975, and the claim was further processed based on the suspension.

        The rules involved in the disciplinary action are as follows:


          "752(A). Employes mast report for duty as required and those subject to call for duty will be at their usual caying place, or leave information as to where they may be located. They must not absent themselves from duty, exchange duties or substitute other persons in their places without proper authority."


          752(C). Employes must not be dishonest, immoral or vicious. They must conduct themselves in a manner that will not bring discredit on their fellow employes or subject the railroad to criticism or loss of good will.

                  Award Number 22314 Page 3

                  Docket Number TD-21933


It is to be noted that charges in reference to Rule C ("Employes must know and obey rules") and Rule G (use of intoxicants) were not included in the Carrier's findings following the investigation. Thomas' use of intoxicants, in and of itself, is therefore not before the Hoard for consideration.

 As to Rule 752(A), it is the Carrier's position that Assistant Chief Train Dispatcher Russell merely received the information about Thames' proposed absence; that he was neither asked for nor did he grant permission for such absence. Therefore, argues the Carrier, the Claimant is in violation of Rule 752(A), for having absented himself "without proper authority".

 The Board finds that the Carrier's argument is not supported by the evidence. Notice of absence was given in ample time to obtain a replacement. Russell indicated, in his testimony at the investigative hearing, that he was "the proper authority on that shift" to receive such a request (Hearing Transcript, p. 10) and that if permission had been 'requested, he would have granted it (Hearing Transcript, p. 11). As to the father's statement that he would separately call. the Chief Train Dispatcher, there was no confirmation or denial that this second call. was made. Had the Carrier, in supporting its case for discipline, wished to deny that such call was made, it merely had to have the Chief Train Dispatcher so testify. Between 3 a.m. and the 7 a.m. reporting time, it is difficult to see what further steps could have been taken under Rule 752 (A) by or on behalf of the Claimant.

 This is not typical of the numerous cases in which an employe is not only absent but also fails to make any notification prior to assigned starting time, owing to intoxication, incarceration, or both. At this point, it must again be noted that violation of Rule G (intoxicants), part of the original charge, was excluded by the Carrier in its disciplinasy notice after the investigative~hearing.

 As to Rule 752(C), it is the Carrier's contention that the actions of the Claimant subjected "the railroad to criticism or loss of good will." This is based on the fact that Thomas' car carried a "Santa Fe" automobile sticker, leading to a possible identification of his car as having some relationship with the Carrier (i.e., as an employe); that the Claimant was identified as a "dispatcher" in the police report; and that he pleaded guilty to charges involving an automobile accident and intoxication and was fined $250 and placed on six months' probation.
                  Award Number 22314 Page 4

                  Docket Number TD-21933


        This is ~n~ot~ ~one of the cases in which an employe, through

theft or other similar acts, becomes publicly known and, at least by
 implication, adversely affects the employer if the employer condones
 or ignores the act. There is no evidence that Thomas was perceived
 to have acted during his escapade as an employe or representative of
 the Carrier. For example, the fact that an automobile carrying a
 "Santa Fe" sticker is involved in a serious accident does not, by
 itself, identify the driver as an employe of the Carrier, nor even
 that the car's driver was at fault.

        The reasoning in Award No. 20874 is instructive:


          "The crux of this dispute is .'.he question of whether Carrier has the right to discipline an employe for conduct away from the place of work. Each of the parties have cited numerous Awards and authority, review of which leads to a qualified 'yes' in answer to the central question herein. Carrier has placed great reliance on Award 20703 of the First Division which states in pertinent part as follows:


            'The question of an employer's right to dismiss an employe for conduct away from the place of work has not yet been answered with finality by industrial arbitrators. As a general rule, they have held however, that such conduct constitutes just cause for dismissal if the employer's reputation may conceivably be damaged by the notoriety of the employe 's conduct. See Frank Elkouri & Edna A. Elkouri, How Arbitration Works, Rev. Ed., Wash. D.C. B. NA Incorporated,

. 1960, pgs. 414.-415 and cases cited therein and
            0rme W. Phelps, Discipline and Discharge in the

            Unionized Plant. Berkely, California University

            of California Press, 1959, p. 107 and cases cited

            therein.' (Emphasis added).


          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

                  Award Number 22314 page 5

                  Docket Number TD-21933


          "of employer discipline where that conduct was found to be related to his emp7.oyment 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. 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. 1973 pp. bib_

          ~1 .~

          (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 - employe relationship was a matter of public record let alone notoriety. "


        FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:


        That the parties waived oral hearing;


That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934;

 That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and

        That the Agreement was violated.

                    AWaxd Number 22311E Page 6

                  Docket Number TD-21933

                  A W A R D


        Claim sustained.


                        =MAL RAILROAD ADJUSTMENT BAUD

                        By Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, I71inois, this PPM day of February 1979.