(Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE: (The Illinois Central Gulf Railroad

(1) The suspension of sixty (60) days imposed upon Trackman C. M. Harper for alleged violation of 'Rule R' was capricious, arbitrary, without just and sufficient cause and on the basis of unproven charges (System File 134-296 Spl. Case #1039 MofW/A1-47-T-76).

 (2) The claimant's record be cleared of the charge placed against him and reimbursement be made for all wage loss suffered."

 OPINION OF BOARD: The claimant is a Trackman. At the time of the
 incident here at issue, he had about seven years
 of service with the Carrier. The record gives no indication of prior
 disciplinary difficulties between himself and the Carrier.

 On Saturday, January 24, 1976, while off duty and off the Carrier's property and while situated as a passenger in a friend's car, the claimant was arrested for possession of marijuana and carrying a concealed weapon. He was taken before the Mayor's Court in Ackerman, Mississippi. He pled guilty, was fined, and was released over the weekend.

 On Monday, January 26, 1976, the claimant was re-arrested on the charge that he had stolen the weapon. The weapon was a pistol and carried a serial number which matched that of a pistol which had been reported stolen in another town. The claimant did not admit to this charge, contending that the weapon had been pawned to him at a pool hall. The question as to the claimant's guilt or innocence on this score was still pending at the time of the investigation of the present case (February 9, 1976). The Carrier is not in any way relying on the claimant's re-arrest and the attendant larceny charge in defending the present disciplinary action. We have made mention of the matter solely for the purpose of explaining the fact that the claimant, though released from the Ackerman Court by the time the weekend had ended, was absent from work on Monday (January 26, 1976). The claimant
                      Docket Number NW-22130


was back at work on the following day and thereafter incurred no absences by virtue of the incident here at issue (except, of course, for the serving of the suspension).

 The transcript covering the investigation shows the incident to have been made up essentially of the following:

 - The claimant's friend was the owner of the car. The marijuana which was discovered by the arresting officer had been stored in the car, with the knowledge of the claimant's friend and without the knowledge of the claimant. When discovered, the marijuana was still stored in the car - i.e., it was not in the physical possession of either person.

 - The claimant let the arresting officer know that the marijuana was not his. He was told by the arresting officer, and he accepted as true, that one's presence in a car which contains marijuana is the legal equivalent of possession of marijuana.

 - The weapon, on the other hand, was on the claimant's person. The claimant handed it to the arresting officer without hesitation and without effort to shift blame to his friend.

 - The claimant was not represented by counsel at the Ackerman Court. He pled guilty to both charges. He did so to assure his quick release and thereby to protect his job. He was released upon payment of a $400 fine ($300 for the marijuana and $100 for the weapon).

 Two things should preliminarily be noted. One is that the Carrier at the investigation, in response to the Organization's reliance on the fact that the incident occurred at a time when the claimant was off duty and off Carrier property, made mention of Bile G. Rule G deals with "Intoxicants, Narcotics, and Drugs" and refers to employes "subject to duty" as well as to employes "on duty". Both in terms of the imposition of the suspension and in terms of the defense thereof as submitted to the Board, however, the Carrier invoked Rule R alone. We view lhxle G as not before us in deciding the case.

 The other preliminary matter concerns the claimant's guilty plea at the Ackerman Court. We agree with the Carrier that the case should be dealt with on the basis of the plea which the claimant in fact entered - not on the basis of what might have happened had the claimant been represented by counsel, not on the basis of skepticism concerning the legal equivalency (rather than true possession) on which the marijuana charge rested, and not on the basis of the claimant's motivation in entering the guilty plea. We are sympathetic to the claimant on these
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                    Docket Number 74b1-22130


scores and, indeed, we commend him for acting decisively to protect his job. But we are adhering to the fact of the claimant's guilty plea in deciding the case.

        Rule K is titled "Conduct" and reads as follows:


        "Courteous deportment is required of all employes in their relations with the public, their subordinates and each other. Boisterous, profane and vulgar language is forbidden. Courtesy and attention to patrons are demanded. Employes mist not enter into altercations, scuffle, wrestle, play practical jokes, fight, or engage in horseplay while on duty or on company property.


        Employer must not be.,


        (1) Careless of the safety of themselves or others;

        (2) Insubordinate;

        (3) Dishonest;

        (4) immoral;

        (5) quarrelsome or otherwise vicious;

        (6) Involved in gambling or playing games on duty

        or an company property."


        We do not believe that we can properly uphold the suspension.

There clearly are severe difficulties in assuming that Rule K applies to
 off-duty and off-Carrier-property conduct as well as to on-duty and
 on-Carrier-property conduct. Both by its terms and by the double-reference
 to "on duty or on company property" - see the last sentence of the first
 paragraph and item (6) - the Rule gives every indication that it is
 intended to regulate employe conduct while an duty and/or on Carrier
 property. And, were one to pursue a constriction by which the absence
 of the "on duty or on company property" reference at some portions of
 Rule K is taken to reveal an intention to apply those portions without
 regard to the distinction, one would run into the absurdity of viewing
 such away-from-work events as the use of "boisterous" or "profane" or
 "vulgar" language and "carelessness" and a "quarrelsome" conversation
 as Carrier-punishable events. Nevertheless, let it be assumed that
 items (3) and (4) - the "dishonest" and "immoral" items which the
 Carrier seems to be relying upon - are in some circumstances rendered
 applicable to off-duty and off-Carrier-property conduct. There are some
 past Board Decisions which in effect make this assumption (though there
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                      Docket Number Mb7-22130


are others which reject it). We are not foreclosing the application of the assumption, but we believe that the least which must be true is that the employe's conduct has been shown to have been of some adverse consequence on the Carrier. Stating it otherwise, we believe that some linkage bearing on the employer-employe relationship must be demonstrated.

 We find that this condition has not here been satisfied. There is no evidence'which would indicate that the incident was marked by unfavorable publicity, or that some patron expressed alarm, or that the claimant was engaged in an activity for which Supervision had expressed concern or which otherwise carried-over to the work place, etc. The record is bare of any evidence of this sort. It shows simply that the incident came to the Carrier's attention a few days after its occurrence and that the Carrier therewith commenced the disciplinary action here presented. In these.circumstances to permit the suspension to stand, we believe, is to authorize the Carrier to sit in judgment and take disciplinary action with respect to an event which creates primary accountability to society, for which the employe has paid his debt to society, and which did not secondarily harm the Carrier's legitimate business interests. We direct that the suspension be rescinded and the claimant be reimbursed accordingly.

        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'iavolved 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 aver the dispute involved herein; and

        That the Agreement was violated.


                      A W A R D


        Claim sustained.


                            NATIONAL RAILROAD ADJUSTMENT BOARD

                            By Order of Third Division


        ATTEST: ,~ '~,~ Executive Secretary


        Dated at Chicago, Illinois, this 31st day of January 1980.