This case is on appeal of the dismissal of the Claimant, a former Signal Maintainer, on May 26, 1995, following an Investigation held on April 27, 1995. On April 10, 1995, Special Agent L. A. Maggard learned that Claimant had appeared in Oldham County, Kentucky, District Court on April 6 on an arrest and charge of felony theft and misdemeanor theft by unlawful taking. In Court, the felony charge was dropped and Claimant entered a plea of guilty to the charge of misdemeanor theft for which he was ordered to make restitution and perform community service. Special Agent Maggard notified Signal Supervisor D. E. Boatright of the disposition of the case on April 10, 1995.
The Organization maintains that the Carrier failed to make the charge against the Claimant within ten days of the date it had knowledge of the alleged offense. Claimant was dismissed for conduct unbecoming an employee when he pled guilty to stealing money from the LaGrange Elementary School Parent-Teacher Association, of which he was President.
Claimant was also charged with being absent from assignment without permission from proper authority and claiming time and wages for time not worked on February 23 and April 6, 1995, but those charges were dropped and Claimant was discharged for the conduct unbecoming an employee in relation to the guilty plea to theft.
The evidence shows that the Carrier first became aware of the subject matter of the charge (the guilty plea to theft by unlawful taking) on April 10, 1995. The Notice of Investigation is dated April 18, within the ten days specified in Rule 55. Therefore, that was within ten days of the date the Carrier had knowledge of the alleged offense and the Organization's claim of untimeliness has not been substantiated. Form I Award No. 32305
But the precedents show that in regard to such a charge, the offense of dismissal from service may only be upheld where there is a demonstration that the Claimant's conduct had an adverse effect upon the Carrier.
Also in accord is Third Division Award 21293, holding that in a case of off-duty improper acts, in order to justify disciplinary action, including discharge, there must be some evidence of damage to the Carrier.
In this case, the Board finds in the record an absence of direct evidence which would demonstrate an adverse effect upon the Carrier, its operations, or its relations to its customers and employees arising from the Claimant's misconduct. There is no demonstration of a direct connection between the Claimant's employment relationship Form 1 Award No. 32305
and his arrest and guilty plea, or of damaging publicity or effect on Claimant's ability to do his job. Claimant had some 20 years of service. The Carrier asserts prior discipline in 1982 in that Claimant was disciplined for unauthorized possession of Company material for which he received a 25-day actual suspension without pay on September 8, 1982. The Organization states that there is no indication in the record of any previous discipline or of the Carrier's assertion that "The Board need only consider that the act of theft from a public school PTA by its president was conduct unbecoming anyone which surely brought unfavorable publicity to CSXT in a small town the size of LaGrange."
Clear Board precedent establishes that we may proceed as an appellate body only on the record made on the property. But Claimant's misconduct must have had some connection with the Carrier in a small community, as alluded to in the Organization's June 5, 1995 letter addressed to the Carrier.
In view of all of the above points, the Claimant should be permitted to return to work with the Carrier with seniority unimpaired, but without backpay. His continued employment will be conditioned upon his maintaining a good employment record.
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.