Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD
 THIRD DIVISION
 Award No. 32953
 Docket No. CL-33743
 98-3-97-3-203

 The Third Division consisted of the regular members and in addition Referee Robert Perkovich when award was rendered.

(Transportation Communications International Union PARTIES TO DISPUTE:



STATEMENT OF CLAIM:


























Form I Award No. 32953
 Page 2 Docket No. CI~33743
 98-3-97-3-203
 (5) Carrier must grant to Mr. Greear any and all benefits he may have
 been able to attain relative to the Master Implementing Agreement
 (MIA) dated December 19, 1995, between Transportation
 Communications Union and the Burlington Northern Santa Fe
 Corporation, as if he was never dismissed from service.
 (6) Carrier must also remove any comments in Mr. Greear's personal
 record that reference the investigation and the Carrier's decision."

 FINDINGS:

The Third Division of the Adjustment Board, upon the whole record and all the evidence, rinds that:


The carrier or carriers and the employee or employees involved in this dispute are respectively carrier and employee within the meaning of the Railway Labor Act, as approved June 21, 1934.


This Division of the Adjustment Board has jurisdiction over the dispute involved herein.




Claimant, with over 40 years of seniority, was employed at all material times herein as an Overcharge Claim Clerk in the Carrier's offices at St. Paul, Minnesota. On May 25, 1995, the Claimant was charged with criminal sexual conduct and on October 16, he pleaded guilty and was sentenced to 30 days in jail. On the evening of October 23, the Claimant reported to jail. Before he did so, he sought and received from the Carrier permission to be off from work the following day. On October 25, the Claimant was released pursuant to a work release program and reported for duty. Later that same day the Carrier was notified that he was working that day, pursuant to the work release program. Two days later, October 27, the Carrier removed the Claimant from service, charging him with conduct unbecoming and ". . . failure to conduct yourself in such a manner that the (Carrier) would not be subjected to criticism and loss of goodwill." After Investigation, Carrier dismissed the Claimant.


The Organization contends that because Claimant was charged with off-duty misconduct the Carrier must prove a nexus to his work which, in the eyes of the

Form 1 Award No. 32953
 Page 3 Docket No. CL-33743

Organization, it has failed to do. The Carrier on the other hand asserts that it dismissed the Claimant under its Rule prohibiting immoral conduct, which does not have a nexus requirement. In the alternative, it asserts that it has proven a nexus adequate to justify dismissal.


There can be little doubt that discipline for off-duty misconduct requires some nexus to the legitimate interests of the Carrier. Indeed, the cases cited by the Organization so hold. However, in some cases that nexus is provided by the nature of the off-duty misconduct itself. Examples of such cases would be where the off-duty misconduct involves acts of moral turpitude or rises to the level of unconscionable behavior that should not be countenanced. Indeed, cases cited by the Carrier so hold and do so involving matters identical or similar to the circumstances presented herein. When we view the facts of the instant matter in the light of these cases cited by the parties we find that the Claimant's case more closely approximates those cited by the Carrier. Thus, we find that the Carrier has established not only that the Claimant is guilty of the Rule violation with which he is charged, but also that his dismissal was warranted under the circumstances.








This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) not be made.


                      NATIONAL RAILROAD ADJUSTMENT BOARD

                      By Order of Third Division


Dated at Chicago, Illinois, this 23rd day of November 1998.