PARTIES Brotherhood of Maintenance of Way Employees
 TO and
 DISPUTE Atchison, Topeka and Santa Fe Railway Company
 STATEMENT "1. That the Carrier's decision to remove
 OF CLAIM Plains Division Trackman, Byron W. Cook,
 from service March 13, 198.1, was unjust.
 2. That the Carrier now compensate Trackman
 Cook for all wage and benefit loss from
 March 13, 1981 until April 8, 1981 and/or
 otherwise made whole."
 FINDINGS
 Upon the whole record, after hearing, the Board finds that the parties
 herein are Carrier and Employees within the meaning of the Railway Labor
 Act, as amended, and that this Board is duly constituted under Public
 Law 89-456 and has jurisdiction of the parties and the subject matter.

 claimant was employed by carrier as a Trackman on April 30, 1980. On
 March 3, 1981, claimant received Notice of Investigation which charged
 him with falsifying his employment application by responding on that
 application that he had never been convicted of a crime which Carrier -
 alleged might not have been correct. The certification on the- employ
 ment application indicated that the answers were true and correct. and -
 any misrepresentation would be sufficient cause for dismissal.
 Following the investigation, held on March 13, 1981, Claimant was
 .. ,a&_~'? tl

                              -2-


dismissed from service as being guilty of the charges. Subsequently, on April 8, 1982, claimant was reinstated to service without pay for !,time lost. Thus the dispute herein involves pay from March 13th to April 8, 1982, only.

 The record reveals, in his employment application, Claimant Cook responded to the question that he had never been convicted of a crime affirmatively. The investigation reveals further that the Claimant was--charged and arraigned in Randall County Texas, on August 25, 1978, for - intentionally and knowingly possessing a useable quantity of marijuana.As a result of the hearing, the Judge granted Claimant probation, under the Texas'Misdemeanor Probation Act. This probation of eight months lasted until May of 1979, upon which Claimant Cook was released from probation by a Judge.

 The Texas' Misdemeanor Probation Act (Article 42.13, Chapter 42 of TexasPenal Code) provides:

                      Effect of Probation


              "Sec.A.(a) When a defendant is granted pro- -

              bation under the terms of this Act, the

              finding of guilt does not become final, nor

              may the court render. judgement thereon, ex-

              cept as provided in Section 6 of this Article. -


              (b) The court shall record the fact and date that probation was granted on the docket sheet

. or in the minutes of the court. The court
              shall also note the Period and terms of the

              probation, and the details of the judgement.

              The Court's records may not reflect a final

              conviction, however, unless probation is

              later revoked in accordance with Section 6

              of this Article."

                                              PLB-2774'

                                              AWD. No. 46

                                              CASE N0. 55 -

                              -3- -


At the hearing, Claimant consistently and repeatedly denied that he had been convicted of a crime and thus, stated that he had not falsified his application for employment. From the total record and the statute sited above, it is clear that Carrier erred in determining that Claimant was convicted of a crime and hence had falsified his application. The statute itself indicates that the probation will not result in conviction unless it is revoked following any kind of arraignment under that aspect of the Texas' Penal Code. For the reasons indicated, the claim must be sustained.

 AWARD
              1. Claim sustained.


              2. Claimant will be made whole for all

              loss of compensation for the period he

              was out of work due to improper dismissal.


ORDER
              Carrier will comply with the Award herein within thirty days from the date hereof.


                    I. M. Lieberman, Neutral Chairman


~V~flWZ
 G. M. Garmon, C rier Member S E. Fleming, Employee ember -

 February 8 , 1983 Chicago, IL