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                                  Case No. 448

                                  UP File 890787


      Parties Brotherhood of Maintenance of Way Employees

      to and

      Dispute Union Pacific Railroad

      (Former Missouri Pacific Railroad Company)


      Statement

      of Claim: Claim of Trackman E. E. Wilburn, SSN 497-62-2104, for

      eight (8) hours per day at the straight time rate of pay,

      including any overtime, holiday pay and any subsequent

      expenses occurred that would normally be provided by

      Carrier, health and welfare benefits, beginning September 8,

      1989 and continuing until reinstated with all rights

      unimpaired.


      Findings: The Board has jurisdiction by reason of the parties

      Agreement establishing this Board therefor.


              The Claimant Trackman, following a formal investigation held on September 8, 1989, was concluded culpable and dismissed from service- as discipline for his conduct unbecoming an employee because of the criminal charges filed against him August 25, 1989 in the Acheson County District Court on two counts of First Degree Murder, Class A, Felonies.


              The Claimant, on the record of this case, was accorded the due process to which entitled under Rule 12. The fact that he was only incarcerated and not yet found guilty of the two murder charges does not create a procedural deficiency. Subsequent to the investigation and decision in this case, the Claimant was found guilty by the court. As was noted in Second Division Award 5681:


              " ..Carrier was within its right in discharging Claimant-because of conduct unbecoming an employee... Carrier is under no contractual obligation to retain in its employment employes that it has just reason to believe are quarrelsome, antagonistic or of a dangerous character. It may be that the deceased ...provoked...the action taken by this Claimant. However,... the retaliatory action taken by this Claimant far surpassed that-an ordinary, reasonable and prudent person would have taken ...The fact that the incident occurred off of Carrier's

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                              -2- Award No. 448


            property and on Claimant's rest day does not take away Carrier's right to discipline this employee."


            There was sufficient evidence adduced to support Carrier's conclusion as to Claimant's culpability. Claimant admitted to one of Carrier's witnesses, (1) that he had killed the two persons, (2) that he was sorry that he had brought notoriety upon the Carrier, and (3) that he was willing to resign.


            While it was indeed an unfortunate incident, the sentence subsequently imposed by the Court of life imprisonment and a minimum term of 15 years on the charge of second degree murder warrants the denial of the claim.


      Award: Claim denied.


      S. lC. Hammons, Jr. Em fee Member D. A. Ring, Carrirober


A thur T. Van Wart, Chairman

and Neutral Member


      Issued December 19, 1990.