File 910226


Parties Brotherhood of Maintenance of Way Employes
 to and
 Dispute Union Pacific Railroad Company
 (Former Missouri Pacific)

 Statement
 of Claim: (1) Carrier violated the Agreement, especially Rule 12,
 when Trackman G. Chief was dismissed from service of the
 Company.

        (2) Claim on behalf of Mr. Chief for wage loss suffered, until reinstated with seniority, vacation and all other rights unimpaired.


        Findings: The Board has jurisdiction of this case by reason of the parties Agreement establishing this Board therefor.


        The Claimant, Trackman Gordon Chief, was cited to a formal investigation on the charge:


        "...that on October 4, 1990 in the vicinity of Nemaha County, Nebraska, you were allegedly convicted of possession of marijuana..."


        The Carrier concluded therefrom that Claimant was culpable and had violated Rules B, 600 and 607 - Conduct. He was dismissed from service as discipline therefor.


        The following part of Rule 607 - Conduct, refers specifically to drugs and alcohol. It reads:


        "The conduct of any employee leading to conviction of any

        misdemeanor involving moral turpitude inc a -ng wiTthout

        imitation, the unlawful use, possession, manufacturer,

        Tstri ution, dispens-a 'i-on or transportation of any illegal

        rugs or controlled substance) or any a ony is rohibi-t-ed.

        Any1- convicte~oiTssuch demeanor or fel ony must

        notify I-s or her supervisor of the conviction no later-t~an

        eru

        YE~:s: aft c convIct1on." (emphasis added


        Claimant was accorded the due process to which entitled under his discipline Rule 12.


        There was sufficient evidence adduced to support the Carrier's conclusion as to the Claimant's culpability.

                        -2- Award No. 530


        Deviating for the moment from the fact that Claimant was still on duty and under pay when apprehended, the fact remains that the constraints specifically applicable to all employees, by at least Carrier's Rule 607, when the nexus is established thereunder between a Claimant's conduct while off duty and away from the Carrier's property does have a direct impact on his employment status. That fact gives the Carrier the right to voice complaint and concern for an employee's conduct when in an off duty status. Hence, in such circumstance, the Employee's argument as to being off duty carried no weight before this Board.


        Notwithstanding, our Board will make the same offer as was made to the Claimant, under date of July 31, 1991, following the claim conference at Springfield, MO on June 13, 1991, except as to the last sentence of the second paragraph concerning the possible failure of the Claimant to meet his EAP requirements during the 12 month probationary period. The Claimant (employee) must have the protection of Discipline Rule 12 in order to assure that he will have a means of handling a dispute in any facts or contentions, even up to the point of arbitration. However, the arbitrator will have no authority, if such were proven to not be facts, to alter his status of dismissal. It is to be noted and emphasized that if the Claimant does not reply in the affirmative to this offer within 35 days of the offer being made by the Carrier, such offer will then be withdrawn and this case will revert to a claim denied status.


Award: Claim disposed of as per findings.

        Order: Carrier is directed to make this Award effective within thirty (30) days of date of issuance shown below.


c~rrv»~ ~'S
 S. A. Hammons, Jr., Empl5yee Member . 0. Rock, Carrier Member

                '. Van Wart, Cairman and Neutral Member


Issued April 24, 1992.