SPECIAL ADJUSTMENT BOARD NO. 947
Claimant - L. C. Yahnert Award No. 92 Case No. 92
PARTIES
 TO
 DISPUTE
STATEMENT
 OF CLAIM


That the Carrier's decision to terminate Claimant, L. C. Yahnert's services with the Carrier was excessive, unduly harsh and in abuse of discretion, and in violation of the terms and provisions of the current Collective Bargaining Agreement.

 That because of the Carrier's failure to prove and support the charges by introduction of substantial bona fide evidence, that Carrier now be required to reinstate and compensate Claimant for any and all loss of earnings suffered, and that the charges be removed from his record.

 FINDINGS
Upon reviewing the record, as submitted, I find that the Parties herein are Carrier and Employes within the meaning of the Railway Labor Act, as amended, and that this Special Board of Adjustment is duly constituted and has jurisdiction of the Parties and the subject matter; with this arbitrator being sole signatory.
 The Claimant had worked for the Southern Pacific Transportation Company for two years less three months at the time of the incident which precipitated his discharge. At

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sometime before working with SPTC, he worked for Union Pacific and was elligible for an Amtrak Rail Privilege Pass. On February 25, 1988, the Claimant was a passenger on Amtrak Train Number 11 which arrived in Los Angeles about 6:00 p.m.. Upon its arrival, one of the passengers reported the theft of her camera, a radio and money in the amount of $210.00. When she was auestioned by Amtrak Police Officer, Mr. Holloway, she indicated she believed the Claimant was a likely suspect in the theft since he had been sitting beside her during the trip. The Claimant who was nearing them, agreed to have his baggage searched, but nothing was found.
 The victim then went to fill out an incident report. About twenty minutes later, Mr. Holloway received an Incident Number which the victim would need for insurance purposes and proceeded out onto the platform area to find her. He noticed she was talking to the Claimant. At first he thought they were having a casual conversation, but as he neared he realized they were arguing. It turned out the Claimant was now in possession of a black bag which he had not had when he was searched earlier. The victim searched the bag and foundher camera, radio and on the Claimant was found $410.00 in cash. Subsequently, the Claimant alleaedly showed the others where the victim's other stolen possesions were located, i.e. her check book, wallet and several a"osed roles of film.
 When the Claimant was found to be in possession of the stolen items, he was placed under arrest. During an inventory of his possession, it was discovered he had the Amtrak Rail

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Pass. He was asked where he wor:ced and he reported he worked for the SPTC. The suspect was eventually charged with receiving stolen merchandise, served twenty (20) days in jail and nlaced on two years probation. When the Carrier discovered this incident, they sent the Claimant a charge letter advising him to appear for hearing to determine whether he violated Rules L and 607 of the Rules and Regulations for the Government of the Maintenance of Way and Structures and Engineering Department Employes of the Southern Pacific Transportation Company, those portions which read:

      Rule L: Employes must conduct themselves in

      such a manner that their Company will not be

      subject to criticism or loss of good will.

      Rule 607: CONDUCT: Employes must not be. .


(4) Dishonest. Any act of hostility,
 misconduct or willful disregard or
 negligence affecting the interests of the
 Company is sufficient cause for dismissal
 and must be reported.
 The Carrier believed the evidence showed the Claimant was
 guilty of violating the cited rules and dismissed him by letter,
 dated March 29, 1988. The Union appealed this matter to this
 Board.
 The Claimant's version of what happened is really not
 credible. Especially since the explanation of the events
 provided by the Amtrak officer provided substantial evidence
 against the Employe. Therefore the burden of proof shifts to
 the Claimant to show that his version of the occurrence is more
 believable. He did not meet this burden. Certainly he had more
 reason to distort the truth than the Amtrak Officer. The other

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thing which was very noticeable to this Board was the obvious attempt on the part of the Claimant to avoid any discussion of the $410.00 which was taken from him at the time of the arrest. While the $100.00 he allegedly lost in purchasing the camera seemed to have left an impact, the $400.00 which was taken from him did not.

 The final question. to be addressed by this Board, is whether the Company has shown a sufficient nexus between the Claimant's employment with the Carrier and his off-duty conduct. Here the burden is on the Company to show the nexus exists. Their failure to do so would cause this Board to take a hard look at the dismissal issued to the Claimant. While normally this Board would require more concrete evidence that their reputation was damaged by the off-duty actions of the Employe,

 we believe the circumstances of this case have obviously exposed the Carrier to disadvantage. First of all, the Claimant's use of the Amtrak Privilege Pass revealed that, at least at some point, he probably worked for a railroad company. Even though his eligibility for the pass was the result of his working for the Union Pacific Railroad, the fact he possessed such a pass would provoke questions about his employment. And his theft occurred on an Amtrak train. While we would not contend Amtrak is a competitor, it is an entity within the same industry. Not only is there intense competition within the industry, but from transporting firms outside the industry. One of the factors which attract business is the user's confidence in the company it engages to transport its products. If there is any thought

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the company considered employed individuals who had been found guilty of theft, it is highly unlikely the services of the

 company would be utilized. The Claimant's actions showed a - ,
 total disregard for the Company's relationship to others in the
 industry and therefore to its reputation.
 Furthermore, while the overall position of arbitrators is that off-duty conduct is none of the Company's business, the Company has to be concerned when an employe has demonstrated he cannot be trusted. The Company would not have hired the Claimant if his initial application would have contained an incident of arrest for theft and there is no reason they should be compelled to retain him in this instance.

                          AC°TARD


The claim is denied.

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                            ~carol J. Zr/mperini

                            "Neutral


Submitted:

 December 29, 1989 Denver, Colorado

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