AWARDS 83 - CONDUCT UNBECOMING AN EMPLOYEE - NO DAMAGE TO CARRIER

Third Division Award No. 21293 (McBrearty)

"Turning then to the case at hand, the Board notes that an employe may commit improper acts which subject him to disciplinary action while he is on duty or off duty. The most common cases involve on-duty misconduct. However, employes are also frequently disciplined or discharged for committing improper acts while off duty. In the latter type of cases, however, in order to justify disciplinary action, including discharge, there must be some evidence of damage to the Carrier.

"Looking at the record as a whole, the Board finds in the instant case that there is not substantial evidence to indicate that Claimant's offense injured his effectiveness on the job, or damaged Carrier's reputation in the marketplace or in the industrial community.

"The generally understood principle in the industry is that a Carrier may not discipline an employe for what he does off duty. To do so would constitute an invasion of the employe's personal life by the Carrier and would place the Carrier in the position of sitting in judgment on neighborhood morals, a matter which should be left to civil officers.

"An exception to this principle permits discipline when the off-duty conduct affects the employer-employe relationship. Critical to such an exception, however, is the guiding principle that the outside activity, in order to be subject to discipline, must definitely relate to Carrier's operations. By this it is meant that the misconduct must have arisen out of plant activities or carry with it a serious threat of disrupting the orderly, efficient, or safe conduct of the Carrier's business. Such has not been shown by substantial evidence in the instant case."

First Division Award No. 23818 (Dennis)

". . . to dismiss Claimant on an article in the local newspaper and it did not present evidence in the record to demonstrate in any way how the newspaper article had a negative impact on the Burlington Northern, its customers, or its business. In order to discipline an employee for off-duty behavior, some nexus between the adverse behavior and a negative impact on the Employer's mission must be demonstrated. No such connection was demonstrated in this case. It is the Board's decision, therefore, that Carrier should reinstate Claimant to the roster. . . ."