The Second Division consisted of the regular members and in
addition Referee Mortimer Stone when the award was rendered.
SYSTEM FEDERATION NO. 72, RAILWAY EMPLOYES'
DEPARTMENT, A. F. of L. (ELECTRICAL WORKERS)
DISPUTE: CLAIM OF EMPLOYES: 1. That under the current agreement Electrical Worker Helper Alexander Raymond was unjustly dismissed from the service on June 25th, 1954.
2. That accordingly the Carrier be ordered to reinstate this employe in the service with his seniority unimpaired and with compensation for all time lost retroactive to the aforesaid date.
EMPLOYES' STATEMENT OF FACTS: Alexander Raymond, hereinafter referred to as the claimant, was employed as an electrician on February 16, 1945 by The Central Railroad Company of New Jersey, hereinafter called the carrier. The claimant continued in the service as an electrician until his occupation was changed to that of an electrician helper on February 7, 1949 at Communipaw Engine Terminal, New Jersey, whereat he remained in that service more than five years, or for a total of over nine years.
The carrier made the election to summon the claimant, on June 15, 1954, to submit to a question and answer hearing and a copy of the transcript of such hearing is submitted herewith and identified as Exhibit A.
The carrier then elected to dismiss the claimant from its service on June 25, 1954 and which is affirmed by the copy of "EMPLOYE'S SERVICE RECORD REPORT," submitted herewith and identified as Exhibit B.
This dispute has been handled with the appropriate officers of the carrier, including up to and with the "highest designated Railroad official," with the result that he has declined to adjust it.
The agreement of October 1, 1947, as subsequently amended, is controlling.
POSITION OF EMPLOYES: It is submitted there is no dispute between the parties that the provisions of Rule 43, contained in the current agreement, were in force and effect at the time the carrier employed the claimant on
If this carrier had known of these two serious injuries that claimant had suffered before February 16, 1945, the date of hiring, it would no doubt have had an important effect on carrier's decision as to whether or not he should be hired. There is no doubt but that claimant knew of this nor is there any doubt but that he remembered these injuries. The later one occurred January 15, 1945, only a month before, as a result of which he was taken to the hospital, X-Rays were taken and compensation was awarded.
Carrier contends that claimant made a false statement on a very material matter in his application for employment and under the terms of this employment the action taken of dismissal was proper. The claim should therefore be denied in its entirety.
FINDINGS: The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:
The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employe within the meaning of the Railway Labor Act as approved June 21, 1934.
This Division of the Adjustment Board has jurisdiction over the dispute involved herein.
In claimant's application for employment he stated that he had never been injured. Some nine years afterward, in connection with a suit he had brought against carrier for injuries allegedly received while in its employ, claimant admitted in a deposition that he had twice been injured and received compensation therefor in prior employment.
Upon formal investigation of the charge of falsification of his employment application he admitted the injuries and compensation therefor and the false answer in his application and said "it was false but the reason I made the statement was because I was in good physical condition and did not believe it necessary to talk about my former injuries." Thereupon he was dismissed from his employment.
Carrier has the right and duty to use care in its selection of employes, to protect the public, its other employes an itself. In order so to do it may make inquiry as to any pertinent record of the applicant. It must be concerned with his physical, moral and mental fitness for the work. The provisions of Rule 43 as to examination and statement which may be required of applicants are not a prohibition of other pertinent inquiry and investigation by carrier in its selecton of employes.
A record of several recoveries for injury in previous employment may have other implications than that of physical disability and is a proper subject of inquiry and investigation. Such investigation as to prior injuries cannot be made in the absence of knowledge of them. To deny carrier the right to discharge on learning of false denial of prior injuries is to deny it the right to investigate the true record of an applicant, and that right is not waived by lapse of time in the absence of knowledge of the false answer.