( Department, A. F. of L. - C. I. 0.

          Parties to Dispute: ( (Carmen)


                        ( Norfolk and Western Railway Company


          Dispute: Claim of Employes:


                  1. That under the Rules of the Current Agreement Apprentice Car Repeiser W. T. Taylor was unjustly dismissed frog the service of. the Norfolk and Western Railway Company by written notice dated March 1, 1971.


              2. . That accordingly the Norfolk and Western Railway Company be

              ordered to restore W. T. Taylor to service with all service

              rights, seniority, contractual "fringe" benefits, and pay

              for all time lost from February 23, 1971.


          Find ings


i O
 ,y ~ The Second Division of the Adjustment Board, upon the whole record
          and all the evidence, finds that:

a
          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 Jane 21, 1934.


          This Division of the Adjustment Board has jurisdiction over the dispute involved herein.


          Parties to said dispute waived right of appearance at hearing thereon.


          Claimant filed an application for employment in 1967. Question 19 of the application stated: "Have you ever been convicted of a cries?* Claimant answered, "No, except traffic violations." Following this question on the application is a statement in the >ame size type as the question, as follows: "Ilfnlly and definitely understand that any false statement or misrepresentation herein will justify my dismissal

. Eros the service without an investigation,* regardless of when such fact
          airy be discovered by the Company." Role 42 of the Agreement headed

          APPLICANTS FOR EMPLOYMENT states that applications shall be approved or

          disapproved within 60 days after applicant begins work, "---except in

          event of applicant giving false information., approval may be revoked

          at any time." In 1971, the Carrier learned for the first time that the

          claimant had been convicted of a crime precious to filling out his

          application.

For' 1 Pa ge 2

Award No. 6743

Docket No. 6489

2-N&hI-CM-' 74


The Carrier contended that on technical grounds the claim should be dismissed because the remedy sought on the property is different from the remedy requested in the claim before this Board. The Carrier also argued on the merits that Rule 42, read together with the statement following question 19, on the application is self executing and requires no investigation. Despite this a hearing was held at which the claimant testified that the answer to qestion 19, was false.

 The Organisation contended that the change in the claim was not serious enough to justify a dismissal; also that the pnssage~of tine before learning of the false answer overcame the effect of the false statement. The claimant testified that he did not reveal the criminal conviction because the judge, now dead, had said that as a juvenile,, the record was closed.

    Third Division Award No. 17222 submitted by Petitioner favors the

avoidance of "super technical" pos_itione_so that disputes may be resolved
 on the merits .-~It also indicatta that the technical -objection my be
 one of degree and not necessarily prejudicial. In this case, the result.

 on the merits is self evident and we prefer to resolve the dispute on that basis rather than to become bogged down with considering the effect of the change as argued by the Carrier.

 A s stated in prior Awards, an applicant owes the Carrier the right to know the truth. A truthful statement in this case as testified by claimant my not after investigation have been detrimental to his. In addition, after being employed, claimant should have known about Rule 42.

 On the basis of the Record, the statement in the application and Rule 42, claimant has no meritorious defense to overcome an admitted false statement that coapletely misled the Carrier, Second Division Awards No's. 5959, 6391, 6013, 6381 and Awards cited therein. In several of these cases a longer period of tine elapsed than in this case before the Carrier learned-the truth and dismissed the employ@ who gave false information.
A WA R D
Claim denied.

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division


Attest: Executive Secretary
        National Railroad Adjustment Hoard


By.
    ~osemarie Breach - Administrative Assistant


Dated at Chicago, Illinois, this 30th day of July, 1974.

 Igoe