Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 7+30
SECOND DIVISION Docket No. 7127
2-SOU-CM-'
78
The Second Division consisted 'of the regular members and in
addition Referee Nicholas H. Zumas when award was rendered.
( System Federation No. 21, Railway Employes'
( Department, A. F. of L. - C. I. 0.
Parties to Dispute: ( (Carmen)
(
( Southern Railway Company
Dispute: Claim of Employes:
1. That under the current Agreement Cayman Student Mechanic A. G.
King, East St. Louis, Illinois was unjustly dismissed from service
February 27, 1975.
2. That accordingly the Carrier be ordered to return Student Mechanic
A. G. King to service with all rights unimpaired and that beginning
February 27, 1975 he be paid for all time lost.
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, 193+.
This Division of the Adjustment Board has jurisdiction over the dispute
involved herein.
Parties to said dispute were given due notice of hearing thereon.
Claimant was charged with falsifying his application for employment and
his pre-employment Medical. Examination Form. After investigation and hearing,
Claimant was dismissed from Carrier's service.
On his Employment Application dated April
8,
197+ Claimant described his
general health as "Outstanding", stated that he had lost no days due to
sickness in the past five years, and denied having any "physical deformities
or disabilities." On his pre-employment Medical Examination Form dated
July 11, 197+ and signed by Claimant, indicated that he was not suffering
from arty of the conditions listed including dysentery, bowel trouble, or
stomach trouble. Claimant's answer to the question of whether he was drawing
disability benefits was "no".
Form 1 Award No.
71+30
Page
2
Docket No.
7127
2-SOU-CM-' 78
A letter dated January
14, 1975
was sent to Carrier's Master Mechanic
from an insurance company advising that it had been paying disability
benefits to Claimant under a disability policy, and wanted to confirm the
nature of Claimant's employment since medical records indicated that he was
in Carrier's employ. Further investigation by the Master Mechanic revealed
that Claimant applied for disability benefits on May
18, 197+
and payments
were begun after a 30 day waiting period. The basis for the payments was
"Inflamatoxy Bowel Disease", "Intractable Diarrhea" and "Colitis".
In the meantime, Claimant was admitted to the Veterans Hospital from
January
14,
to
27, 1975.
He reported for work with a statement signed by a
hospital doctor stating that Claimant "is presently being treated at the
John Cochran Hospital for Gramulomatous colitis-and should be able to return
to work on Monday, January
27, 1975."
After receiving Claimant's consent Carrier received Veterans Hospital
records showing that Claimant had been hospitalized on three separate
occasions: May
20
to June
4, 197+;
October
24
to
26, 197+;
and January
14
to
21+, 1975.
The "history" taken by the doctor on Claimant's first admission is
significant:
"This is the first JG VAH admission fox this
25
year old Black
male who entered with a one year history of intractable diarrhea.
The patient was in apparent good health until May
1972
when
he began having watery diarrhea of 10 stools per day, not
nocturnal. A month later he noted the onset of severe cramping
abdominal pain with the onset of tenesmus and diarrhea, relieved
with defecation. The patient was begun on Librium, Prednisone
and Lomotil with dramatic relief of symptoms for several weeks
but the pain and diarrhea returned and became refractory to the
therapy. Currently over the past several months he has had 10
stools per day less watery but still not formed. He also
complained of associated weakness and denied arty melena or
hematochezia but has occasional specs of blood in the stool.
He had a
1+4
pound weight loss over the past year with good
appetite but patient does not eat secondary to having abdominal
pain and tenesmus and diarrhea after eating."
Fran the above the Board cannot help but conclude that Claimant
knowingly falsified his application fox employment and his pre-employment
Medical Examination Form, and that such false statements were material.
Form 1
Page
3
Award No.
7+30
Docket No.
7127
2-SOU-CM-'
78
As was stated in Second Division Award No.
5959:
"As a general proposition, Carrier is entitled from prospective
applicants for employment, through an application fox employment,
to be put on notice of
arty
fact or factor which would a) be grounds
fox rejecting the applicant or b) cause Carrier to investigate
further before employing the applicant."
With respect to the organization's contention that Claimant did not
receive a fair and impartial hearing, the Board finds such contention to be
without merit. The fact that the Master Mechanic investigated the matter,
was the hearing officer, and rendered the initial decision to discipline is
not, in and of itself, tantamount to an unfair hearing that mandates either
a remand for a new hearing ox a sustaining award. Patent pre-judgment and
prejudice must also be clear. After carefully reviewing the record,
particularly the hearing transcript, the Board finds that Claimant's due
process rights were not violated.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
By
//~L..~'
o arie Brasch - Administrative Assistant
Dated a Chicago, Illinois, this 6th day of January,
1978.
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