Form l NATIO1TAh RAILROAD ADJUSTMi:,TdT BOARD Award No. 7959
SECOND DIVISION Docket No, 707
2-B&o-FO-'79

The Second Division consisted of the regular members and in addition referee Abraham Weiss when award eras rendered,

( System Federation No. 4, Railway Employes'

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

Parties to Disrute: ( (Fireanen & Oilers)

(

( Baltimore and Ohio Railroad Company

Dispute: Claim of llirployes:

1, That under the current Agreement Laborer Roy R. Roi~:e was unjuste~r dismissed from the Baltimore and Ohio Railroad Cor.pany effective May 109 19770

2, That accordin.,ly the BalU:,i~uore and Ohio Rai?Lroad Company be ordered

to reinstate this ezr.-e;loye vrith seniority rights u-n-laripaired, made

whole for all vacation rights, made whole for all health and velfare

insurance benef itss pension benefits including Railroad Retirement

and uzle.aplcyMent insurance, and rr~.de vffiol e for all other benefit;;;

including Z~ragcs that he would 'Lave earned during the time he was

held out of services also that he be provided uith 12interest

in all lost wages,

Findin s

The Second Division of the Adjustment Board, upon the whole record anJ. all the evidence' finds that:

The carrier or carriers and the etrploye or e_riployes involved in this dispute are respectively carrier and employe vri.thin the meaning of the Railway Labor Acv as approved June 21, 193+.

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 was dismissed on May J_0, 1977 for falsifying his employment application in that he had answered "No" to a question on the application form, "Have you ever been convicted of a crimes)?"

Petitioner claims that the dismissal was in violation of the Agreement in that Claimant was dismissed without an investigation or hearing to deter-mine whether Claimant was guilty of the charges; and that under Rule g he was entitled to a hearing as a, matter of right so as to defend himself against, the Carrier's charges. Petitioner argues that nowhere in the record has the Carrier substantiated the, basis of its dismiss al of Claimant nor has it documented its statements concerning Claimant's criminal conv:i.ctions.
Form 1 Award No.7959
Page 2 Docket No. 7807
2-B&0-Ii 0-' 79
Rule 9 reads:

"Employer disciplined will be advised of the causes fox such act-ion in writing when requested. No employer Zrill be dismissed ,~rithout first being given a fair and impartial hearing. _En?ployes may, however, be held out of service pending such hearing,"

Petitioner also argues a violation of Rule 15 - Seniority, which reads:

"Seniority begins at the time the employe's pay starts."

Furthex~nore, it acids, the applicable Agreement does not provide for a probationary period.

Petitioner concludes that the company's application form., issued bar the company, cannot conflict with the protection of a fair and impart:i.wl hearing afforded enployees in aLle g.

Carrier contends that its investigation determined that Clai..mant had several convictions for criminal offenses, although Claimant had stated or, the application form that he had never been convicted of a cr:isne; that Cla:unant's service -~ws texi.porary pending approval or rejection of his application and -that this had been the company's practice for 25 years; that Claimant was not an "employee" for purposes of the Agreement; float Rule 9 is not applicable; and that the Organization's arglzr:ent that Claimant had established seniority under Pule 15, "in the absence of a probationary period" -vra.s not ,raised on the property and eras, therefore, inadmissible.

Carrier also states that the application form, signed by Claimant, includes the following:

"I hereby certify that the answers in this application are true and complete. I understand that arty falsa_fication, misrepresentation, or significant; omission may constitute just cause for dismissal, regardless of when discovered.

I voluntarily give C&,-OIB~,-O/WP.I the right to conduct a thorough investigation of my background and past employment, making such inquiries as may be required to determine my qualifications and suitability. And I release from all liability or responsibility all companies, corporations ox individuals supplying such information.

I further understand and agree that my employment is temporary pending the approval or rejection of this application and that this application may be rejected by the company for arty cause which it may deem proper."

Form 1 Award No. 7959
Page 3 Docket No. 707
2-B&o-FO-' 79

Carrier concludes that Claimant was not dismissed but that his application fox employment was rejected because he had "deliberately falsified, misrepresented and omitted the information ... that he had been previously convicted of crimes".

Finalh,r, Carrier cites Awards in which this Board has upheld Carrier's actions in rejecting the application o' an e:nployce and his dismissal from service in cases where the individual falsified the employment application, and in rejecting an applicant without a hcarin,~ under circumstances similar to those involved in they instant case. Carrier cites i n particular Third Division Award x;-391 in which the Board stated:

"This Board has held that an employe working during the period reserved to the Carrier to aryrove or disapprove his application, is a probrtiona_ry employe arid -if his aprlication is denied he gains no rights under the Agreement. Awards 3152, 3>~-'C.'1

A review of the record discloses that Claimant filed his application on April 1, 177; he started work on April 1LI-, 1977; and that his application was disapprovec.~. AAay 10, 177.

On this property, there is no probationary ina1e as such. The Board has held that -~%Lere an Agree3rtent does not provide a specific probationary period nor a specific period of tiine for a co:aoany to cheer, the info rma"Clion supplied by an applicant on an employment application form, "The carrier has a reasonable length of t x::e for this purpose and, while doing so, the appl icant is not considered an enploye in the service of the Carrier for the purposes of the Agreement and can gain no rights thereunder." (Second Division Award 1715, Referee V7enke, and Awards cited therein.)

In another case in which the Agreement states, as does the Agreement here involved, that an employee's seniority starts at the time his pay starts, the Board concluded "it is obviously conditioned upon the approval of the employment application". (Second Division Award 7713, Referee Lieberman.)

In signing; the contpany's application form, Claimant agreed that his employment was temporary pending approval or rejection of the application,, and that the company could reject the application "for any cause which it may deem proper". The Board in First Division, Awards 10 196 (Burgue) and 15 247 (Bushnell) has clearly held that employees placed in service under similar conditions as those here involved are in temporary service; are not "employees" for purposes of the A gr eement; and that their continued employment is at the discretion of the company until such time as the application receives final approval.
Form I Award No. 7959
Page 4 Docket No. 7807
2-Ba:o-FO- `79

Carrier 9.n the instant case disapproved Claimant's employment application 26 working days after his hire. Absent a time requirement for the disapproval of an application fox, employment. such action rmzs t be taken within a reasonable time or the employee will be deemed to have been accepted. (Third Division Award 3152 arnonL, others). In this case, Carrier's decision rust be regarded as having been made within a reasonable period of time.

After careful review of the record, the Agre:ment and, prior Awards of this Board,, the claim will be denied.

A W A R D

Claim denied.

NATTOTHAZ RAILROAD ADJCTS'~i~i~'~FT BOARD

By Order of Second Division

Attest: Executive Secretary
National Railroad Adjusti-.qent Board

~-- ~__~`

y ~' ,___. _ ~,
~;o;~emarie Brasch - Ad,Y;iinistrative Assistant,

D=3ted (t

Chicago,, 117..inois, this 13th day of June, 179·