Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 8760
SECOND DIVISION Docket No. 8500
2-SOU-MA-'81
The Secold Division consisted of the regular members and in
addition Referee Paul C. Carter when award was rendered.
International Association of Machinists and
Parties to Dispute: Aerospace Workers
Southern Railway Company
Dispute: Claim of Employes:
1. That under the current Agreement, the Southern Railway Company, hereinafter
referred to as the Carrier, was wrong, arbitrary, discriminatory, capricious,
and not in keeping with the provisions of the current working Agreement
Rule #34, when they discharged Machinist M. E. Joffer, hereinafter
referred to as Claimant.
2. That accordingly, Carrier reinstate Claimant for all lost time wages
with all rights under the working agreement, and all other agreements
unimpaired, account Carrier deprived the Claimant of his contractual. rights
and benefits when they discharged him.
-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.
Parties to said dispute were given due notice of hearing thereon.
The record shows that claimant was employed by the Carrier as a machinist on the
Atlanta Shop Seniority District, with seniority date of October
31, 1966.
On March 27,
1966
claimant had made written application for any position with
the Carrier. On that application, copy of which has been made a part of the record,
the claimant left blank all questions relating to prior military service. He
signed the application form with the statement that "the foregoing statements.jare
true to the best of my knowledge and I agree that they may be investigated and'that
any misrepresentation shall be just cause for my dismissal".
On April 21,
1966,
claimant was given the Carrier's usual entry to service
physical examination. Before he was examined claimant was requested to answer the
questions asked by Surgeon's Report of Physical Examination. That form, copy of
which has also been made a part of the record, shows that when asked to state all
injuries he had had, he answered "None". Claimant further stated that he had no
deformity, physical disability or ailment of any kind; he denied ever having any
Form 1 Award No.
8760
Page
2
Docket No. 8500
2-SOU-MA-181
trouble with his back due to an injury; he denied ever having been a patient in a
hospital; he denied that he had ever been rejected for or received a medical discharge
from military service; denied that he ever had any disorder of his back or spine:;
and denied that he had ever had an operation or other procedure for condition of his
neck or back.
Claimant was hired as a machinist trainee. After completing the training program,
he made application for employment as a machinist. On that form he answered "none"
in the space asking for the branch of prior military service.
On September 21,
1976,
claimant allegedly received an injury to his back while
placing scrap bearings in a wooden bin. He filed a personal injury suit against.
the Carrier under the Federal Employers Liability Act, seeking $258,000.00 damage
plus costs. He returned to work about November 1,
1977.
On August
31, 1978,
claimant allegedly again injured his back while attempting to refit a motor on an
overhead crane. The initial FEIA suit was amended to ask for an additional $325,000.00,
plus cost.
In preparing Carrier's defense to the suit, Carrier's Division Counsel in
Atlanta, requested that a deposition be obtained from claimant. The deposition
was taken on September 21+,
1977.
The Carrier was represented by its Trial Counsel.
Claimant's attorney was also present, as was Carrier's Claim Agent. In the deposition,
claimant stated that he had suffered a back strain while in military service; that he
had enlisted in the air force; was in military service a short time, and received
a medical discharge due to back strain.
The Carrier contends that while the information contained in the deposition
was used in defending against the claimant's FELA suit, it was not made known to any
Mechanical Department representative until August 15,
1978,
when Carrier's General
Foreman, J. L. Robbins, was verbally informed of it. The General Foreman was furnished
a copy of the deposition three days later; he examined it and compared it to claimant's
pre-employment application and medical forms. The General Foreman, on September
9,
1978,
notified claimant to report on September
15, 1978,
"for a preliminary investigation into your employment with Southern Railway Company and information I have just
been made aware of concerning your previous military experiance and subsequent
medical discharge. You may have present for the investigation, your duly accredited
representative (local chairman or committeeman should you so desire."
Upon request of the Local Chairman, the preliminary investigation was postponed
to October 20,
1978,
at which time it was conducted, and on the same date the
claimant was notified:
"I refer to the preliminary investigation I held with you this
date, October 20,
1978,
at which time you were charged with
falsification of your pre-employment and medical application
forms by failure to disclose your prior back injury,
hospitalization for back injury and subsequent medical
discharge from military service.
Form 1
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Award No.
8760
Docket No.
8!500
2-SOU-MA-'
8'1
"Based on the facts developed during this investigation it
is my opinion that you are guilty as charged, and this
letter is to confirm the statement made to you at the
preliminary investigation, that for this offense you are
dismissed from service of the Southern Railway.
I acknowledge your verbal request for a formal investigation
at the time of the preliminary; however, it is my decision not
to hold the discipline in abeyance because I consider this to
be a major offense, as outlined in Rule 34, paragraph C of the
current work agreement."
Written request was made by the Local Chairman on October 23,
1978,
for formal
investigation in accordance with Rule 34(c) of the applicable Agreement. Formal
investigation was set for 1:30 P.M., October 26,
1978.
The Local Chairman, on
October 24,
1978,
took exception to the date as being outside the time limits of
the Agreement, but requested further extension. After several postponements the
formal investigation was held on November 21, 1978, with the Superintendent of
Atlanta Motor Shop acting as conducting officer. Claimant was present at the
investigation and was represented.
A copy of the investigation conducted on November 21, 1978, has been made a
part of the record. We have carefully reviewed the transcript and do not find that
any of claimant's substantive procedural rights was violated.
From our review of the transcript, including claimant's statement, we are
convinced that claimant did falsify his application for employment that he filled out
on March 27, 1966, and the Surgeon's Report of Physical Examination.
Many awards of this Board have held that employes who falsify applications for
employment are subject to discharge, regardless of the time lapse between the date
of application and the date of discovery. See Second Division Award 6391 and others
cited therein.
A W A R D
Claim denied.
Attest: Executive Secretary
National Railroad Adjustment Board
NATIONAL RAIIROAD ADJUSTMENT BOARD
By Order of Second Division
By--~c~h..~
/; semarie Brasch - Administrative Assistant
Dated ~ t Chicago, Illinois, this 2nd day of September,
1981.