Form 1 NATIONAL RAILROAD ADJUSTMENT BOAF.D Award No. 9328
SECOND DIVISION Docket No.
9504
2-CR-MA-182
The Second Division consisted of the regular members and in
addition Referee Edward M. Hogan when award was rendered.
( International Association of Machinists and
Parties to Dispute:
( Aerospace Workers
(
( Consolidated Rail Corporation
Dispute: Claim of Employee:
'
1. That the Consolidated Rail Corporation b e ordered to restore Machinist
W. E. Brown to service and compensate him for all pay lost up to time
of restoration to service at the prevailing Machinist rate of pay.
2. That Machinist W. E. Brown be compensated for all insurance benefits,
vacation benefits, holiday benefits, and any other benefits that may
have accrued and were lost during this period, in accordance with
Rule
7-A-1
(e) of the prevailing Agreement which was effective
May l~, 1979.
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 employee 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 Hoard has jurisdiction over the dispute
involved herein.
Parties to said dispute waived right of appearance at hearing thereon.
Claimant was dismissed from the service of the Carrier following a formal
investigation on the charges of substituting someone other than himself to take
a re-employment physical for the Claimant prior to his being reinstated to the
service of the Carrier. The Claimant had originally been employed by the
Carrier on November 24,
1973.
On December
5, 1979,
Claimant had been dismissed
from service of the Carrier on other charges. In April of
1980,
the Carrier
reinstated the Claimant to its service at the behest of the Organization's
request for leniency with respect to Claimant's dismissal. The only proviso
that the Carrier attached to its reinstatement was that the Claimant successfully
complete a return to work physical examination. On October 28,
1980,
an
individual, purportedly and professing to be the Claimant, took the return to
duty physical. Claimant then took the approved medical form issued subsequent
to the physical being given to someone other than the Claimant, to the diesel
locomotive shop. Prior to the Claimant commencing his first scheduled day of
work, it was determined by the Carrier that the person who took the physical
was not the Claimant. The Carrier immediately withheld the Claimant from
service, and notified him that he was to appear at a formal investigation on
the charges of fraudulent and dishonest conduct. The investigation was twice
postponed at the Organization's request, end, finally, wa; held on June 12, 1980,
at which time the Claimant did not attend. However, he was represented by two
(2) representatives of the Organization. Following the formal. investigation,
Form 1 Award No. 9328
Page
2
Docket No.
950+
2-CR-MA-182
Claimant was notified that he had been dismissed in all capacities from the
service of the Carrier.
The Claimant
contends
that there is insufficient credible evidence to prove
the charges made by the Carrier. We disagree, and hold that the record indicates
that the Carrier, through a fair and impartial hearing, adduced sufficient
credible evidence
°n
which to support the charges. This Board has consistently
held, on numerous occasions, that we will not upset the findings in a disciplinary
case which are based on substantial
we
credible evidence, absent arbitrary,
caprice and/or abusive discretionary behavior on the part of the Carrier (see
First Division Awards,
1311+2
and
1552,
Second Division Awards,
2269
and
3960,
and Third Division Awards,
11795
and
1189,
among many others).
Claimant also contends that he did not receive a fair and impartial hearing
due to the fact the Carrier refused to grant a third continuance of the formal
investigation. Two prior postponements had been granted, and the third request
for postponement was made after the commencement of the investigation. We
find that the Claimant and the Organization had more then sufficient time to
prepare a defense, and that Claimant's failure to attend the proceedings were
done so at his own peril (see Second Division Awards,
133+, 5987, 5988
and
6499).
Claimant further contends that he was wrongfully taken out of service due
to the fact that he had never actually performed any service after having been
granted the opportunity to return to service on a leniency basis following a
previous dismissal. We find no merit to this contention, and further find that
the Carrier acted reasonably in this case.
The Organization also contends that the wording of the charge implied a
preconceived impression of the Claimant's guilt. We cannot agree with this
contention, as we feel that the charge sufficiently describes the conduct of
which Claimant was to face at the formal investigation. The requirement for
a fair and impartial hearing pre-supposes that the Claimant has sufficient
notice of the complete and accurate charges he will be facing. A clear and
concise charge of alleged behavior is an integral element of a fair and
impartial hearing. We find that the Carrier has met its burden.
This Board has held in many awards that lying and dishonesty on a preemployment application is an extremely serious offense for which the penalty of
dismissal will be found to be quite reasonable. In Third Division Award No.
22369
(Referee George S. Roukis), a similar situation existed:
"The record clearly shows that Claimant committed a very
serious offense. It was a willful manifestation which
created an employment relationship predicated upon fraud
and deceit. The law has invariably held such transactions
to be revocable. Accordingly, we are compelled under the
particular facts and circumstances herein to deny the claim."
We find similar fasts to exist here, and wish to strongly reaffirm that
pree·nplcyment application falsehoods and dishonesty or concealing of a physical
condition on the application for employment is a serious and grievous offense
for which dismissal will be upheld.
Form 1
Page
3
Award No. 9328
Docket No.
950
2-CR-."Q.A-' 82
Examining the Claimant's prior employment record, end considering that he
was being restored to service following an earlier dismissal on the basis of a
request for leniency, we uphold the dismissal as meted in this case as fully
reasonable.
AW AR D
Claim denied.
Attest: Acting Executive Secretary
National Railroad Adjustment Board
BY.
NATIONAL RAILROAD ADJUST'MT BOARD
By Order of Second Division
Rosemarie Brasch - Administrative Assistant
Dated at Chicago, Illinois, this 15th
day of December,
1982.