Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 10145
SECOND
DIVISION Docket No. 10157'
2-SP-MA-'84
The Second Division consisted of the regular members and in
addition Referee Hyman Cohen when award was rendered.
( International Association of Machinists and Aerospace Workers
Parties to Dispute:
( Southern Pacific Transportation Company
Dispute: Claim of Employes:
1. That the Carrier improperly dismissed Machinist R. G. Fauntleroy
(hereinafter referred to as Claimant) from service on April 2,
1981.
2. That, accordingly, the Carrier be ordered to restore Claimant to
service with seniority and service rights unimpaired with compensation
for all wage loss.
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 employes 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 waived right of appearance at hearing thereon.
The Claimant was employed by the Carrier as a Machinist at its Sacramento,
California, Locomotive Works. He entered the service of the Carrier on November
20, 1978. Following a formal investigation that was held on March 23, 1981,
the Claimant was dismissed from service for dishonesty because he falsified
portions of his employment application and pre-employment physical record.
A threshold issue has been raised by the organization which must be
resolved before consideration can be given to the merits of the instant
dispute. The Organization contends that the Carrier failed to respond to its
initial appeal "within sixty (60) days from the date same is filed" as required
by Rule 38(b) of the Agreement. Contrary to the position of the organization,
the tolling of the sixty (60) day period for the Carrier's response did not
begin on the date set forth on its letter of appeal dated July 24, 1981. If
that were so, it would mean that the tolling would occur even before the
Carrier received notice that there is, in fact, an appeal from its decision.
It may very well be true that notice of the appeal is effected upon mail or
posting. However, the date the appeal is received by the Carrier constitutes
the filing of the appeal under Rule 38(b) for the purpose of triggering the
sixty (60) day period for the purpose of responding to the appeal. Since the
Organization's appeal dated July 24, 1981 was received by the Carrier on July
28, 1981, the Carrier's response which was sent on September 24, 1981 satisfied
the sixty (60) day period provided in Rule 38(b).
Form 1 Award
No. 10145
Page 2 Docket
No.
10157
2-SP-MA-'84
Turning to the merits, the Board has concluded that the Claimant falsifies!
his pre-employment physical examination and his employment application, both
of which were filled out on October 31, 1981. Despite a previous industrial
injury, the Claimant answered "No" to the query, "Have you ever been injured
or suffered an amputation?" which was set forth on a pre-employment physical
examination record
. Asked on the employment application, when he had last
been attended by a physician, the Claimant's written response was "October 1
(cold)." However, on October 13, 1978, the Claimant was examined by his
attending physician who confirmed that he had an underlying "asthmatic condition"
and "chronic bronchial asthma." It is unreasonable to believe that in filling
out the employment application on October 31, 1978, the Claimant remembered
that he was attended by a physician for a cold on October 1, 1978 but was
unable to recall a medical examination twelve (12) days later, and roughly
two (2) weeks before the date he completed the employment application. The
Claimant's intent to conceal his chronic asthmatic condition is reinforced by
denying on the same application that he "ever had or been told" that he
suffered from a disease of the throat or lungs. In addition, he failed to
answer the question "Have you ever had asthma?" The Board believes that the
question was left blank by the Claimant because he was aware that had he
answered it truthfully, whatever chance he had of being employed by the
Carrier would have been placed in jeopardy. The Claimant's failure to
disclose his chronic asthmatic condition in answer to the specific
information called for on the pre-employment physical examination and
employment application cannot be considered immaterial in the Carrier's
determination to hire the Claimant. Knowledge of 'such a chronic ailment must
be considered crucial and of great weight in the Carrier's decision to employ
the Claimant.
Based upon the record, the Board infers that the Claimant intentionally
concealed his chronic asthmatic condition from the Carrier for the purpose of
gaining employment in November 1978. As stated in Public Law Board No. 1952,
Award
No.
34:
"It is clear from the substantive evidence of probative
value that Claimant falsified his application for employment. As such, Carrier was deprived of its right to
deny Claimant employment in his occupation if it had been
aware of his asthmatic condition, employing instead an
applicant who did not have asthma and who could carry
out all of the assignments of his craft."
The Board is persuaded that the penalty of dismissal should not be disturbed.
Form 1
Page 3
Award No. 10145
Docket No. 10157
2-SP-MA-'84
A W A R D
Claim denied.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Second Division
ATTEST:i
Nancy J. ~er - Executive Secretary
Dated at Chicago, Illinois, this 31st day of October 1984.