STATEMENT OF CLAIM: Claim of the System Committee of the Brotherhood (GL-5299) that:
OPINION OF BOARD: Claimant Emmett C. Green. Jr., made application for employment by the Carrier on November 7, 1961, on Carrier's Form 3, "Application for Employment" and Form C, "Medical Examination Form, Statement of Applicant." Carrier developed information that Claimant had falsified his application as follows:
In answering the questions on Medical Examination Form "C" Claimant answered the question "Have you ever filed a lawsuit * * * because of an injury?", Claimant answered "No."; to questions asking if the applicant had ever been injured, had a back injury, back or leg pain or had an X-ray, Claimant answered "No." In point of fact the Carrier, after having made written inquiry of past employers, was informed that Mr. Green had been injured, had filed a Workman's Compensation claim, had suffered injuries and had had X-ray examinations. On September 19, 1962, the Carrier notified
Claimant to appear for a formal investigation as per a letter written to Petitioner by Baggage Agent, V. F. Joel. Claimant Green, accompanied by Local Chairman L. D. Graham of the Clerks' Organization, appeared at the hearing. The Organization excepted to the charge which stated, inter alia, " * * * You are charged with falsification of your application for employment dated November 7, 1961.", on the ground that the said charge was not clear, and precise.
The crucial issue in the case is whether or not the Carrier's notice to Claimant to appear for a formal investigation on the charge that he falsified his application for employment is sufficiently clear and precise to meet the requirements of Rule 20 of the Agreement, quoted supra.
The principle of law concerning the adequacy of a Notice of Hearing is both clear and represents a fundamental right. It is succinctly set forth in the Monograph Series: 1, entitled "Due Process On The Railroads, Revised Edition" by Joseph Lazar of the Institute of Industrial Relations-University of California, and since it is germane to the case at bar, is being quoted below with approval by the Board:
Awards Nos. 5183 and 17460, First Division, further amplify the principle that "The charges against an employe must be broad enough to include the cause for which he was dismissed and sufficiently specific to acquaint the employe of the matters to be investigated. The charges preferred must inform the employe of the acts and conduct complained of, and the time and place of their occurrence."
The Carrier advances the interesting argument that even if it be admitted arguendo that the notice does not contain specific information sufficient to meet the requirements of "due process" the fact that a fraudulent statement was made in an application for employment is enough, standing alone, to justify dismissal.
This is so because when the Claimant applied for a job be assented to the Carrier's condition on the application blank that any fraudulent statement whenever discovered provides ground for immediate dismissal. Under these circumstances the Carrier contends that there was no obligation to grant the Claimant a hearing at all and therefore whatever defects may have developed either in the notice or in the hearing should not be allowed to disturb its decision of dismissal. 11794-3 52
The short answer to this argument is that since the Carrier elected to grant a hearing it can now not be heard to complain that the notice it sent Claimant, setting up the hearing it chose to hold, should not be evaluated as to its substantive adequacy. The Claimant appeared in response to the Carrier's notice of investigation. The notice was vague, general in nature, and on its face, did not meet the elementary requirement of stating a specific charge, in advance of the hearing which would enable the Claimant to make a defense. This principle is not a technicality, but rests on the plainest principles of justice and fair play; it puts into effect the constitutional requirement of "due process" and secures to every man his day in court in advance of and as necessary to, any judgment against him.
The Third Division, in Award 8992, on a strikingly similar state of facts, has found that the Carrier violated its Agreement when it failed to provide a Claimant in its notice of the charge against him before the investigation of the precise violations he is supposed to have committed.
How could Claimant prepare a defense to a charge of falsely answering questions on his application for employment when the form asks approximately 24 separate questions and the said notice does not specify which question or questions were falsely answered?
It is significant, in this connection, to note the actual language used by the Carrier in its letter of dismissal which was sent to Mr. Emmett C. Green by V. F. Juel on October 3, 1962 and appears in the record on page 11:
The Carrier, by its own words, predicated its dismissal of the Claimant on "A careful reading of the transcript" to arrive at the conclusion that Claimant falsified his application for employment. There cannot be a formal investigation and a hearing pursuant thereto at which a transcript is taken without meeting the essential condition precedent of providing the respondent with a specific charge, in advance of the said hearing, informing him of the acts and conduct complained of, and the time and place of their occurrence.
It would appear to be uncontested that Claimant did in fact falsify the answers he provided the Carrier on both his application for employment and the medical application. It would seem unfair to reward him for the frauds he committed by granting him back pay. Under the circumstances of this case it would therefore seem sufficient for the claim to be sustained only so far as to restore him to his job with all his other rights unimpaired, without back pay.
FINDINGS: The Third Division of the Adjustment Board, upon the whole record and all the evidence, finds and holds:
That the Carrier and the Employes involved in this dispute are respectively Carrier and Employes within the meaning of the Railway Labor Act, as approved June 21, 1934; 11794--4 53
That this Division of the Adjustment Board has jurisdiction over the dispute involved herein; and
That the Carrier violated Rule 20 of the current Agreement between the parties.
Claimant by his own voluntary act severed his employment relationship with the Carrier. He removed himself from the ambit of the collective bargaining contract, including any right to a hearing under that Agreement. No infirmity in the hearing procedure could re-establish the basic employment relationship. No affirmative waiver of such a fundamental defense exists in the record, and it should not be found by implication.
Therefore, any hearing held in the matter was not a hearing under the contract and Rule 20 had no application. Carrier was not estopped from asserting this defense because it extended Claimant the courtesy of an inquiry it had no legal obligation to conduct.
Furthermore, in the absence of an employment relationship or contractual coverage, the Board had no power to act in the premises since its authority is limited under the Railway Labor Act to disputes between employes and carriers and to the interpretation and application of contracts. Being jurisdictional, this could not be waived and could have been noted by the Board of its own motion even if not raised by the Carrier.
The application papers included two forms. Form 3 contained questions concerning basic biographical and experience data and related information. Thereupon Claimant supplied false medical information in his own hand. Form C was medical and Claimant falsified four answers.
Since medical and personal injury information was requested in Form 3, and Form C was exclusively medical, it is difficult to conclude that Claimant 11794--s 54