(Brotherhood of Railway, Airline and Steamship ( Clerks, Freight Handlers, Express and ( Station Employes PARTIES TO DISPUTE: (Burlington Northern Inc.

1. Violated the rules of the March 3, 1970 Rules Agreement by dismissing Mr. Walter Merritt, Jr., Clerk, Kansas City, Missouri, from the service of the Railway Company effective November 4, 1970, without giving him the benefit of an investigation or hearing, as required by the Agreement.

 2. Shall now reinstate Mr. Walter Merritt, Jr. into the service of the Railway Company with seniority and other rights unimpaired, and payment for all wage loss, commencing November 4, 1970.

 OPINION OF BOARD: The record clearly shows that on November 20, 1972
 the Organization instituted proceedings in the
 instant matter before the Special Board of Adjustment established by
 Appendix "K" of Agreement, and that this was done within the 9 months
 provided for in Appendix "C" of Agreement, reading in part: "All
 claims or grievances involved in a decision by the highest designated
 officer shall be barred unless within 9 months from the date of said
 officer's decision proceedings are instituted by the employe or his
 duly authorized representative before the appropriate division of
 the National Railroad Adjustment Board or a system, group or regional
 board of adjustment that has been agreed to by the parties hereto as
 provided in Section 3 Second of the Railway Labor Act." The record
 presents no procedural issue concerning questions of time limitation,
 raised by the parties on the property, and it is not for the Board to
 initiate such a procedural question on its own initiative at the
 present time, although it continually must exercise responsibility
 and authority to determine whether it has jurisdiction over a dispute
 involved in a docket.

 On October 8, 1969, Claimant signed his application for employment, which stated in part: "False statue by applicant will justify rejection of this application regardless of when such fact may be discovered." The Carrier removed Claimant from service effective


          November 4, 1970 when he was advised that his application of employment was rejected. No hearing or investigation was accorded Claimant. The Carrier advised the Local Chairman on November 16, 1970 that:


                  At Judo practice while in Vietnam in 1969, he fell on his right shoulder and dislocated it. The medical records indicate repeated and recurrent dislocations since this time in 1969 and of which Mr. Merritt must have known. He, however, reports negative to all medical questions including request as to when he was last unable to work on account of injury and explanation thereof.


                  Since Medical Records show Mr. Merritt falsified his application for employment and withheld medical history, Mr. Merritt's application was not approved and he was removed from service.


          The employment application, on page 58 of the record, asks: "When were you last unable to work on account of injury?" and it is answered by Claimant, "No." No mention is made of the dislocated shoulder although there is the question, "Do you now have or have you ever had ...Any other physical defects" to which Claimant replied, "No."


          We have reviewed the record most carefully and must conclude that Claimant falsified his employment application.


          The Organization contends that the Carrier does not have the unilateral right, consistent with Rules of the Clerks' Agreement, to dismiss an employe without holding a requested investigation. Rules 58, 56, and 4 are relied upon. Rule 58 reads:


                  An employe who considers himself otherwise unjustly treated shall have the same right of hearing and appeal as provided for by Rule 56 ....


          Rule 56 reads, in part:


                  A. An employee who has been in service more than sixty (60) days or whose application has been formally approved shall not be disciplined or dismissed without investigation, at which investigation, the employe if he desires to be represented by other than himself, may be accompanied and represented only by the duly accredited representative, as that term is defined in this agreement ....


=I
                          Award Number20225 Page 3

                          Docket Number CL-20338


          Rule 4 reads, in part:


                Rule 4. SENIORITY


                A. Seniority of employes shall date from the first paid performance of service on positions covered by this agreement.


                H. When new employes enter service, if their services are satisfactory, and application for permanent employment is not declined within sixty (60) calendar days, their names shall then be listed on the seniority roster with a seniority date as specified in Paragraph A. of this rule. New employes whose names have been listed on the seniority roster in accordance with the provisions of this rule will be considered permanently employed, and shall not thereafter be dismissed on account of unsatisfactory references, other than as provided by Rule 56.


          The aforequoted rules apply to an "employe" or to "employes". In the instant case, however, rejection by the Carrier of Claimant's falsified employment application resulted in a void contract, and, in effect, Claimant never became an employe of the Carrier. A contract of employment obtained by fraudulent representation is a nullity. Claimant, accordingly, is not an "employe" to whom the aforequoted rules apply. This is the teaching of case after case decided by this Hoard. (First Division Awards: 8302; 12107; 12159; 15570; 16239; 16747; 17162; 19954; 21445. Second Division: 5988; 6391; 6530; 6013; 4359; 1934. Third Division: 4328; 4391; 5665; 5994; 11328; 14274; 10090; 18103; 18475. Fourth Division: 2286.) In the absence of terminology of "individual" or "person" along with the word "employe" in Rule 56, or some other explicit language pertaining to falsified employment applications, it must be presumed that the use of the term "employe" contemplated the continued application of the clear and unambiguous holdings of this Hoard.


                  FINDINGS: The Third Division of the Adjustment Hoard, upon the whole record and all the evidence, finds and holds:


                  That the parties waived oral hearing;


          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;


I
                  Award Number 20225 page p

                  Docket Number CL-20338


That this Division of the Adjustment Hoard has jurisdiction over the dispute involved herein; and

        That the Agreement was not violated.


                  A W A R D


        Claim denied.


                        NATIONAL RAMOAD ADJUSTMENT HOARD

                        BY Order of Third Division


ATTEST:
        Executive Secretary


Dated at Chicago, Illinois, this 30th day of April 1974.

 v.~
        LABOR ."-TYEER'S DISSENT

        TO AWARD 2_0225 , DOCKET CL-20338

        (REFEREE LAZAR)


Award 20225 is palrably in error and requires dissent. To hold that Clairant "never became an erploye of the Carrier" is absurd. The use of the terms "empl within Rules 5E and 4 are not to be interpreted as technical "'cords of art" reflecting the lairyers value ,judgment but are to be construed in terms discrirtive of activities or behavior. The discrintive activities and behavior of Clairant and his employer irrediately preceeding Clairant's release from the Carrier's service without hear!nC cr _'.n1rentlcaticn as requ4'red by the Pules Agreement clearl:·, demonstrates that Cla~rant was an employe within the ccveraf-e and protection of the Rules Agreement. "oreover, Clairant at all tires fell within the definition of "employee" as that term is used in Section 1, Fifth, of the Railway Labor Act.
 Award 20225 cites twenty-five ar~ards of all four Divisions of the National Railroad Adjustment concludes that a "contract of employment obtained by fraudulent representation is a nullity". This c or ignores trio important considerations prevailing in the instant case. First, it has never been es secured his contract of employment through fraudulent representations. Secondly, there ras never a h over four-fifths contained either an investigation or a hearing on the property before submission to the Adjustment Board and in the few that did not either special rules were involved or else there was an unqualified demonstration of fraud. Neither situation was obtained in the instant case.
 The "teaching of case after case decided b^ this Board" is not that exrressed in this Award but rather that expressed in Award 19064 (Cull). Award 19064 held:

        "The ouestion for decision is not whether Carrier had a right to dismiss Claimant after learninr of his falsification but whether he had been in Carrier's employ lone enough to have acnuired the protection afforded by the Agreement. Claimant, the record shows eras in service 10 months on the date of the hearing, PTarch 10. This is a period substantially greater than the thirty days. needed to receive the protection of the Agreement. Rule 50 reads as follows, in part:


            '(a) An employe who has been in the service more than thirty (30) days will not be disciplined or dismissed without a fair and impartial hearing he


        Having served the requisite time the protection afforded by the Arreenent was available to Claimant. We find that the statement on the application giving the Carrier the right to discharge because of falsification does net supersede th an exception to Rule 50 in cases of falsification it should have sought it through the collective barrainin7 process. We are persuaded that the sound cases adhere to this aprroach for to allow an individual agreement to erode the collective agreement would leave the process of collective bargaining meaningless. O.R.T. v Railway Express Agency, Inc. 321 U. S. 342; Awards 5793, 11958


          and 2602 and others.'LABOR MEMER I S DISSENT TO

          AWARD 20225 , DOCKET CL-20338

Award 20225 is palpably taronF and vre dissent.

                    4 T C. 7-letcher abor i'erber 4-30-74


LAPOR P.TE,"PER'S DIFMIT TO
 AWARD 20225 . DOCKET CL-203