Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 29408
 THIRD DIVISION Docket No. MW-29597
 92-3-90-3-565
 The Third Division consisted of the regular members and in
 addition Referee Elizabeth C. Wesman when award was rendered.

 (Brotherhood of Maintenance of Way Employes PARTIES TO DISPUTE:

STATEMENT OF CLAIM: "Claim of the System Committee of the Brotherhood that:

 (1) The Agreement was violated when the Carrier terminated the seniority and employment relationship of Mr. R. M. Balestino within a letter dated July 13, 1989 without the benefit of a fair and impartial hearing as required by Rule 27, Section 1(a) (System Docket MW-704).

 (2) Mr. R. M. Balestino shall be reinstated with seniority and all other rights unimpaired and he shall be compensated for all wage and benefit loss suffered as a consequence of the violation in Part (1) above."

 FINDINGS:
The Third 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.

On November 11, 1986, Claimant sustained an on-duty injury while working at Chester, Pennsylvania. In connection with that incident, he filed a suit against Carrier pursuant to the Federal Employers' Liability Act (FELA). Following litigation, the jury returned an initial verdict awarding Claimant $210,000 for permanent disability to perform Trackman's work. The monetary award was reduced to $63,000, however, because in its contributory negligence deliberations the jury found Claimant to be 70% at fault. Of that amount, Claimant paid approximately $40,000 in attorney fees, witness fees, Railroad Retirement, and insurance, for a balance of about $23,000.
 Form 1 Award No. 29408
 Page 2 Docket No. MW-29597
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 Following settlement of the monetary claim, Carrier advised the Claimant, by letter dated July 13, 1989, that his seniority and employment status were terminated. Carrier conducted no investigation prior to making this decision and notifying Claimant accordingly. A Claim was filed by the organization alleging that Carrier had violated Rule 27 of the Agreement by dismissing Claimant from service without first conducting a fair and impartial Hearing. Rule 27 reads in pertinent part as follows:





That claim was denied by Carrier and subsequently appealed by the Organization up to and including the highest Carrier officer responsible for such matters. Thus it is properly before the Board for disposition.

 In support if its position, Carrier maintains that in this case, Rule 27 is not applicable. It points out that before the trial, Claimant's counsel presented an initial demand of $150,000, (later reduced to $140,000) premised upon permanent disability. Thus, Carrier never removed Claimant from service, he removed himself. Further, Carrier argues that Claimant and his physician testified in a court of law that he was permanently disabled from performing railroad work. Accordingly, Carrier simply acted upon that information.

 Carrier also insists that Claimant is estopped from alleging he is physically capable of returning to the service of the Carrier because of his previous, and contradictory, posture that he was permanently disabled as result of injuries sustained on duty. It maintains that the considerable award entered by the jury as a consequence of his permanent physical disability estops Claimant from was a mere fiction, and that he is able to perform work. The jury determined that the contentions of Claimant and his physician were correct and that he would never be able to return to trackman work, thus Claimant is estopped from returning to work because of his success in court. Finally, Carrier argues that the monetary amount of the award to Claimant is not relevant in assessing the intent of the jury making that award.
The Organization maintains that unless Claimant voluntarily left °service (quit), failed to return to service following recall, or had been dismissed from service following a fair and impartial Hearing, Carrier had no basis for terminating his seniority. It disputes Carrier's allegation that the Claimant's seniority rights were automatically terminated upon satisfaction of the jury award, b Agreement are separate from and unaffected by a civil action under the FELA.
 Form 1 Award No. 29408
 Page 3 Docket No. MW-29597
 92-3-90-3-565

 In addition, the Organization argues that Carrier is in error when it alleges that because Claimant received a monetary judgment for permanent total disability against Carrier in connection with a civil action under the FELA he is estopped from returning to employment with the Carrier. The Organization insists that Carrier has failed to establish that the conditions for estoppel exist in this case; specifically, Carrier has not shown a misrepresentation of facts, that the jury relied on such a misrepresentation for making its decision, and that the Jury i permanent disability from railroad work. It points out in particular the ultimate award of $23,000, which, according to the Organization, could not possibly have been contemplated as other than compensation for "pain and suffering," a temporary disability, past wage loss, and future wage loss.

 As remedy, the Organization seeks to have Claimant's seniority reinstated and asks that if Claimant, at some future date is able to present himself for service, he should be afforded the opportunity to work in accordance with his seniority.
Upon careful review of the extensive record before the Board, we conclude that the claim in this case must be denied. The issue before the Board does not involve a matter of discipline assessed, but rather a judgment by Carrier, based upon a jury trial and subsequent monetary award, that Claimant was no longer capab established in numerous forums that having achieved a verdict awarding money for an injury which allegedly permanently deprives an employee from returning to his or her former work, that employee is estopped from then taking a contrary position in order t Third Division Award 6215:

(See also, PLB No. _3001, Award 2; PLB No. 3991, Award 6; Third Division Awards 26366, 28217). Moreover, the case before us is distinguishable from PLB No. 3775, Award 35, offered by the organization to support its claim. In that case Carrier appealed the verdict favorable to the injured employee, and the appeal was pending as the Claim was presented before the referee. In that Award it was properly held that
 Form 1 Award No. 29408
 Page 4 Docket No. MW-29597
 92-3-90-3-565
 "Carrier's appeal of the jury judgment rendered in
 favor of the Claimant is an act inconsistent with the





In the case before this Board, Carrier has already paid the amount of the judgment, and has filed no appeal.

 Testimony by Claimant's physician during the trial established, persuasively enough for the jury, that Claimant would be unable to resume his activities as a Trackman:

















Form 1 Award No. 29408
 Page 5 Docket No. MW-29597
 92-3-90-3-565















Thus, Claimant cannot now persuasively maintain that he should retain seniority rights in a mode of employment which a court of competent jurisdiction has determined he i his medical disability in obtaining a favorable verdict in a court of law, Claimant may not now be allowed to recant and inveigh against Carrier for agreeing with him, with his physicians and with the jury.






Attest:
      ,ancy J. -Executive Secretary


Dated at Chicago, Illinois, this 17th day of September 1992.