Form 1
NATIONAL RAILROAD ADJUSTMENT BOARD
THIRD DIVISION
Award No. 33591
Docket No. MS-32865
99-3-96-3-153
The Third Division consisted of the regular members and in addition Referee
Edwin H. Berm when award was rendered.
PARTIES TO DISPUTE:
STATEMENT OF CLAIM:
(Edward Green
(New Jersey Transit Rail Operations, Inc.
"Restoration to service following dismissal on account of failure to disclose
details of back injury on pre-employment application."
FINDINGS:
The Third Division of the Adjustment Board, upon the whole record and all the
evidence, finds that:
herein.
The carrier or carriers and the employee or employees involved in this dispute
are respectively carrier and employee 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
Parties to said dispute were given due notice of hearing thereon.
Claimant was dismissed by letter dated August 30, 1995 for failure to timely
report an injury and for failure to disclose on his pre-employment application that he
had a previous injury as a result of an automobile accident in 1990.
Claimant took a pre-employment physical with the Carrier on March 6, 1995.
On the medical questionnaire, Claimant checked "no" to the question of "Have you ever
been treated for, do you have, or have you ever had any of the following? . . . Back
Trouble, Disc or Injury." On that document, Claimant certified that his responses were
true. The certification further stated that ". . . any misrepresentation or omission of
Form 1
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Award No. 33591 low
Docket No. MS-32865
99-3-96-3-153
material fact will be sufficient cause for my dismissal from the Company's service
if I
"r
am employed."
Claimant was employed effective March 13, 1995. After Claimant reported job
related injuries sustained in July and August 1995, examination
of
Claimant
demonstrated that he had a previous back injury resulting from an automobile accident
that was not reported on his pre-employment medical screening.
At the Hearing, Claimant testified:
MR. HARRIGAN: Well, let me ask you directly. Did you sustain an
injury, to your back, in an automobile accident, in 1990?
MR. GREEN: Yes I did.
MR. HARRIGAN: And what was the consequences
of
that automobile
accident?
MR. GREEN: I was treated by a doctor.
Substantial evidence supports the Carrier's determination that Claimant failed
to disclose on his pre-employment application that he had a previous injury as a result
of
an automobile accident in 1990. In the above-quoted testimony, Claimant admitted
to that failure to disclose.
With respect to the amount
of
discipline imposed, the medical questionnaire
specified the consequences
of
failure to make such a disclosure - ". . . any
misrepresentation or omission
of
material fact will be sufficient cause for my dismissal
from the Company's service
if I
am employed." Dismissal was therefore not arbitrary.
AWARD
Claim denied.
,No
Form 1
Page 3
Award No. 33591
Docket No. MS-32865
99-3-96-3-153
ORDER
This Board, after consideration of the dispute identified above, hereby orders that
an Award favorable to the Claimants) not be made.
NATIONAL RAILROAD ADJUSTMENT BOARD
By Order of Third Division
Dated at Chicago, Illinois, this 16th day of November 1999.
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