Public Law Board No. 2203
PARTIES Brotherhood of Maintenance of Way Employes
_TO
DISPUTE: and
Consolidated Rail Corporation
STATEMENT "Dismissal case of L. L. Barnett, Trackman."
_OF
CLAIM:
FINDINGS: Just before claimant entered Carrier's service, he
first filled out an application for employment on
September 4, 1975, in which he answered "No" to the
. question as to whether he had ever sustained a personal
injury other than minor cuts or bruises. He signed the
application and certified therein that he had correctly
answered all questions.
Investigation subsequently disclosed that the reply
was false. Claimant was charged on June 2, 1977 with falsification
of the application and was accorded a hearing on June 13.
. At the hearing claimant was ably represented and.
raised no objection to the adequacy of the charges and notice of
' ago>_-
AwD. (, 2 _
.hearing or any other procedural matter. He simply pleaded guilty
and asked for leniency..
He subsequently was dismissed because of falsification
of the application. He appealed and again asked for leniency. In
processing'his appeal, he alleged that Assistant Division Engineer .
Halloway had told him on June 6, 1977 that his job would be preserved
if he pleaded guilty and requested leniency. Mr. Halloway denied
the allegation and the evidence is not sufficient, in the face of
that denial, to prove that the suggestion was in fact made.
We do not agree with Award 103 of Special Board of
Adjustment No. 589 that a plea for leniency necessarily removes
the case from the authority of the Board. There is no sound ground
for applying the principle so rigidly as the Award 103 line of
cases prescribes. Whether or not a Board such as ours should resolve
a dispute where a leniency plea has been entered should be decided
on a case to case basis. The Board has jurisdiction over the dispute. The real question is whether it should exercise it.
Nevertheless, no convincing reason has been advanced
for setting aside claimant's dismissal. A representation that no
injury has been sustained is indeed material in view of the physically
exacting nature of claimant's work and Carrier's potential liability.
While Carrier did not file charges until almost two
years after the misrepresentation, the matter of laches is an affirmative defense which has not been established by evidence in
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.this case. There is no indication that Carrier should reasonably
have been aware of the 'falsification at an earlier date.
AWARD:
Claim denied.
Adopted at Philadelphia, Pa.,
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Harold M. Weston, Chairman
Carrier Member Employe Member