Brotherhood of Maintenance of Way Employes
 PARTIES TO DISPUTE: and
 Burlington Northern Santa Fe Railway
 (Former ATSF Railway Company)

 STATEMENT OF CLAIM:


FINDINGS AND OPINION:
Upon the whole record and all the evidence, the Board finds that the Carrier and Employees ("Parties") herein are respectively carrier and employees within the meaning of the Railway Labor Act, as amended, and that this Board is duly constituted by agreement and has jurisdiction over the dispute herein.

 The Claimant, Mr. Therry Rucker, III, was hired by the Carrier on October 2, 1995, and was working as a Trackman at the time he was removed from service on May 16, 2001, pending investigation. On May 25, 2001, the Carrier's Director of Administration addressed a letter to the Claimant, reading as follows, in pertinent part:

The investigation was held at the appointed time. The Claimant was present with his representative, the Organization's Assistant General Chairman. There was only one witness called, Mr. William Hanna, the Carrier's Senior Special Agent, appearing as directed by the Carrier.

 Mr. Hanna testified that when the Claimant applied for employment by the Carrier, he filled out an application form, presented in evidence, which contained this question:

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 Case No. 271

 Following this question, there were two boxes captioned "Yes" and "No." The Claimant had checked the "No" box.

 At the end of the employment application form, there is a section entitled "Applicant Statement." Within that section these printed words appear:



Below these statements there is a signature line, on which the Claimant's written signature appears. The application is dated September 14, 1995.

 Mr. Hanna fiuther testified that his examination of public records disclosed that the Claimant had been convicted of four misdemeanor offenses, one on January 20, 1993, and three on July 21, 1995. He submitted documents obtained from the Potter County, Texas, court system, as supporting evidence. These convictions all pre-date the Claimant's application for employment with the former ATSF Railway, a component of the merged Burlington Northern Santa Fe Railway.

 The Claimant did not contest the accuracy of these court records. In his defense, he asserted that when he filled out the application for employment, he was told the Carrier would only be concerned with felony convictions. The essence of his defense is summarized in the following series of questions and answers:










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 Public Law Board No. 4244 Award No. 261
 Case No. 271
 49. Q. Okay. Was there local personnel?















Black's Law Dictionary, Sixth Edition (1990) defines "misdemeanor" and "felony" in these terms:



On June 15, 2001, the Carrier's Division Superintendent addressed a letter to the Claimant, reading as follows, in part:

Following receipt of that letter, the Organization progressed its appeal of the Carrier's disciplinary decision to the highest officer of the Carrier designated to handle such appeals, whose final decision is now before this Board.

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 Public Law Board No. 4244 Award No. 261
 Case No. 271

 The Organization's appeal features two defenses. First, it argues, the Carrier has not shown that it would not have hired the Claimant if it had known of his conviction on these misdemeanor offenses.

 Second, the Carrier presented no evidence to refute the Claimant's assertion that he was told he need only make the Carrier aware of fehnv convictions. The Organization posits that if the Carrier has other instructions given potential employees, it should have witnesses present to so attest.

 These defenses are not persuasive. When the Carrier presented evidence that the Claimant
 had been convicted of , crimes albeit they were misdemeanors, and the Claimant admits to the
 accuracy of the evidence, the Carrier has made a prima facie case to support the charge, falsifica
 tion of the employment application. In its two-fold defensive posture, the Organization is
 submitting an affirmative defense, with its shifting burden of proof.

 If, as the Organization argues, the Claimant was given oral instructions which supersede the written instructions and affirmations contained in the employment application, it was the Claimant's right to request that those who gave such instructions be present. The investigation night have been recessed to obtain the presence of other witnesses to support the Claimant's position. No such recess was requested, nor the presence of any additional witnesses.

 The Board has carefidly read all the testimony presented by the Claimant. It may well be true that he was told that the Carrier was principally concerned about felony convictions, but at no point is found a clear statement that he was Ig1d to answer the question about crimes in the negative, nor did the Claimant say that he informed anyone of his misdemeanor convictions, coupled with a clear question whether he should still check the "No" box.

 The Claimant, therefore, is clearly guilty of the offense of falsifying his application for employment, as charged.

 During the course of the investigation, the Claimant's representative objected to the Gaimant's removal from service pending the investigation, and objected to the clarity of the notice of charges. These objections were not further pursued on appeal, and the Board therefore concludes that these issues have been abandoned.

 On page 2 of this Award, a paragraph in the employment application is quoted, which pertains to "at will" employment of applicants. Notwithstanding its acceptance by an applicant who affixes his or her signature thereunder, this provision is subordinate to the Carrier's collective bargaining agreements. The Parties' Agreement, Discipline Rule 13 in particular, sets forth procedural limitations which supersede this "at will" condition.

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 Public Law Board No. 4244 Award No. 261
 Case No. 271

 The Claimant also acknowledged, in his employment application, understanding that false information would be grounds for dismissal at any time. The Carrier did not violate the Parties' Agreement when it dismissed the Claimant for falsifying information with regard to criminal convictions.

 Notwithstanding the above comments, the Board notes that the Claimant's personal record is clear of any disciplinary entries from the time of his employment in 1995 until his dismissal in 2001. The Board further notes the commendatory comments on the Claimant's work ethic submitted by one of his former supervisors, Manager of Roadway Planning R. R. Walker. Mr. Walker, presumably, was not aware of the Claimant's falsification of his application, but his endorsement goes to his personal knowledge of the Claimant's personal qualities in work situatior-.

 For these reasons, the Board believes that the Claimant should be returned to service, having proven his worth as an employee, other than the falsification of his employment application. Because his offense was proven, he shall not be awarded any back pay, but his other rights shall be unimpaired. Because the offense involved dishonesty, an act of moral turpitude, the Claimant should regard his return to service as a last chance opportunity to prove his honesty.

Claim sustained in accordance with the Opinion, above. The Carrier shall comply with the Board's decision no later than thirty (30) days from the date of this Award.

                    900-3

                  Robert J. Irvin, Neutral Member


zjL"

R. B.ehrG, Employe Member Thomas M. Rohling, Carrier Mer

                          Date


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