Upon the whole record and all the evidence, after hearing, the Board finds that the parties herein are carrier and employee within the meaning of the Railway Labor Act, as amended, and this board is duly constituted by agreement and has jurisdiction of the parties and subject matter.
This award is based on the facts and circumstances of this particular case and shall not serve as a precedent in any other case.
Therecord reflects that on August 1 1,2004, Claimant completed an application foremployment with Carrier. The application asked whether the applicant had been convicted of any crimes, felonies and misdemeanors, within the last 15 years, and to list the date, location and nature of each conviction. Claimant disclosed a 1991 conviction for public intoxication but failed to disclose a 1994 conviction for misdemeanor possession of drug paraphernalia. The application plainly and clearly required disclosure of the 1994 misdemeanor conviction and Claimant failed to disclose it. There is no question that Carrier proved the charge by substantial evidence.
However, considering all of the circumstances, we find that the penalty of dismissal was excessive. The misdemeanor conviction that Claimant failed to disclose was almost ten years old at the time of the application. Moreover, by the time Carrier discovered the conviction and held the investigation. Claimant had been employed for approximately fourteen months. Although Claimant's failure to disclose the ten year PLB No. 6394
