- S.B.A. 6394records showed a history of back injury and pain that dated back to the early 1980s (see Carrier Brief, page 7). Specifically, the Claimant's doctor stated "Nathaniel Bell ...presents to my clinic with off and on severe low back pain and with radiating pain down his left leg since 1980. He has been having recurrent symptoms since the early 1980s ...." (see Transcript, page 7).
Part of the Employer's application process is Form MED-15, which requires all potential employees to detail any history of any health issues they may hate. The Carrier uses thus information to determine whether the applicant is sufficiently fit for work in a railroad environment. Of relevance to the instant case is a question on the MED-I5 form which asks -Have you ever had or do you nosy hate any of the following?" and includes a list of medical conditions including back injury and back pain (see Carrier Brief; pages 1-2). The MED-15 form also requires the employee to sign a statement certifying that the information on the form is correct. When the Claimant filled out IVIED-15 on August 9, 2007 he checked "no" on the form, indicating that he did not have any history of back injury or back pain (see Carrier Brief, Exhibit 11).
Upon its discovery that the Claimant had a history of back problems, Dr. Lina wrote to the Claimant's supervisor. In that letter, Dr. Lina stated that if she had been aware of the Claimant's condition lie would not have been recommended for employment. Due to these events, the Carrier charged the Claimant with conduct unbecoming an employee and held a formal investigation including a hearing on April 2, 2012. On April 11, 2012 the Carrier notified the Claimant that he was dismissed from service.
The Carrier argues that there is no dispute that the Claimant failed to indicate any history of back injury or pain on the MED-15 form. Additionally, during the course of the investigation the Claimant admitted he had also omitted this condition on subsequent medical forms (see Transcript, page 11). Claimant also submitted revised information stating that although he had a back injury in the early 1980s there were no recurrent symptoms until on or about November, 4,2011 (see Carrier Brief, page 8). The Carrier argues this justification has little value because it contained no zmedical information to confirm the statement and, in any event, the injury in and of itself should have been reported on MED-I5. Finally, the Carrier argues via extensive citation of other awards that this level of misconduct rises to such an egregious level that dismissal is appropriate - e%-en if the Claimant did not intend to be dishonest on the forms.
It is the Organization's position that the Carrier must meet a heightened burden of proof, which it contends did not occur, because the case alleges "moral turpitude" on the part of the Claimant (see Organization Brief, pages 5, 7). The Or~anization argues that the Claimant did not intentionally omit or falsify information, and any appearance of such is from the Carrier's mischaracterization of the records provided by the Claimant's doctors (see Organization Brief, page 4). The Organization also argues that due to the nature of the Claimant's injury, it may indeed cause pain, but not on a "proportionate lex-el" to be considered an injury. Essentially. the Claimant's issues related to his 1980s injury are real but on a relatively minor level, such that they fall into a category of health Page 3
issues that if every employee had to report them, no other work would be done (see Organization Brief, page 11). Finally, even if the Claimant is technically guilty, this level of offense, which occurred 4+ years ago, does not warrant dismissal (see Organization Brief, page l5).
The Board finds there is no disagreement that the Claimant incorrectly filled out his MED-15 form and should have notified the Carrier about his history of back pain. Concurrently, the Board does not find any direct intention to maliciously withhold information from the Carrier. The Board also notes that while it seems highly unusual that the Claimant could have sustained a back injury in the early 1980s which had no recurrent symptoms until 2011, this is what the C'laimant's doctor submitted on the revised form and we can find no evidence in the record to substantially refine this claim. As such, we find that the punishment of dismissal eras not appropriate. The Claimant is to be reinstated, but without back pay.
