The Hearing was held as scheduled at which time Claimant was present, represented and testified on his own behalf.
Following completion of the Hearing, Claimant was notified as follows:
The discipline as imposed was appealed through the normal on-property grievance procedures and is now properly before this Board for final resolution.
In this, as in any discipline case, absent some jurisdictional or procedural contentions of which there are none in this instance, the single most important document for the Board's review and consideration is the transcript of the Hearing record. In this, as in any discipline case, the Carrier has the burden of proving the charge by substantial evidence in the Hearing record. Regardless Form 1 Award No. 31067
of the eloquence or imagination of the written or oral presentation of the case to the Board, the substantial evidence must be found in the Hearing record. The term "substantial evidence" has been defined for us by no less authority than the U. S. Supreme Court as follows:
Here we have a Signal Maintainer with approximately 21 years of service with the Carrier who had requested a change in his vacation schedule. His Supervisor had advised him that the change could not be granted as requested due to certain exigencies of the service which required his presence on his assignment. On July 28, 1992, after working his regular assignment, Claimant's wife contacted his Supervisor at approximately 11:00 P.M. to advise that Claimant had been required to seek emergency medical attention and would not be available for service for the next few days. On July 29, 1992, at approximately 7:00 A.M., Claimant called his Supervisor to confirm the information given by his wife the previous night. Later that day, at approximately 6:50 P.M., Claimant again contacted his Supervisor "wanting to know how the inspection went that day ...." No contact was had with Claimant thereafter. Claimant's Supervisor made several telephone calls to Claimant's home on July 29 and received no answer. He made one visit to Claimant's home on July 31 and found no one there. The Hearing notice was issued on July 31, 1992.
The Board studied with interest the transcript of the Hearing record. The Supervisor testified to the effect that he was suspicious that Claimant, after having been denied permission to take vacation time, had used this sickness as an excuse and was, in the Supervisor's opinion, "being dishonest or disloyal."
Claimant testified that after working his full tour on July 28, he required medical attention because of heat exhaustion. He sought that attention on July 28 and presented at the Hearing documentation from the attending physician relative to the medical attention given and the instructions issued by the physician. Claimant testified that on July 29 he contacted a relative to seek the use of "her condominium at Garden City" where he pursued the rest and relaxation prescribed by the attending physician.
Carrier attempted to make an issue of the fact that Claimant was not at his home during the "R and R" period and that he did not advise the Supervisor of his absence from his home. There is, however, no indication in the Hearing record that the Supervisor even attempted to ascertain Claimant's whereabouts. He never asked Claimant where he was when he called the Supervisor at 6:50 P.M. on July 29 in spite of the fact that he had been calling Claimant at Form 1 Award No. 31067
his home during the day and had received no answer. Rather, the Supervisor testified as follows:
Of additional interest to the Board is the absence of information relative to the location of the Garden City condominium. Claimant stated that he and his family went there for rest and relaxation as prescribed by the attending physician. Carrier says Claimant was dishonest for not revealing this fact to the Supervisor. Without any further explanation or logical connection, Carrier charges that Claimant:
It is the Board's conclusion on the basis of the relative convincing force of testimony and evidence that Carrier failed to carry the burden of proof of the charge in this case. Carrier's entire position and conclusions are based upon assumptions, conjecture, surmise and suspicions. The only relevant evidence present in the Hearing transcript is Claimant's introduction of the attending physician's documentation relative to Claimant's condition and the prescribed course of corrective action. While the Board is reluctant to interfere with Carrier's right to make discipline determinations, we have consistently refused to uphold the assessment of discipline which is primarily based on suspicion, surmise, assumption and conjecture. The definition of "substantial evidence" demands much more than is present in this record. The discipline as assessed cannot stand. Form 1 Award No. 31067
This Board, after consideration of the dispute identified above, hereby orders that an award favorable to the Claimant(s) be made. The Carrier is ordered to make the Award effective on or before 30 days following the postmark date the Award is transmitted to the parties.