Following the Hearing, the Claimant was notified in pertinent part as follows:

"The facts adduced at the investigation held April 16, 1992, proved conclusively that you misrepresented the facts at the investigation held on March 18, 19 and 20, 1992 in an attempt to conceal information requested of you and that your actions were deliberate and borders on dishonesty. The facts further reveal that you were evasive in disclosing to the Carrier your home address which you were instructed to furnish. Your evasiveness in complying with the reasonable instructions issued you by your Supervisor, borders on insubordination."

As a result, the Claimant was assessed a 60 day suspension, in addition to the time withheld from service pending the Investigation.

Based on a review of the entire transcript, the Board can find no support whatever for the conclusions reached by the Carrier in assessing the disciplinary penalty. In addition, in the conduct of the Hearing Officer the Board finds strong support for the contention that the Claimant did not receive a fair and unbiased Hearing. These conclusions are based on the following:

1. As to the March 23 letter of instructions, the Claimant replied as to his home address (808 Hazelwood Drive, Woodstock, Georgia) and a telephone number where he could be reached (which happened to be at a different location). The Carrier's own investigation showed that the Woodstock address was the Claimant's father's home, and obviously could legitimately be stated to be his home. There was no testimony that the Carrier at any time had been unable to reach the Claimant through the telephone number he submitted.

2. Having established this, the Hearing Officer nevertheless pursued repeatedly the point that the telephone number was actually at another location. The Claimant never stated otherwise. It was established that the Claimant was related to the residence attached to the telephone number. With some reluctance, the Claimant's representative presented the unchallenged information that this residence was that of the Claimant's estranged wife and child.

3. If there was some alleged "false" testimony at the March 18-20 Hearing concerning prior training, Organization testimony and evidence, also unchallenged, left no basis for the allegation of falsity.

4. The Carrier's dismissal letter does not support the charge of insubordination, dishonesty and/or concealing facts "concerning matters under investigation." To what matters under investigation, does this refer? No specific reference is provided. Further, the Claimant is deemed to have taken action which "borders on dishonesty" and "borders on insubordination." The charges accused the Claimant of insubordination and dishonesty. This is clearly not the same as the Carrier's conclusion that his action "borders on" these offenses. If an employee "borders on" reporting late for duty, does not that mean the employee was not tardy?

5. The Hearing Officer's conduct did not meet the standards for a fair Hearing. In his leading questions, he "made the case" for the Carrier. His questioning was frequently accusatory and argumentative, rather than confined to permitting the witness to testify in a non-hostile atmosphere. The tenor of the Hearing was established at the outset when the Hearing Officer said to the Claimant:

"Wait, Mr. Stonecipher before this goes any further, I read in this Investigation already that this Investigation will be conducted in a manner with courtesy and civilness. I will now ask you to answer the questions directed to you and not be argumentative to the Conducting Officer and conduct yourself] with courtesy and civiiness. Now would you please answer the question that was directed towards you."

This came after the Claimant had been interrupted twice by the Hearing Officer as the Claimant sought to answer a question about his "current residence."

In disciplinary matters, the Carrier has the responsibility to show that the Hearing supported the charges made against the employee. When all was said and done, it appears that the simple and plausible explanation was that the Claimant had consistently given an address in Woodstock as his legal residence and place to receive mail, and he also supplied a telephone number at a place where his estranged family lived and where he visited or was able to have telephone messages conveyed to him. As indicated in the Carrier's own disciplinary letter and by the testimony and evidence set forth in the Hearing, this burden of proof was simply was not met. The Board can reach no other conclusion from the Hearing record.

In sustaining the claim for "all time lost and removal of discipline," the Board specifically includes the time withheld from service pending Hearing as well as the suspension itself, but excludes pay for overtime which the Claimant may or may not have been assigned to work.

AWARD