(Brotherhood of Maintenance of Way Employes PARTIES TO THE DISPUTE: (and ( (National Railroad Passenger Corporation (Amtrak

 STATEMENT OF CLAIM:



FINDINGS:
The Board, upon consideration of the entire record and all of the evidence, finds that the parties are Carrier and Employee within the meaning of the Railway Labor Act, as amended; that this Board is duly constituted by Agreement; this Board has jurisdiction over the dispute involved herein; and that the parties were given due notice of the Hearing held.

 According to the Carrier, Claimant Eugene Wilsey absented himself from work on July 26, 27, 31, August 2, 3 and 4, 2006. It is uncontested that Claimant had received Counseling in May 2006 for Absenteeism and was issued a Reprimand in July 2006 for Absenteeism.

 By letter dated August 17, 2006, the Carrier notified Claimant that he was to attend a formal Investigation on August 25, 2006. The Investigation took place on May 3, 2007, addressing the following charges and specification:
















In a letter dated May 11, 2007, Claimant was notified that he was assessed a 10-day Suspension for Absenteeism.

 By letter dated May 21, 2007, the Organization appealed the decision indicating that the Carrier did not meet its burden of proof and that the discipline assessed in the case was unwarranted and excessive. In addition, the Organization contended that Claimant was undergoing marital difficulties and was in the process of applying for an FMLA Leave, which was subsequently approved on August 3, 2006. On June 22, 2007, the appeal was denied by Carrier Representative Carmina Barron. On July 16, 2007, the Organization further appealed the matter. On August 6, 2007, Labor Relations Director Richard Palmer denied the appeal.

 The Organization contends that the burden of proof in a discipline matter such as this is on the Carrier; that burden of proof has not been met. The Organization claims that the Carrier has been arbitrary and capricious in its treatment of Claimant, that the Carrier has abused its discretion and that the Carrier's determination to discipline Claimant was based on inconclusive evidence, thus rendering the discipline harsh and excessive. In addition, the Organization asserts that Claimant was undergoing marital difficulties and as such, the Carrier should not impose discipline of such severity. The Organization asserts that the Carrier should now be required to overturn the discipline and make Claimant whole for all losses.

 Conversely, the Carrier takes the position that it has met its burden of proof. Claimant was afforded a fair and impartial Hearing in accordance with the requirements of the Agreement. According to the Carrier, a review of the transcript developed during the Hearing makes it clear that Claimant was guilty as

                                  Case No. 3


charged. Based on the instant offense and Claimant's prior record, a 10-day Suspension is an appropriate penalty.

 In discipline cases, the Board sits as an appellate forum. We do not weigh the evidence de novo. As such, our function is not to substitute our judgment for the Carrier, nor to decide the matter in accord with what we might or might not have done had it been ours to determine, but to rule upon the question of whether there is substantial evidence to sustain a finding of guilty. If the question is decided in the affirmative, we are not warranted in disturbing the penalty unless we can say it appears from the record that the Carrier's actions were unjust, unreasonable or arbitrary, so as to constitute an abuse of the Carrier's discretion. (See Second Division Award 7325, Third Division Award 16166)

 This Board has found substantial evidence in the record to sustain the Carrier's position in whole. The Carrier has proven that Claimant did violate Amtrak's Attendance Policy and Standards of Excellence. Based on the transcript of the Hearing, this Board cannot find that the Hearing Officer's determination was arbitrary or capricious and this Board will not overturn said determination. We have also carefully reviewed the affirmative defenses presented by the Organization and have determined that they are not sufficient to overturn our findings.

 Further, we find that the discipline of the 10-day Suspension was not unreasonable based on both the offense and Claimant's past record, and we will not disturb it. See PLB 6044 Awards No. 15, 24 and 26 (Zusman). See Also PLB 2945 Award 24) (Blackwell).

    The claim is without merit. It will be denied.


    Claim denied.


3
                              Public Law Board 7035 Case No. 3


                  AWARD


                    Claim denied.


                Steven M. B e g

                airperson and Neutral Member


222
 achelle Miel Bradley A. Winter
 Carrier Member Organization Member
 Dated at Chicago, Illinois this day of 2009.

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