PUBLIC LAW BOARD NO.
 CASE NO. 4

 (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, rinds 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.

 On August 7, 2006, Claimant Eugene Wilsey was assigned to perform tie replacement on the south end of Track #4 in the Rensselaer Mechanical Facility Yard. While pulling spikes with a claw bar, the claw bar slipped off the head of the spike resulting in an injury to Claimant's shoulder and neck from the sudden ,jolt. According to the Carrier, had Claimant complied with Amtrak's safety rules, he would not have been injured. In addition, the Carrier contends that Claimant is injury prone as he has had an injury rate that is 163°lo higher than that of his coworkers.

 By letter dated August 26, 2006, the Carrier notified Claimant that he was to attend a formal Investigation on August 31, 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 30-day Suspension for violating Amtrak's Standards of Excellence pertaining to Safety and Attending to Duties.

 By letter dated May 1$, 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
 Public Law Board 7035
 Case No. 4

 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 not accident prone and should not be disciplined for said violation. 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 :hakes it clear that Claimant was guilty as charged. In addition, the Carrier claims that Claimant has sustained significantly more injuries than similarly situated co-workers. Based on the instant offenses and Claimant's prior record, a 30-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 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. In addition, the Carrier has proven that Claimant did sustain substantially more injuries than did similarly situated co-workers. It is not improper for the Carrier to discipline an employee who is accident prone. See PLB No. 6478, Award 102 (Referee Zusman), PLB No. 6865, Award 8 (Referee Johnson).

 Board finds that the discipline of the 30-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.
 Public Law Board 7035 Case No. 4

 AWARD
Claim denied.

 Steven M. Bierig
 ~airperson arid Neutral Member

 RAchelle Miele
 Carrier Member

6Z~ 4

Bradley A. Winter
 Organization Member

 Dated at Chicago, Illinois this ~3 day of~~ - 2009.