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 dated March 20, 2008, this Board has jurisdiction over the dispute involved herein, and that the patties were given due notice of the hearing held.
On September 8, 2005, while Claimant was setting spikes, one flew up and struck him on the an-n. Claimant's arm was cut, requiring eleven stitches to close the wound. As a result of this
incident, Claimant was directed to attend a formal investigation at which he was charged with failing to properly set the spike. Following the investigation, Claimant was assessed a ten day suspension.
The record before the Board shows that the Carrier's requirements in setting spikes involved tapping the spike with the maul to ensure that it is firmly seated. At the investigation, Claimant testified that this incident occurred while he was tapping the spike. He explained that the ties were old and hard, which probably accounted for the spike not being set. Our review of the transcript fails to show any evidence that Claimant failed to follow the Carrier's instructions and was at fault in this incident. We conclude, therefore, that the Carrier did not have substantial evidence to support its charge against Claimant. The assessment of discipline was in violation of the Agreement. Accordingly, we will direct that the discipline be rescinded and that Claimant be made whole for time lost as a result of the suspension.
rr ,'. Simon
Chairman and Neutral Member