Form 1 NATIONAL RAILROAD ADJUSTMENT BOARD Award No. 883+
 SECOND DIVISION Docket No. 8751
 2-BNI-CM-'81


Parties to Dispute: ( and Canada
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Dispute: Claim of Employee:













Findings
The Second Division of the Adjustment Board, upon the whole record and all the evidence, finds that:

 The carrier or carriers and the employs or employee involved in this dispute are respectively carrier and employs within the meaning of the Railway Labor Act as approved June 21, 193+.

 This Division of the Adjustment Board has jurisdiction over the dispute involved herein.

An investigation was held on December 4, 1978 to determine whether Claimants violated Rules G and 663 of the Burlington Northern Safety Rules on November 13, 1978. Specifically, they were charged with smoking marijuana while on duty on November 13, 1978 at the Northtown Cdr Shop at approximately x+:50 P.M. and for improperly possessing company property. Based on the investigative record, Carrier determined that they were guilty of the cited violations and dismissed them from service, effective December 26, 1978. This disposition was appealed.

 In defense of their position, Claimants deny smoking marijuana and contest the asserted expertise of Car Foremen T. J. Geyer and D. L. Gabriel, who testified at the investigation, that they detected the odor of marijuana when they were close to the Claimants. Claimants argue that no physical evidence was found in the Rip 3 area or the Shop Foreman's office, where they were searched by Special Agents. Carman Decker testified he was burning galvanized
 Form 1 Award No. 883.
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 2-BNI-CM-'81

 metal during his coffee break at 4:45 P.M., which exuded a strong odor that was most likely detected as marijuana, when Car Foremen Gayer approached them in the shop by Rip 3. They deny the correlative charge that they improperly possessed company property and contend that the record does not establish a Rule 663 violation. They argue that they willingly cooperated with carrier authorities, when their lockers and vehicles were searched by Division Special Agent Kemp and offered justifiable explanations, when the pieces of brass were found at the bottom of Cayman Decker's locker and a first aid kit was found in Cayman Pace's vehicle.

 Carrier contends that they were smoking marijuana, as evidenced by Car Foreman Geyer's direct observation of them, when he approached them in the Rip 3 area and detected the odor, and Car Foreman Gabriel's subsequent identification of marijuana odor when he entered the Shop Foreman's office at approximately 5:05 P.M. Carrier contends that both officials were competent to determine that Claimants smoked marijuana on November 13, 1978. Car Foreman Gayer testified that he saw them exchange a cigarette when he approached them in the Rip 3 area and distinctly smelled marijuana when he was within one and a half (1k) feet of them. Car Foreman Gabriel testified that he detected the odor of marijuana when he entered the Shop Foreman's office, where the Claimants were detained for preliminary investigative purposes and asserted that he was sufficiently trained to determine that it was marijuana.

 As to the second specification, namely, that Claimants improperly possessed company property, Carrier contends that Cayman Decker's impermissible possession of pieces of brass in his locker and Carman Pace's unauthorized possession of a first aid kit in his vehicle, clearly establish a Rule 663 violation.

 In our review of this case, we concur with Carrier on the Rule G violation, but find no persuasive evidence to support the Rule 663 violation. In reaching our conclusion, we have carefully evaluated the testimony of Car Foreman Gayer and Gabriel to determine whether their perceptions on November 13, 1978 pointedly demonstrate that Claimants were smoking marijuana and the correlative denials advanced by the Claimants. Clearly, if. we accept Claimants denials as dispositive of the Rule G specification, we discredit, by definition, Carrier's position that the Car Foremen were trained to detect drug use and more particularly, their asserted observations that marijuana odor was present. On the other hand, the lack of any physical evidence, such as the marijuana cigarette itself or residual fragments thereof, raises a presumption of doubt. Since we are singularly entrusted by the Railway Labor Act 1926, as amended, to exercise appellate jurisdiction only, we are precluded from re-trying the case. Our role is to review the investigative record to insure that the Claimants were afforded a fair and impartial administrative trial. If we find that the Hearing Officer, who is the trier of facts, conducted the trial in accordance with the Board's standards of contractual due process and rendered his decision upon substantial and credible evidence, we will not attempt to reverse or modify his decision in the absence of visible bias or abuse of managerial discretion. We do not find grounds for reversal here. In Second Division Award 7325 (McBrearty), which is pertinent to our findings herein, we stated in part that:
 Form 1 Page 3

 Award No. 883+
 Docket No. 8751
 2-BNI-CM-181

 "There is no rule which states that the Hearing Officer is under an obligation to believe the Claimant's testimony, and completely reject that of Carrier's foreman who testified against him. If, as in this dispute, there be a conflict in the testimony adduced, it is the function of the trier of the facts and not the function of this Board to resolve such conflict."

 We find this decision on point with the instant case relative to the asserted Rule G violation and we will sustain Carrier's determination on this charge.

 Conversely, when we consider the evidence underpinning the Rule 663 specification, we cannot agree that the record supports the purported improper possession charges. Unlike the Rule G violation, which we have discussed above, we are confronted now with factually different circumstances. In the case of Carman Decker, we have no evidence, other than the fact that the pieces of braes were foLUUl at the bottom of his locker, that he willfully stole them or acquired them for a wrongful purpose. It is not inconceivable that despite his six months occupancy of this locker, that someone else might have deposited the brass there. Theft is a speculative conclusion. In the case of Carman Pace, there is no evidence that he stole the first aid kit or obtained it from another employee, knowing that it was stolen. To be sure they should not have had such property in their possession to begin with, but it was not theft or pilferage, as these terms are customarily and legally used. We will reverse Carrier's decision on the Rule 663 violation for the aforementioned reasons and as indicated previously in our findings, we will sustain the Rule G violation. We are reluctant to disturb Carrier's dismissal penalty since a Rule G violation is a serious offense in the railroad industry, but we believe that their dismissal to date was sufficient punishment for this offense. We will restore them to service, but without back pay, with the explicit understanding that this is their last chance.

 A W A R D

 Claim sustained to the extent expressed in the opinion.

NATIONAL RAI:faOAD ADJUSTMENT BOARD

By Order of Second Division


Attest: Executive Secretary
 National Railroad Adjustment Board

 By
 emarie Branch - Administrative Assistant

 Dated at Chicago, Illinois, this 9th day of December, 1981.