Form 1 NATIONAL. RAILROAD ADJUSTMENT BOARD Award No. 1039-'
 SECOND DIVISION Docket No. 10542
 2-SSR-MA-'85

 The Second Division consisted of the regular members anti in addition Referee Jonathan Klein when award was rendered.

 ( International Association of Machinists
 Parties to Dispute: ( and Aerospace Workers

Dispute: Claim of Employes:



Findings:
The Second Division of the Adjustment Bard, upon the wholf.= record and all the evidence, finds that:

 The carrier or carriers and the employe or employes involved in this dispute are respectively carrier and employes within the meaning of the Railway Labor Act as approved June 21, 1934.

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

 Parties to said dispute waived right of appearance at hearing thereon.

 Claimant R. J. Haddox was charged on October 13, 1981 with insubordination "...in that you refused to relinquish to Terminal Trainmaster C. E. Becker smoking materials suspected to he marijuana about 3:3(1 A.M., October 19, 1991, Radnor, Tennessee." After a formal investigation on December 18, 1981, Claimant was assessed a thirty (30) day actual suspension from the service of the Carrier on January 28, 1982.

 The Organization initially maintains that the Carrier's delay between the investigation and the date on which the discipline was announced was excessive, unacceptable and without explanation. There is no rule support or other basis for the Organization's position in this respect. There is no showing that the time between the investigation and Carrier's discipline was in any way prejudicial to the Claimant.
 Form 1
 Page 2

 Award No. 10397
 Pocket No. 10542 2-S S tt-MA-' B 5

 proceedings is

 s on the

 The fact that the actual transc replete with misspellings, deletions

 unintelligible is not a sufficient ground for this Board to

 that the investigation is unfair. Careful examination of t record provides this Board witty sufficient opportunity to review the evidence, although with some difficulty. The transcript is
 not so inadequate as to prohihit the Organization from
 effectuating a proper appeal of Claimant's case.

 The Organization argues that based on the testimony of independent witnesses for Claimant, the fact that no medical drug check was performed, and the fact that Claimant continued to work the balance of his shift compels us to find that the Carrier failed to meet its harden of proof. The charge against Claimant was for insubordination and not for possession of drugs, or for

 being cruder the duty.

 The evidence of record demonstrates that the trainmaster had walked over to the car inspector's office due to engine difficulties nn a train which necessitated replacement of one of the locomotives. The trainmaster saw the Claimant smoking what appeared to be a cigarette. As the trainmaster proceeded to enter the passenger's shed, he smelled an unusual odor similar to burning leaves, which he suspected to he marijuana. The

 trainmaster approached the Claimant and asked to see what it that Claimant was smoking. Claimant denied that he was smol:

 ript of the and border

 influence of drugs while on duty or subject to

 w a s n~

 anything at all, although the trdiurraster observed a lighted cigarette in the cupped palm of Claimant's hand. The trainmaster testified that despite five (5) requests by him to examine the item, the Claimant refused, rolled the alleged cigarette in his balm and scattered its contents over the adjacent track. Despite efforts to recover the suspected substance including a consensual search of Claimant by one of Carrier's special agents, no evidence of marijuana was uncovered.

 The Organizatio Claimant was not smo approached by the tr smoking and standing

 the Claimant when the The carman denied hear acknowledged that the more than once what wa

 enough to hear any of t that from his stanctpoin

 organization's second

 saw the trainmaster sea where the Claimant was hear any of the conveys Claimant.

 n presented two witnesses who testified that king a cigarette or insubordinate when he was ainmaster. One carman testified that he was approximately fifteen (15) feet away from

 latter was approached by the trainmaster. ing the start of the conversation, anrr trainmaster could have asked the Claimant s in the letter's hand before he was close

 he conversation. The carman testified t the Claimant was not insubordinate. The

 witness was a hostler who testified that he

 rch the track area by flashlight around standing. However, this witness did not ation between the charging officer and
 Form 1
 Page 3

 Award No. 10397
 Docket No. 10542
 2-SSR-MA-'85

 This Board is unable to find, based on the facts before us., that the determination by the hearing officer of the credibility and weight of the witnesses' conflicting testimony was insufficient to sustain the charge of insubordination. One witness for the Claimant appeared after the alleged insubordination had already occurred. The other witness was only close enough to the conversing parties to hear a portion of what was said between them.

 The record before this Board does not make the decision to sustain the assessed discipline in this appeal a facile one. A, stated in Second Division Awards 10367, 10379, deference to the hearing officer's determination on the question of the credibility and weight of the witnesses' testimony should not be mechanically applied. A careful review of the record before this Board sustains a finding by the hearing officer of sufficient credible evidence in proof of the charge. In addition, the penalty assessed was neither arbitrary, unreasonable or capricious.

 Claim denied.

 -;`fancy

NATIONAL RATLROAD ADJUSTMENT BOARD

By Order of Second Division


Executive Secretary

 Dated at Chicago, Illinois, this 15th day of ~1ay, 1965.