PARTIES TO THE DISPUTE:
PUBLIC LAW BOARD N0. 2960


Chicago & North Western Transportation Company

 AWARD N0. 38
 CASE N0. 55


(2) Trackman T. E. Kelley shall be reinstated with seniority and ail other rights unimpaired and compensated for all wage loss suffered. OPINION OF THE BOARD: This Boated, upon the whole record and all of the evidence, finds and holds that the employees and the Carrier involved in this - dispute are respectively employees and Carrier within the meaning of the Railway Labor Act as amended and that the Board has jurisdiction over the dispute involved herein. The Claimant was notified on June 18, 1981, to attend an investigation on the following charge:
Ioo - 3B

 Rule G and Rule G (Addition) read in pertinent parts as follows:

Company property while under the influence of, or having
 in their possession while an duty or on Company property,
 (1) any drug the possession of which is prohibited by law;
 (2) any drug belonging to the generic categories of narcotics,
 depressants, stimulants, tranquilizers, hallucinogens, or anti
 depressants; (3) any drug assigned a registration number by
 the Federal Bureau of Narcotics and Dangerous Drugs not _
 included in category (2); or (4) any liquid containing
 alcohol."
 The hearing was held June 26, 1981. The Claimant was dismissed
 July 3, 1981.
 The investigation revealed that on June 17, 1931, the Claimant
 was assigned as a Trackman on 4-R rail gang working in the vicinity
 of Arlington, Nebraska. As the Claimant's gang arrived for work
 on the Company bus that day they were met by Carrier's Special
 Agents who searched all the employees for contraband drugs. The
 Claimant, who was sitting in the front seat of the bus next to
 former employee Rodriquez, was one of the first to be searched.
 The Carrier bases its claim that the discharge was justified .
 on three assertions of fact: (1) They contend that a bag of -
 hashish and four marijuana cigarettes were found on and under
 the seat that the Claimant and Rodriquez occupied and that these -
 belonged to the Claimant; (2) that the Claimant, while standing in
 line to empty his pockets, was observed dropping a small pipe to
 the ground which contained a residue of THC - the active ingredient
 9n marijuana: (3) that a prescription bottle (Triprolidine Pseudoephedrine)
 was.found.in the Claimant's knapsack and contained pills other than what was
marked on the presciption and these pills were a controlled
substance:


The Carrier also discredits the Claimant's defense. Rodriquez, who testified that the marijuana, hashish and pipe :were his, lacked credibility, according to the Carrier. They note that Rodriquez was also involved in the mass search of the track gang but chose to resign rather than submit to a -Company invesigation. Having done so, the witness had nothing to lose -- according to the- Carrier-by claiming that the hashish, marijuana and pipe were his. It is noted by the Carrier that Rodriquez did not declare these items as being his at the time of the search. The testimony clearly shows that the Claimant's witness was lying about the pipe being his and it was reasonable to believe that he was also lying about the hashish.
 The Union notes that Rodriquez admitted that the paraphernalia found on the bus, including the pipe, belonged to him. In view thereof, it is the Union's opinion that the Carrier's decision to dismiss the Claimant was based on conjecture. They suggest that not one iota of direct and substantial evidence was submitted to establish a violation of Rule G. In fact, the evidence presented at the investigation clearly established that the Claimant was not in possession of any drugs which were contrary to the meaning and intent of Rule G. Moreover, the Claimant was unaware of the plastic bag left on the bus. In respect to the pills, they were prescribed to him for a war injury to his ear.
 In respect to the portion of the charges relating to the possession of hashish and., marjuana-on.the.bus, it is the conclusion of the Board that the Carrier has-not.produced substantial evidence. None

of the Carrier witnesses on the bus saw the Claimant with this material in his possession. They simply found the. material on and under the seat after Rodriquez=and Kelley left the bus. In fact, Special Agent Peters admitted that the marijuana cigarettes could have been kicked under the seat by someone else and admitted that they could not tell who they belonged to.
 The Board also concludes that the pills were not shown to be an illegal stimulate. The Carrier based the discharge in this respect on a lab report which showed there was no Triprolidine detected and that there was an amine present. In view that the prescription was for Triprolidine Pseudoephedrine, the lack of Triprolidine does suggest that it was different than what was in thebottle. Indeed, there is a document in the record submitted by the Carrier which shows that all amines are controlled substances. However, notice is taken of the fact that all compounds in the general amine group are not controlled substances. In fact, over-the-counter drugs contain "amines." While the lack of Triprolidine gives rise to speculation that the substance tested wasn't the same as prescribed, it is more significant that no other compounds were discovered. Had the compound in the bottle been different than what the prescription stated, and in particular if it were a controlled substance--the test would, in most probability, indicate the presence of other compounds. It is also noted that Claimant Kelley testified without contradiction that he had advised his foreman, previous to the incident, that he possessed and was taking such a prescription.
 This leaves the Carrier's case to rest on the charges related to
 the pipe. The Carrier's case, in this respect, was based primarily primarily
 on the testimony of Special Agent Elfner.
 The testimony established that after Rodriquez.and two other
 employees left the bus they approached the table and were asked
 to empty their pockets. It was established by the testimony of
 several witnesses--both Carrier and Union--including Special Agent
 Kunz, that Rodriquez was in front and to the left of Kelley. It
 was also noted that there was some confusion among area witnesses
 as to how close Kelley and Rodriquez were, however, there is no doubt
 left after reading the transcript that they were close. Elfner
 testified that he was five to six feet in back of Kelley and to the
 right. Elfner further testified that Kelley went into his front
 pants pocket with his left hand and as Kelley's hand came out of
 his pocket, Elfner saw an object drop to the ground and saw him
 make a couple of motions with his left foot trying to cover it up.
 Elfner then picked the pipe up, put it in the bag with the contents
 of Kelley's other pockets. Both Elfner and Kelley testified that
 Kelley immediately protested that the pipe was not his. When asked
 on direct if he had a clear view of Kelley holding the pipe as he took
 it out of his hand and dropped it, he stated:

 "I was, my view would have been somewhat restricted as far as actually seeing it in his hand, but when he made the movement into his pocket and came out the object fell down and landed on the ground at his left foot." The Union makes special note of Rodriquez' testimony. Rodriquez 'not only. claimed that the;hashisfi and marijuana found-on-the bus were his, but that it was he who'dropped the pipe. He testified

he took it out of his right pocket--the one closest to Kelley--dropped it behind on his own right side and tried to cover it up. He said these actions were undetected by those Carrier officials facing him. He also stated that he didn't claim it as his at the time because he didn't know Kelley was being charged. He heard some loud talk between Kelley and the Special Agent but didn't know the pipe was being pinned on Kelley. It also is significant that another pipe was found on Rodriquez' pack.
 It is axiomatic that the burden is on the Carrier to prove an employee guilty by way of substantial evidence. It has also been held that once the Carrier establishes a prima foci-a case, the burden then shifts to the Employees to overcome that evidence. In this case, while there is some doubt about Elfner's testimony, based on his partially obstructed view, the Board can accept this as prima facie evidence of Kelley's guilt in connection with the possession of the pipe. However, on the other hand, the Board believes that the Employees successfully rebutted the prima facie nature of the evidence and further it is found that the Carrier failed to overcome this defense.
 The Union's defense primarily related to the testimony of Rodriquez that the pipe was his and that he dropped it. This testimony is plausible to that Elfner testified his view was partially obstructed because he was behind and partially to the right of Kelley. Kelley supposedly took the pipe out of his left front pocket with his left hand and Rodriquez took the pipe out of his right front pocket with his right hand and dropped it'sTightly behind him. Because of the-
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      position, Elfner did not see the pipe in Kelley's hand and only saw it drop as Kelley made the movement out of his pocket. Therefore, it is plausible that Rodriquez dropped the pipe at the same approximate time as Kelley was also removing items from his pocket. The transcript leaves the. distinct impression that everyone- was emptying their pockets at the same time. Moreover, it is not unlikely if Rodriquez dropped the pipe in the direction of Kelley that Kelley would try to kick it away.

      There.are other factors of evidence in the transcript which bolster the Claimant's defense. These factors standing alone wouldn't overcome the prima facie nature of the case but are additive to the Organization's defense based on Rodriquez' testimony. One such factor is the general confusion among Carrier witnesses regarding the position of Carrier officials at the inspection relative to that of Kelley and Rodriquez. Not only was there contradiction among the witnesses as to everyone's relative position but some witnesses seemed to change their story regarding everyone's position on recall. If the Carrier expects to sustain their burden of proof, there must be more precise corroboration between witnesses.

      The Carrier sought to overcome Rodriquez' testimony by attacking his credibility. However, just because Rodriquez admitted a crime does not automatically and per se make his testimony meaningless or incredible. The Carrier says the fact he resigned means he hasn't anything to lose and this affects his credibility. This is not necessarily true. There was no evidence of a special relationship between Kelley and Rodriquez which would be a motivation to lie.

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                  '39~a'38


Moreover, meaningful weight must be given to his testimony because his testimony was an admission against interest. In this respect, it could be said he had a great deal to lose by testifying as he did. Presumably, he resigned rather than face an investigation for the facts could establish his guilt, thus affecting his ability to gain employment and the possibility of criminal prosection. He was under no duty to testify but yet after resigning he, of his own free will, came back and made an admission of unlawful actions, i.e. the possession of marijuana, hashish and the pipe with traces of marijuana in it. If someone is going to take the risk of admitting unlawful acts, this bolsters his credibility in the context of this case. Moreover, his testimony about possession of the drugs coinci-des with the possession of the pipe. It as likely he would have a pipe or pipes if he also --as he admitted--had the marijuana and hashish.
 Certainly the Hearing Officer hasthe right to resolve conflicts and assess credibility. This is not the Board's function. However, the Board 9s bound by such a deference only where those resolutions are supported by substantial evidence. In this case, the decision to discredit Rodriquez' testimony,was not supported by substantial evidence. Therefore, it is concluded that the Rodriquez testimony, in conjunction with the facts and circumstances of this case, served to convince the Board that the Carrier failed to rebut the adequate defense put forth by the Employees.

 AWARD: Claim sustained. Carrier directed to reinstate the Claimant
    . and- pay him.for all time lost consistent with the Agreement.

i Vernon, airman

 H. G. Harper, Empl,Oye Member

 Date: ~/,a 49PI
Crawford, Carrier Member