Fourth Division Award No. 4585 (Zusman)

Adopted November 19, 1987

"Turning to the procedural issue raised on the property, there is agreement on the following facts. The Claim was filed on February 5, 1985, and received by the Carrier on February 7, 1985. The Carrier's declination letter was dated April 5, 1985, and postmarked on the 60th day, April 8, 1985. It was received by the Organization on April 11, 1985. The relevant Rule on time limits is Article 21(a) which states in pertinent part:

"`Should any such claim or grievance be disallowed, the Carrier shall, within 60 calendar days from the date same is filed, notify the employee or his representative of the reasons for such disallowance. If not so notified, the claim or grievance shall be considered valid and settled accordingly. . . .'

"It is the position of the Organization that the Rule has been violated in that the denial letter was not received by the Organization until April 11, 1985. Since the letter was not received within the 60 days, the Claimant's representative was not notified. The Organization submits as evidence prior Claims settled on the property and a long list of Awards sustaining its position.

"The Carrier denies any procedural violation in that the letter was prepared on April 4, dated April 5 and mailed on April 8, 1985 which `was still within 60 days of Carrier's receipt of the instant claim.' The Carrier maintains no violation occurred and numerous Awards sustaining its position are presented.

"This Board has reviewed the past settlements and finds that they are not germane to the issue at bar. In those cases, unlike this, the Carrier failed to respond. Here the Carrier responded on the 60th day and the question at bar is whether this response complies with the Agreement's provision to notify.

"The key word to be interpreted is `notified.' After reading all of the Awards cited by both the Organization and Carrier, it is clear that interpretations of similar Rules have gone in different directions. Awards have held that to notify has meant to have receipt of the denial in the hands of the Organization by the 60th day (Fourth Division Awards 4477, 4310, 4309, 3615; Third Division Awards 25537, 18636, 18004, 15443). Other Awards have held that notification occurred when the letter of denial was postmarked (Fourth Division Award 3234; Third Division Awards 24530, 10490; Second Division Award 8725).

"This Board follows the reasoning of those Awards that have held that notification cannot have occurred until the receipt is in the hands of the employee or his representative. As stated in Fourth Division Award 4309:

"`A claim is "filed" with the Carrier when it is received by the Carrier and the Claimant is "notified" by the Carrier when the disallowance is received by the Claimant.'

"Given the procedural violation by the Carrier this Board cannot reach the merits of the dispute, but must sustain the Claim as presented."

Fourth Division Award No. 4586 (Zusman)

Adopted November 19, 1987

"Nevertheless, this Board follows Decision No. 16 of the National Disputes Committee and the large number of Awards that have thereafter held that notification requires receipt. As stated by Fourth Division Awards 4309 and 4310:

"`. . . the common and ordinary meaning of the word "notify" denotes delivery to and receipt by the party to be notified. Therefore, a claim is "filed" with the Carrier when it is received by the Carrier and the Claimant is "notified" by the Carrier when the disallowance is received by the Claimant.'

"In the instant case the Claimant was not notified within 60 days as per Article 21. This interpretation of notification is consistent with recent Fourth Division Award 4477. As such, the Claim must be sustained and we cannot reach the merits. As a continuing Claim, the Carrier's liability ceased as per NDC Decision No. 16 on the date of receipt, i.e., on April 11, 1985."

Fourth Division Award No. 4588 (Zusman)

Adopted November 19, 1987

"The procedural issue herein is the same as resolved in Award Nos. 4585 and 4586. In all of these cases, Article 21(a) requires Carrier notification of denial within 60 calendar days. Here, as in Award Nos. 4585 and 4586, the Carrier prepared the letter prior to Good Friday, April 5, 1985, and actually mailed it after the weekend on the 60th day.

"The Organization argues with extensive Award support that to notify is to be in receipt of the denial (Fourth Division Awards 4310, 4309, 3615; Third Division Awards 25537, 18636, 18004, 15493). It is not contested that the Claimant was not in receipt of the denial.

"The Carrier argues also with extensive Award support that to notify is to postmark or mail the denial within 60 days. (Fourth Division Award 3234; Third Division Awards 24530, 10490; Second Division Award 8725.) It is not contested that the denial was postmarked within the 60 days.

"In the above Awards (Fourth Division Awards 4310, 4309, 3165), as in this Award, the Board rejects the Carrier's arguments. We concur with the reasoning of Fourth Division Award 4477 and Award Nos. 4309 and 4310 which stated that `the common and ordinary meaning of the word "notify" denotes delivery to and receipt by the party to be notified.'

"As the Carrier failed to notify the Organization of the denial of the Claim, the Claim must be sustained without our reaching the merits of the case. The Carrier's liability is only to the date of the receipt of denial."

Fourth Division Award No. 4592 (McAllister)

Adopted February 18, 1988

"The Organization argues that the Carrier violated the provisions of Rule 17 when it failed to timely respond to an appeal on two occasions. Rule 17 requires that discipline appeals be answered within thirty days of date of receipt.

"Claimant was notified of his dismissal by letter dated Thursday, October 3, 1985. The next day, Friday, October 4,1985, his General Chairman filed an appeal. This appeal was answered by letter dated November 13, 1985. Four days later on Sunday, November 17, 1985, a second appeal was addressed to the next highest appeal officer. This letter specifically referenced Carrier's untimely denial of the first appeal. The second level appeal was denied in a letter dated December 17, 1985 but bore a December 18, 1985 postmark.

"It is arguable whether or not the second appeal was answered late. This is not the case with the first appeal. Clearly, it was not responded to within thirty days. In defense of its late denial, Carrier suggests that Organization, upon its receipt, should have gone back seeking clarification of the delay instead of immediately appealing the matter further. Purportedly, additional handling at Level One might establish that the answer was made within thirty days of the date of actual receipt. It also argues that, in any event, there is no showing that the rights of the Claimant were prejudiced in any manner or that he was somehow placed in a disadvantageous position as a result of the late answer.

"Neither argument is persuasive. The Organization need not explore the cause for a time limit breach. If the Friday, October 4, 1985 letter was not placed in the mail until Monday and was further delayed in delivery so its receipt was within thirty days of the November 13, 1985 answer, it was the duty of the Carrier to raise and perfect these facts. Furthermore, the time limit provisions are not intended to come into play only upon a showing of prejudice or being placed in a disadvantageous position.

"Rather, compliance with time limit requirements are mandatory for both parties. In Third Division Award 18335, we held:

"`the record clearly disclosed that Carrier failed to comply with the mandatory requirements of Rule 8(b) of the Agreement in that the officer appealed to did not render a decision within five (5) days after the date of the appeal hearing, and, therefore, we will sustain the claim.'

"Also see Third Division Awards 19666 and 21966.

"Accordingly, we hold that Carrier violated Rule 17 when it failed to timely respond to an appeal of the discipline imposed in its October 3, 1985 letter. This violation voids the discipline and requires that the claim of the Organization be sustained. Claimant, who had been returned to service as a Machinist within six months of his dismissal, shall be reinstated to his position under the Supervisors' Agreement and paid for net wage losses incurred as provided for in Rule 17(e)."

Third Division Award No. 15443 (Dorsey)

"Petitioner moves that the Claim be allowed as presented on the grounds that the Carrier's highest officer failed to deny it, giving his reasons in writing, within 60 days plus an agreed-upon extension of 30 days, as required by Article V of the August 21, 1954 National Agreement. The appeal was received by the highest officer on January 8, 1962. This is the date from which the time limitation runs. See National Disputes Committee Decision No. 16. In computing the time limitation the day of receipt by the highest officer is not counted; but, the written denial must be in the hands of the organization not later than on the last day of the time period."

Third Division Award No. 18004 (Dugan)

"The Organization raises a procedural defect, claiming that Carrier's declination of the claim, by letter dated October 19, 1968, although postmarked Saturday, October 19, 1968, was not received by the Organization's General Chairman until Monday, October 21, 1968, more than 60 days later, and thus Carrier violated the time limit provisions of Article V of the August 21, 1954 Agreement.

"The Carrier contends that the time limit rule requirements were satisfied when the written letter of declination was `mailed' by U. S. Mail on October 19, 1968, which would bring it within the 60 day period provided by said Article of the 1954 Agreement.

"Therefore, the procedural issue to be decided herein is whether or not Carrier met the requirements of Article V of the August 21, 1954 Agreement (also Rule 29, Section 1(a) of the Agreement) when it `mailed' the written letter of declination to the General Chairman.

"It is undisputed that the letter of declination was not `received' by the Organization within the 60 day time limit provisions of said Article V of the August 21, 1954 Agreement.

"We find this Board's Award No. 15443 controlling in the determination of this dispute. As was concluded in said Award No. 15443:

"`. . . In computing the time limitation the day of receipt by the highest officer is not counted; but the written denial must be in the hands of the organization not later than on the last day of the time period. . . .'

"Inasmuch as the written letter of declination was not in the hands of the Organization not later than on the last day of the time period, then Carrier violated the Agreement in this instance . . . ."

Third Division Award No. 18636 (Devine)

"The record in this docket reflects a procedural defect under the parties' Decision CL-51 (Article V of the August 21, 1954 National Agreement governing time limits for handling and progressing claims and grievances), in that the appeal timely presented to the Chief Mechanical Officer on July 8, 1969, was denied by that Officer's successor in letter dated September 9, 1969 and actually received by the General Chairman on September 12, 1969, sixty-six (66) days after appeal had been made, thereby exceeding by six (6) days the 60-day time limit proviso.

"The record indicates, however, that the claim before the Board has been allowed by the Carrier under the provisions of the time limit rule."

Third Division Award No. 21969 (Hamilton)

"This Division has held that where, as in this case, the Local Chairman does not receive a reply from the Trainmaster, timely denying the claim, the same must be sustained."

Third Division Award No. 25537 (Roukis)

"In our review of this case, we concur with the Organization's position. Admittedly, while there is a dichotomy of judicial perspectives on what constitues (sic) effective notification under Rule 48(a), we believe that the reasoning set forth in the Awards referenced by the Organization is more in accordance with the contemplated intent of Rule 48. By definition, balancing the reciprocal obligations or presenting a timely Claim and answering said Claim implicitly requires a faithful literal adherence to the applicable provision's specific time requirements. In essence, a Claim is filed or appealed when received by the officer authorized to receive same. (See Third Division Award No. 22799.)

"In numerous Awards of the National Railroad Adjustment Board, the Board took the position that a written denial must be in the hands of the petitioning Organization not later than on the last day of the time period. See Third Division Award No. 15443. Timely receipt was considered the essential determinant. In Third Division Award No. 18004, the Board reiterated this interpretative construction and voided the employer's written denial when it was not received by the affected Organization by the last day of the time period. The Fourth Division followed this same line of reasoning. In Award No. 3615, the Fourth Division sustained the Claim when the denial letter was not received by the Organization within 60 days.

"In the instant case, the 60 days time period was activated on September 26, 1981. November 25, 1981, was the 60th day. Inasmuch as the letter postmarked on November 23, 1981, was not received by the BRAC Division Chairman until November 28, 1981, the response was untimely. The denial was not received by the Organization within 60 days. Accordingly, consistent with the decisional rationale expressed in the more persuasive Awards cited herein, we are compelled to sustain the Claim."

Fourth Division Award No. 3615 (Twomey)

"It is undisputed that the Organization did not receive notification that the claim was denied until after the 60-day period had expired, and the clear language of the rule would appear to support a finding that the time limit was violated.

"NDC Decision No. 16, which constitutes a recognized mutually agreed-upon interpretation of Article V of the August 21, 1954 Agreement, found that a claim shall be considered `filed' on the date it is received by the Carrier; and it also found, in the matter of a continuing claim where the carrier had failed to deny a claim within the time limits, that the date of the late receipt (not the posting or mailing date) of the Carrier's denial letter stopped the Carrier's liability arising out of failure to comply with Article V. In NDC Decision No. 16 then, the parties, with full knowledge of the inconsistent precedents of this Board, agreed that receipt by the Carrier and the Organization was the critical factor.

"After the decisions of the National Disputes Committee of March 17, 1965 a clear pattern of decisions of this Board focused on the date a belated denial of a continuing claim was received by the Organization as the date on which the Carrier's liability for the continuing claim ceased. (See for example Third Division Awards 14502, 14603, 17667 and 17999.) After the decisions of the National Disputes Committee, Third Division Award 15443 (Dorsey) stated:

"`Petitioner moves that the Claim be allowed as presented on the grounds that the Carrier's highest officer failed to deny it, giving his reasons in writing, within 60 days plus an agreed-upon extension of 30 days, as required by Article V of the August 21, 1954 National Agreement. The appeal was received by the highest officer on January 8, 1962. This is the date from which the time limitation runs. See National Disputes Committee Decision No. 16. In Computing the time limitation the date of receipt by the highest officer is not counted; but, the written denial must be in the hands of the organization not later than on the last day of the time period. The 90 days limitation in this case terminated on April 8, 1962. The General Chairman received the denial on April 9. Since this is a continuing Claim, we find that Carrier violated the Agreement, but its liability arising from the violation stopped on April 9, 1962. NDC Decision 16.'

"In Third Division Award 18004 (P. C. Dugan) the Board found Award No. 15443 controlling:

"`Inasmuch as the written letter of declination was not in the hands of the Organization not later than on the last day of the time period, then the Carrier violated the Agreement in this instance.'

"The evidence is conclusive that the denial letter was not received by the Organization within 60 days. Based on the clear language of the Agreement, the logic of NDC Decision No. 16, Third Division Awards Nos. 15443 and 18004, and the lack of extenuating circumstances as found in Award No. 18881, we must sustain this claim as presented. Clearly under the Agreement, this shall not be considered a precedent or waiver of the contentions of the Carrier as to other similar claims or grievances."

Fourth Division Award Nos. 4309 and 4310 (Miller)

Held in identical language:

"Concerning threshold issues, the Organization and the Carrier are entitled to have cases decided on their merits unless it is clear that one of the parties has not complied with a provision of the Agreement. In this case, the Organization and the Carrier have cited numerous awards in support of their different interpretations of the word `notify' (Rule 24 - Time Limits). We conclude from these awards and from arguments presented in this case that the common and ordinary meaning of the work `notify' denotes delivery to and receipt by the party to be notified. Therefore, a claim is `filed' with the Carrier when it is received by the Carrier and the Claimant is `notified' by the Carrier when the disallowance is received by the Claimant."

Fourth Division Award No. 4577 (Muessig)

"The Carrier essentially argues that the controlling Article requires that the Organization be notified (as distinguished from receive) of the action within 60 days. Under its construction, because the declination letter was posted on the 60th day (April 8) from the date of receipt (February 7), the Claim was properly and timely denied.

"The Organization principally contends that `notify,' as used in Article 21(a), means receipt of the Claim or receipt of the decision. In arriving at its construction of the language at issue it mainly relies upon the National Disputes Committee (NDC) Decision No. 16.

"Both parties have submitted numerous past Awards which they argue support their respective positions in this matter. We have thoroughly studied these before arriving at our determination in this matter.

"We agree with the Organization with respect to its time limit arguments. Rule 21 flows from the 1954 National Agreement. NDC Decision No. 16, a mutually agreed-upon interpretation, held that `notify' was meant to be `receipt' by the Carrier and the Organization.

"With respect to the monetary portion of the Claim, we again embrace the pro rata concept as the measure of work lost, thus the Claimant will be awarded eight hours pay at the straight time rate."

Third Division Award No. 27652 (Zusman)

"The Carrier denied any violation of the Agreement pointing to the June 4, 1984 letter from the Chief Engineer to the District Representative regarding the painting of signal equipment. However, Carrier's letter of denial dated May 20, 1985, denied the appeal of the Organization dated February 5, 1985.

"The Organization argues that Carrier violated Rule 35 which states in pertinent part:

"`All claims...must be presented in writing... to the officer of the Carrier..., within 60 days...Should any such claim...be disallowed, the carrier shall, within 60 days from the date same is filed, notify whoever filed the claim...in writing of the reasons for such disallowance. If not so notified, the claim...shall be allowed as presented...'

"This Board has carefully reviewed the record. The Carrier's letter of denial is in violation of the 60 day time limits established. The dates on the letters are probative evidence of the violation.

"Carrier argues that an understanding was entered into wherein the time limits for the Claim would be extended. We have searched the record for evidence to support this affirmative defense. Carrier's representative to the discussion of March 14, 1985, in North Billerica submitted no supporting affirmation. The Board finds no evidence of a mutual agreement to extend the time limits. In the absence of such evidence, the extension by the Carrier was unilateral and violative of the Agreement (Third Division Award 19974).

"The Board holds that the Carrier violated the Agreement and sustains parts (2) and (3) of the Claim on procedural grounds without reaching the merits. The Carrier's liability ceased on May 20, 1985, the date of the late denial (Third Division Awards 26329, 24269; Fourth Division Award 4588)."

Fourth Division Award No. 4439 (O'Brien)

"On December 15, 1982, the Employees wrote to the Carrier advising that the sixty (60) day time limit set forth in Rule 4-K-1(c) had been violated since Trainmaster Neighbor failed to deny the aforementioned Claim within the requisite 60 day period. It is the Employees' contention that the Claim was properly submitted in accordance with Rule 4-K-1(a); and since it was not denied within the 60 day time limit, it must be allowed. The Carrier retorts that the Employees failed to comply with Rule 4-K-1(a) when they addressed their Claim to the wrong address. According to the Carrier, Trainmaster Neighbor's address is Fishouse Road (or Old Fishouse Road) So. Kearney, N.J. It submits that Trainmaster Neighbor never received the Claim since it was mailed to the wrong address. Consequently, in the Carrier's judgment, inasmuch as the Claim was not presented in the manner prescribed by Rule 4-K-1(a), it was invalid at its inception.

"The central question to be resolved by this Board is whether the Employees complied with the requirements of Rule 4-K-1(a) when it filed its Claim; or whether the Carrier failed to comply with Rule 4-K-1(c) by not denying said Claim within 60 days? Under the particular facts of this Claim, it is our considered Opinion that it was the Carrier that violated the Agreement by not denying the Claim within 60 calendar days from the date the Claim was presented.

"Despite what the Carrier avers, we find that the Claim was `presented, in writing, to the yardmaster's immediate supervisor' as required by Rule 4-K-1(a). The Claim was mailed to Claimant's immediate Supervisor, Trainmaster Neighbor, at Carrier's Terminal headquarters and was accepted on his behalf by a Clerk working there. That the Clerk who accepted the Claim was not, in fact, Mr. Neighbor's Clerk; or that she did not even know Trainmaster Neighbor is not relevant to the issue before us. The Clerk certainly could have refused to accept the Certified Letter. By not doing so, she led the Claimant and his representative to assume that she was authorized to accept mail on Trainmaster Neighbor's behalf.

"While the Clerk at 405 Division Street, Elizabeth, N.J. may not have been Trainmaster Neighbor's actual agent, she unquestionably acted on his behalf when she accepted the Claim in question by signing the Certified Mail receipt. That this Claim was never submitted to Trainmaster Neighbor was strictly an internal management matter. However, this misplacement of the Claim after it had been received by Mrs. Soveiro did not render the initial claim invalid, in our judgment.

"This Board wishes to stress that we are not faced with a situation where an aggrieved employee totally disregarded the work location of his immediate Supervisor when he presented his Claim. Rather, the Claim was mailed to Carrier's Terminal Trainmaster at its Terminal Headquarters. The Claimant was unaware that Trainmaster Neighbor did not work there. Evidently he had never been furnished Trainmaster Neighbor's correct address.

"The language of Rule 4-K-1(c) is quite explicit. Since the Claimant in question was not notified, in writing, within 60 calendar days from the date his Claim was presented that it had been disallowed, the Claim must be allowed without addressing the substantive issues raised by said Claim. Naturally, damages are limited to the period September 3, 1982 - October 12, 1982, the date on which the Claimant resigned as Yardmaster."

Fourth Division Award No. 4716 (Marx)

"The record clearly shows that the Carrier failed to meet the time limits for reply to appeal at various levels, as provided in Rule 16. During conference which eventually was held, the Carrier offered to lift the reprimand notice, but it did not address that part of the original Claim concerning the two days' pay. On this basis, the Organization brought the dispute to the Board.

"In order to maintain their respective positions as to an ongoing dispute, both parties are required to meet time limits which they set forth in Rule 18. The Carrier's failure to do so leaves the Board without recourse other than to sustain the Claim as originally presented. While the Claim does combine a protest of discipline with a protest as to loss of pay, this does not make it improper."

Third Division Award No. 29163 (Goldstein)

"Carrier contended on the property that the claim was improperly filed and that it was not received by the Division Engineer, the officer designated to receive claims, until February 23, 1987. In its Submission before the Board, Carrier argued for the first time that the Division Engineer in Baltimore was the only authorized Carrier Officer to receive claims, and that, since the Organization had been properly notified of that fact, the original claim was sent in error to the Division Engineer in Pittsburgh, Pennsylvania. We are precluded from considering this information, however, as it was not raised during the handling of this dispute on the property. Given the state of the record actually before us, we are compelled to conclude that Carrier's general assertions on the property cannot serve to defeat the Organization's claim. The evidence shows the claim was filed on February 20, 1987, when a Carrier agent acknowledged receipt thereof. The Organization asserted that the claim was properly addressed and presented to the officer, Division Engineer C. L. Bailik, authorized by the Carrier to receive claims. If the Organization was in error, Carrier was obligated to demonstrate that fact with probative evidence on the property. Instead, the record shows that the claim was disallowed by Division Engineer Hardy on April 24, 1987, beyond the 60-day time limit. The claim must be allowed as presented."

Second Division Award No. 12346 (McAlpin)

". . . The 60-day time limit and Rule 28 place a burden on both parties. The language of Rule 28 is exceptionally clear and does not allow this Board any latitude. In any event, the Carrier offered no defense at all for its late declination. Therefore, in accordance with the specific provision of Rule 28 which was quoted above, the Board finds that it has no choice but to sustain the Claim as presented. The Board will order the Carrier to offer to reinstate the Claimant within 60 days of the receipt of this Award subject to the Claimant's successfully passing a back-to-work physical. The Board will not address the merits of this case in accordance with Rule 28."

Third Division Award No. 29481 (Meyers)

"This Board has reviewed the record and we find that the Carrier's response to the Claim was not timely filed. Therefore, the claim must be sustained.

Rule 21 of the parties' Agreement states in part:

"`1(a). All claims or grievances must be presented in writing by or on behalf of the employee involved, to the officer of the Carrier authorized to receive same, within 60 days from the date of the occurrence on which the claim or grievance is based. Should any such claim or grievance be disallowed, the Carrier shall, within 60 days from the date same as filed, notify whoever filed the claim or grievance (the employee or his representative) in writing for the reasons for such disallowance. If not so notified, the claim or grievance shall be allowed as presented, but this shall not be considered as a precedent or waiver of the contentions of the Carrier as to other similar claims or grievances.'

"A review of the record in this case reveals that the Organization filed the claim giving rise to this dispute on February 16, 1988. The claim sought a remedy for the Claimant beginning in January 5, 1988, and continuing until such time as the Claimant is restored to the position. The record also reveals that the Carrier did not respond to the claim until April 22, 1988. Since 66 days elapsed between the filing of the Organization's claim and the issuance of the Carrier's response, the claim must be allowed pursuant to the terms of Rule 21."

Third Division Award No. 29496 (Wallin)

"According to the on-property record, the Claim was dated and placed in the Carrier mail on September 12, 1990. Carrier's officer acknowledges receipt on September 14, 1990. Carrier's denial is dated November 14, 1990.

"The Organization asserts that the Claim was not denied until 63 days after filing. The Carrier, contending that the time limits run from the day of receipt, does not dispute that its denial was dated 61 days after filing.

"It is not necessary for this Board to interpret the Agreement and construe when the Claim was filed. Even under the construction most favorable to the Carrier, its denial was untimely by at least one day. And while this is a small amount of time, the requirements of Rule 28 of the Agreement are clear and unambiguous. Since the Carrier's denial was untimely, the Claim must be allowed."

Third Division Award No. 30785 (Eischen)

"Carrier's denial of the three claims was appealed in a letter dated April 23, 1991. The time limit for Carrier's response expired on June 23, 1991 with no response received by the Organization. By letter dated July 8, 1991, the Organization notified Carrier of the 'time limit violation' due to Carrier's failure to respond to the April 23 letter, and requested payment of the claims as presented. The three claims were discussed in conference on October 8, 1991, and Carrier continued to deny the claims. With regard to the time limit violation, Carrier asserted that denials were sent and postmarked June 22, 1991 and provided an unsworn statement from a secretary that she had posted them by regular mail. It is noted that the claim was submitted to Carrier via Certified mail, return receipt requested. Carrier responded by a different channel of communications at its peril and has failed to carry the burden of showing a timely denial. See Third Division Award 28182 and Second Division Award 11927. Carrier's failure to comply with applicable procedural time limits, set forth in Rule 4-K-1(b) of the Agreement, triggered the provision in that Rule establishing that when such notice is not provided, 'the claim will be allowed as presented.' Based upon the foregoing, these claims must be sustained. (The IBEW appeared as a Third Party at Interest in the Board proceedings to present its views on the merits of the case. Since the case was decided on the basis of the time limits, no comment regarding the merits is necessary or appropriate.)"

First Division Award No. 24651 (Dennis)

"Claimant was cited, tried, and found guilty of riding on the brake platform of a car. He was dismissed from service on November 9, 1993, as a result of that incident. The Organization alleges that on November 18, 1993, Local Chairman Roebuck addressed a Letter of Appeal of the dismissal to Superintendent Chisum and hand delivered it to him. On December 17, 1993, the Superintendent addressed a letter to Claimant reinstating him on a leniency basis effective December 20, 1993. Superintendent Chisum did not respond to the Local Chairman's November 18, 1993, Letter of Appeal. On March 5, 1994 (after a 106-day period), the Local Chairman addressed a letter to the Superintendent citing the expiration of the time limits within which he was required to respond to Claimant's November 18, 1993, appeal of his dismissal. Carrier responded by indicating that there was no record of the November 18 appeal being received in the Superintendent's office and, consequently, declined the claim in its entirety.

"At the outset, the issue is did the Superintendent ever receive the November 18, 1993 appeal letter and did Carrier fail to properly respond, if the letter was received by him?

"After a review of the record, including a dated stamped copy of the November 18, 1993, appeal letter, this Board can only conclude that the Superintendent was properly served with the appeal, as contended by the Organization, and he did not reply to it. The fact that the Superintendent returned Claimant to work on a leniency basis after he was held out of service for forty-six days does not substitute for a proper reply of the Superintendent to the November 18, 1993, appeal letter.

"Article 6, Time Limit on Claims Agreement, Paragraph 4 of the Agreement, is controlling in this dispute. It reads as follows:

"'When an appeal time claim is disallowed or modified by the superintendent, such notice of disallowance must be in writing and state in detail the reasons for correction or disallowance within ninety days of receipt of the written appeal; otherwise the claim will be considered valid and settled accordingly. . . .' (emphasis added).

"There is no evidence in the record to indicate that Carrier officials met the requirements of this language. Failure to do so leaves no alternative to this Board but to impose its conditions. Consequently, this claim must be sustained on the time limit error and there is no need to reach the merits of the case."

Fourth Division Award No. 4990 (Zusman)

"The central procedural issue is the applicability of Article 22(b) which states:

"'A decision shall be rendered within twenty (20) days after completion of investigation, with copy to the Regional Chairman and charged employee.'

"Although this Board continues its reluctance to resolve any discipline issue on procedural grounds, it must uphold the negotiated Agreement. Herein, the Carrier does not deny its failure to timely comply with Article 22(b). Instead the Carrier makes several arguments. First, the Fourth Division Award 4712 found that Rule 22(b) did not specifically mandate a time requirement for providing a transcript. Second, that until the Investigation is transcribed, it is not complete. Third, that any delay to the Claimant in obtaining either the decision or transcript did not prejudice the appeal of discipline. Finally, that Fourth Division Award 4786 held that although the Regional Chairman should have received the notice, the violation was not sufficient to overturn discipline where, as here, the General Chairman received notice.

"This issue has unfortunately been visited previously. This Board reviewed all Awards submitted by the parties (including First Division Award 15579, 13845 and Second Division Award 2466). The Carrier erred in relying on Fourth Division Award 4712 which does not refer to Article 22(b) but Rule 12(b). In this instance, Article 22(b) supra, is clear. At the end of the Investigation, the Carrier was directly put on notice by the General Chairman that the transcript and decision were to be sent to the Regional Chairman as per Article 22. This was not done.

"The time limits of the Agreement are set by the negotiating parties and this Board lacks authority to put them aside. We have held that repeatedly (Public Law Board No. 3975, Award 1; Fourth Division Awards 4211, 4278). As stated in Fourth Division Award 4662:

"'In its brief and before this Board Carrier has argued that Claimant's right to appeal was not in any manner prejudiced by the delay in the assessment of discipline. The language of the time constraints provided within paragraph (b), supra, as well as those in paragraph (c), under which an employee taking an appeal must do so within 15 days, are not conditioned on whether decisions or appeals made out of time would be prejudicial. The parties that drafted the Rule did not see fit to excuse each other in non-prejudicial circumstances. We cannot do it for them.'

"The claim will be sustained without consideration of the merits of the discipline.

"As these Awards are between the same parties and as we find no reason to find fault with their logic, the Board applies the doctrine of res judicata."

Third Division Award No. 32037 (Yost)

Rule 4-K-1(a) (supra) is a self-executing Rule as it specifically states that if a claim is to be denied, Carrier will do so within 60 days of the date filed and failing to do so, the claim will be allowed as presented. The Board will comply with the mandate of the Rule. The claim as presented will be allowed. We will not address the merits.

Public Law Board No. 5389, Awd. 1, Case 1 (Sickles) (UTU/Buffalo & Pittsburgh)

"Unquestionably, Article 21, A and B impose thirty (30) day time limitations upon the Organization for presentation, and appeal to the highest designated officer. Article 21 A requires the Company to disallow within thirty (30) days. In order to continue the grievance or claim, the Organization must appeal to the highest designated officer. To be sure, Article 21 B, per se, does not state a time period for disallowance by that Carrier official, but, Article 21 C clearly states that the procedure outlined in the two preceding paragraphs pertaining to decision by the Company "...shall govern in appeals to each succeeding officer..." The only exception deals with the six (6) month limitation on an appeal to the NRAB or a Board of Adjustment from the decision of the highest officer. There is no exception stated on a time limitation of the decision of the highest officer. Thus, the only permissible construction of Article 21, A, B and C requires the highest officer to disallow in the same manner as in Article 21A concerning the initial disallowance, i.e. thirty (30) calendar days from the date it is presented to him."

Public Law Board No. 5454, Awd. 2, Case 2 (Fletcher) (UTU/Burlington Northern RR)

"Failure to timely hold such an investigation after Claimant placed Carrier on notice that he was exercising his yardmaster seniority following his termination of his connection with the exempt position is a fatal flaw."

Public Law Board No. 5902, Awd. 14, Case 14 (Peterson) (UTU/Norfolk Southern Rwy)

"Although Rule 18 is silent with respect to when argument must be advanced relative to a violation of time limits, certainly a rule of reason called for the Claimant to have communicated his purportedly not having received any information about the claim in a timely manner. We do not believe that the rule may be read as having intended that a Claimant may sit idly by and wait some indeterminate or unreasonable period of time to place the Carrier on notice that it had failed to comply with the applicable procedural time limits so as to accumulate a windfall settlement."

Public Law Board No. 5902, Awd. 11, Case 11 (Peterson) (UTU/Norfolk Southern Rwy)

"In study of the record the Board is satisfied that a denial of the claim was made in full compliance with the time limitations of Rule 18 of the Agreement. When the issue first arose on the property the General Manager made the following statement in a letter of August 22, 1997: 'The Superintendent did decline your appeal in a timely fashion and attached is a copy of the declination.' In this latter regard, the Carrier presented into the record copy of the claim as received in the Superintendent's office under date of June 6, 1997, with a stamped and signed notice of declination of the claim that was dated July 1, 1997. The claim was thereafter appealed in a contention that the Organization had never received the notice of declination, albeit nothing of record shows or suggests why it should be held that this particular denial was made in other than the then accepted method by use of the regular mail services of the United States Postal Service."

Public Law Board No. 5980, Awd. 1, Case 1-4 (Peterson) (UTU/CSX Trans.)

"Under the circumstances, the Board finds that the instant claims must be denied for a failure to be in compliance with the time limits as prescribed within the aforementioned agreements."

Public Law Board No. 5046, Awd. 4, Case 4 (Mason) (UTU/CSX)

"It is too well established to require citation of authority that the time limits provisions in a negotiated contract MUST be complied with by all parties. If a claim is not presented - that is received by the Carrier - within 60 calendar days from the date of occurrence, it will be dismissed as untimely. Conversely, if a properly presented claim is not disallowed within 60 calendar days from the date received it will be 'considered valid and settled accordingly."
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