7.






































F orm 1 Award No. 9280
 Page 2 Docket No. 8868
 2-CR-EW-182
 "Appeal from discipline must be made in writing by the employee
 or on his behalf by his union representative to the
 Superintendent-Labor Relations within 15 calendar days after

There is no dispute that the appeal was made beyond the contractually specified 15 calendar day limit and, absent any procedural irregularity on the Carrier's part, the Board would be inclined to dismiss the claim on a procedural basis. But the Organization argues in its letter of November 16, 1979, that filing of the claim did not take place within the contractual specified 15 days because the Carrier failed to provide it with a timely copy of the discipline notice and trial transcript, thus violating Rules 6-A-1, 6-A-4(a), and 7-A-1(a). Rule 6-A-1 states in pertinent part:





The Carrier argues that the Notice of Discipline (Form G-32) was given to the Local President and that nothing in the record supports a claim to the contrary. Careful review of the record, however, tends to confirm the Union's claim that it did not receive the form. In his May 14, 1979 letter to H. A. Laurello, Shop Superintendent of the Collinwood Diesel Locomotive Shop, Local President Charles Steidel states:

Obviously, the Organization must be informed of the discipline invoked before it can legitimately decide whether to appeal. The parties apparently contemplated this when they negotiated Rule 6-A-4(a). That Rule requires that the Claimant's "union representative" be given a copy of the notice of discipline. Elsewhere in the controlling Agreement (Article III-B) the term "union representative" is defined as "an individual certified by the International Brotherhood of Electrical
 Form 1 Page 3

 Award No. 9280
 Docket No. 8868
 2-CR-EW-'82

 Workers". In the instant matter, though, the record does not indicate that the Carrier gave a copy of the notice to anyone but the Claimant.

 On balance, the record is unclear as to whether the Carrier met its obligation under Rule 6-A-4(a). Accordingly, the Board will not regard the Organization's untimely appeal as an automatic obstacle to its jurisdiction to consider the merits of this case. The parties negotiated the language of Rules 6 and 7 to resolve disputes over discipline situations and, given the possiblity that both parties to the instant matter committed procedural irregularities in processing this claim, the Board declares jurisdiction to review the case on its merits.

 The outcome of this case rests on the respective credibility of the Claimant and Foreman Niedermyer. If, as the latter testified, the Claimant simply walked off the job without permission, never mentioned illness, and refused to return, the Carrier's discipline decision should not be disturbed. On the other hand, if the Claimant actually told Niedermyer he was sick and had legitimate concerns about his own safety and that of his fellow employes should he be required to work, his refusal to work may have been justified. There were no witnesses to the 7:05 A.M. conversation between the two men and this Board is unable to determine from the record which of them is the more credible. Therefore, and in accordance with a plethora of previous Board decisions (e.g., Third Division Awards 14356 and 19696, and Second Division Award 8336), we have no alternative but to deny the claim.

 A W A R D

 Claim denied.

 Attest: Acting Executive Secretary
 National Railroad Adjustment Board

NATIONAL RAILROAD ADJUSTMENT BOARD

By Order of Second Division


B,



Dated at Chicago, Illinois, this 4th day of August, 1982.